Angulo Murcia (Migration)

Angulo Murcia (Migration) [2018] AATA 862 (28 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Carmen Amelia Angulo Murcia
CASE NUMBER:  1725073
DIBP REFERENCE(S):  BCC2017/3703223
MEMBER:Jane Marquard
DATE:28 March 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.
Statement made on 28 March 2018 at 8:46am

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 – Tourist stream – Stayed consecutively for 12 months in Australia – Current holder of a bridging visa – Wishing to spend time with family members – No exceptional circumstances
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994 Schedule 2 cl 600.211, 600.215, 600.221, 600.222

CASES
An v Minister for Immigration and Citizenship [2007] FCAFC 97
Wang v Minister for Immigration and Multicultural and Indigenous Affairs. [2005] FMCA 918
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 12 October 2017 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 10 October 2017. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream.
The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.600.211, which requires the visa applicant to satisfy the Minister that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. Clause 600.215 requires that if the grant of the visa would result in the applicant remaining continuously in Australia for more than 12 months, then an applicant must demonstrate that exceptional circumstances exist for the grant of the visa.
DEPARTMENT’S DECISION
The delegate of the Department of Immigration and Border Protection (the Department) noted that the applicant had last arrived in Australia on 11 March 2017 as the holder of a FA-600 visa which ceased on 11 March 2018. She is currently the holder of a Bridging visa A granted in association with her FA 600 application. She has remained continuously in Australia since her last arrival on 11 March 2017. In her application for this visa the applicant stated her reasons for further stay as “to strengthen my relationship with my granddaughter and to provide support to my son’s family.”
The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.215. The delegate noted that cl.600.215 required that an applicant who applied for a subclass 600 (Visitor) visa in Australia, and for whom the grant of a further visa would result in that applicant staying in Australia consecutively for more than 12 months, had to demonstrate that exceptional circumstances existed for the grant of the visa. The delegate found that the applicant had not met the requirements of the mandatory clause 600.215 by demonstrating exceptional reasons for the grant of the visa.
EVIDENCE BEFORE THE TRIBUNAL
The applicant’s son wrote to the Tribunal on 15 October 2017. He said that the family had made plans for further travel according to his, and his wife’s, work schedules. He said that the applicant takes care of their daughter during the day, while visiting and spending quality time with her friends in Canberra and nearby regions. If the applicant had to leave on short notice, there is no guarantee they would secure a spot in full time day care in Canberra for their daughter, which would put his and his wife’s career in jeopardy. He would need to accompany his mother home as she is not an experienced traveller and this would be difficult at short notice and cause financial strain. His mother and his daughter have developed a very close relationship and if his mother left suddenly, there is a high risk of depression and anxiety.
The applicant appeared before this Tribunal by telephone on 7 March 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages. The applicant’s son, Christian Javier Perez Angulo also appeared before the Tribunal by telephone to give evidence.
The applicant confirmed that she had last arrived in Australia on 11 March 2017 as the holder of a FA-600 visa which ceased on 11 March 2018. She is currently the holder of a Bridging visa A granted in association with her FA 600 application. She has remained continuously in Australia since her last arrival on 11 March 2017.
The Tribunal confirmed with the applicant that the delegate of the Department found that the applicant failed to satisfy cl.600.215 of Schedule 2 to the Regulations which requires that there be exceptional circumstances for the grant of the visa sought in his particular circumstances.
The Tribunal invited the applicant to expand on and give evidence in relation to the reasons she believed amounted to exceptional circumstances, for consideration. She said that she would like to travel more, and see more of the country, and would like to meet her son’s new baby, who is on the way, and be able to help with the baby. The family wanted to travel to New Zealand, and because of the visa issues have not been able to do so.
Mr Perez stated that they had been organising to travel at the end of last year, but they had to cancel the trip. This is the reason that she had to stay consecutively for 12 months rather than leave and come back. Their circumstances have changed as there is a new baby, and it is difficult for the family to travel to South America so it would be easier for her to stay now to see the baby and do more travel. They had planned to go to Perth and Adelaide but now need to wait and see what will happen with the visa. If the visa is extended they plan for her to stay in Australia until mid-December and then she would leave the country. His daughter and his mother are very close and it would be difficult for them to separate in such a quick time, in one month, and it would be difficult for them to find child care in such a short time as most places are very full.
The Tribunal explained that while it understood their wish to have the applicant stay longer in Australia, the issue before it at the present time was whether the applicant satisfies cl.600.215, and in particular whether there are exceptional circumstances.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
In the present case, the visa applicant seeks the visa for the purpose of staying with her son to travel further with him and his family, and to care for her grandchildren while the parents are working. Visiting family is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.
The criteria for a subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.600.215, which requires exceptional circumstances for the grant of the visa where the visa would result in the applicant being authorized to stay in Australia as the holder of one or more of the specified visas for a total period of more than 12 consecutive months.
In considering whether exceptional circumstances exist for the grant of the visa, the Tribunal had regard to, but is not bound by, the guidelines set out in the Department's Procedures Advice Manual (PAM3). Relevantly PAM3 states:
If the total stay will exceed 12 consecutive months
Exceptional circumstances must exist for granting an FA-600 visa if the period of authorized stay in Australia as the holder of one or more visitor visas (that is, FA-600, UD-601 ETA, TV-651 eVisitor and all former equivalents) and/or
Working Holiday (TZ-417) visas
Work and Holiday (US-462) visas and/or
bridging visas
For applications made on or after 21 November 2015, bridging visas are included in the list of visas that count towards the '12 consecutive months' referred to in 600.215.
The Tribunal finds that the applicant entered Australia on 11 March 2017 as the holder of a subclass FA-600 visa. It ceased to be in effect on 11 March 2018. The applicant made her current subclass 600 visa application on 10 October 2017 and was granted a bridging visa A in association with that visa application.
The Tribunal finds that the grant of the visa sought would result in the applicant being authorized to stay in Australia as the holder of one or more of the specified visas for a total period of more than 12 consecutive months. In the applicant's particular case, she has held a subclass 600 visa and a bridging visa A, which are visas specified in cl.600.215.
The Tribunal considered the applicant's circumstances as presented to the Department and Tribunal. It accepts that she wishes to spend more time in Australia to be with her grandchild and new baby, to help the family while the parents work, and to travel further.
As discussed with the applicant at hearing, the term ‘exceptional’ is not defined in the legislation and is given its’ ordinary English meaning. The Macquarie Dictionary refers to ‘exceptional’ as ‘forming an exception or unusual instance, unusual, extraordinary’.
The Tribunal is not aware of any specific relevant court authority on the meaning of “exceptional circumstances” in the context of cl.600.215. However, the meaning of exceptional circumstances has been considered in the context of other visa criteria.
In An v Minister for Immigration and Citizenship [2007] FCAFC 97 the majority of the Full Federal Court (per Emmett and Lindgren JJ) held that “exceptional circumstances” is a simple, non-technical phrase and should be understood as meaning unusual or atypical.
The meaning of “exceptional circumstances” in the context of section 137L of the Act was considered by Walters J in Wang v Minister for Immigration and Multicultural and Indigenous Affairs. [2005] FMCA 918. In particular, the court referred with approval to the comments of Kiefel J in Hatcher v Cohn [2004] FCA 1548 in which she stated:
Exceptional circumstances, in general terms, are those circumstances, which are unusual or out of the ordinary. But the term is also one which may have a wide operation. Factors affecting a person and which set them apart from other persons in a comparable situation may amount to exceptional circumstances……The words “exceptional circumstances” may apply to a variety of circumstances, and no definition which limits their application, should be adopted, unless the limitation appears from the relevant statutory provision.
The Tribunal has had regard to the Department’s Procedures Advice Manual (PAM3) in relation to exceptional circumstances, noting that while it provides guidance, it is in no sense binding on the Tribunal. The policy gives examples of exceptional circumstances for authorising a stay longer than 12 consecutive months, including:
- the death, serious illness or serious medical condition of a member of the visa applicant’s close family in Australia, in circumstances where the visa applicant is required to stay in Australia to provide assistance or support
- a change in the applicant’s circumstances (or the circumstances of an Australian resident) that:
The Tribunal is not satisfied that the circumstances described by the applicant and her son amount to exceptional circumstance in the sense of them being out of the ordinary or unusual. There is no evidence before the Tribunal to suggest the applicant falls into the circumstances identified in the Department's policy or similar circumstances. While needing to care for children and see a new baby, and travel further, are all genuine concerns and wishes, they do not amount to circumstances which are out of the ordinary or unusual.
The Tribunal considered the applicant's circumstances individually and cumulatively and is unable to be satisfied that her circumstances can be described as 'exceptional'.
For the above reasons the Tribunal finds that the grant of the visa sought by the applicant in this case would result in the applicant being authorized to stay in Australia as the holder of one or more of the specified visas for a total period of more than 12 consecutive months.
Cl.600.215 (1) requires there to be exceptional circumstances in existence as a condition to the grant of the visa. Having considered all the evidence in this case, the Tribunal is not satisfied that exceptional circumstances exist. As cl.600.215 (2) applies, cl.600.215 (1) must be satisfied.
As the Tribunal finds there are no exceptional circumstances in this case, cl.600.215 (1) is not met, and accordingly cl.600.215 is not met and the applicant is not eligible for the grant of the visa sought.
DECISION
The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.
Jane Marquard
Member

[2018] AATA 862

28 March 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness