Augerea (Migration)

[2020] AATA 5913

Augerea (Migration) [2020] AATA 5913 (17 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Avia Kwari Augerea

CASE NUMBER:  1821042

HOME AFFAIRS REFERENCE(S):          BCC20183925177

MEMBER:Frances Simmons

DATE:17 November 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 17 November 2020 at 5:40pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Visitor stream – visa applicant wanted to remain permanently in Australia - not the purpose of a visitor visa - exceptional circumstances – adoption order–decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 600.211, 600.215

CASES
An v Minister for Immigration and Citizenship [2007] FCAFC 97
Hatcher v Cohn [2004] FCA 1548
Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 918

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 3 July 2018 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 25 June 2018. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the tourist stream.

2. 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 where the grant of the visa would result in the applicant staying consecutively in Australia for more than 12 months, there must be exceptional circumstances for the grant of the visa.

3. Mr Peter Augerea appeared before the Tribunal on 16 November 2020 to give evidence and present arguments on behalf of the review applicant. The review applicant is an eleven-year-old child and the Tribunal is satisfied, based on the documentation before it, that Mr Peter Augerea is her father. Where a parent or guardian holds him or herself out as acting as the representative for an applicant who is a minor, the Tribunal is entitled under the common law and the Migration Act to treat those actions of the parent or guardian undertaken on behalf of the applicant as the actions of the applicant.[1]

   [1] In SZLSM v MIAC (2009) 176 FCR 539 at [24.

4. The Tribunal exercised its discretion to hold the hearing by telephone. The Tribunal determined it was reasonable to hold a hearing in this manner, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal's objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the review applicant was given a fair opportunity to give evidence and present arguments.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF EVIDENCE AND CLAIMS

   Background

6. The review applicant in this case is a child who was born in Papua New Guinea on 6 April 2011. She is a citizen of PNG and a copy of the biodata page of her PNG passport appears on the Tribunal file. The review applicant was represented before the Tribunal by Mr Peter Augerea. Mr Augerea is an Australian citizen and a copy of the biodata page of his Australian passport and Australian citizenship certificate appear on the Tribunal file.

7. The information before the Tribunal indicates that Miss Augerea was granted a visitor visa in May 2015 and has travelled in and out of Australia on visitor visas on multiple occasions between 2014 and 2017 when she last entered Australia. She last arrived in Australia on 3 July 2017 as the holder of a visitor visa that remained in effect until 3 July 2018. She made her current subclass 600 visa application on 25 June 2018 and was granted a bridging visa A in association with that visa application. The reason for the visa application was ‘adopting of Avia Kwari Augerea still progressing’.

8. Clause 600.215 requires that where the grant of the visa would result in the applicant staying consecutively in Australia for more than 12 months, there must be exceptional circumstances for the grant of the visa. In this case the delegate was not satisfied that exceptional circumstances existed and refused to grant the visa on the basis the visa applicant did not meet cl.600.215.

9. The application for review was accompanied by a letter from Deborah Moore, a senior adoption practitioner, at the Northern Territory Wide Services for Territory Families dated 5 July 2018. Relevantly, this letter states:  

   Mr and Mrs Augerea have applied to be assessed to adopt Miss Avia Kwari Augerea n regards to her best interest and wellbeing under the Adoption of Children Act 1994. It is my understanding that if an adoption order is granted that they will apply for a Child visa (subclass 802)

   Mr Peter and Mrs Avia Augerea are Australian citizens and have requested the Territory Families Adoption Unit provide evidence of their involvement with us regarding their adoption application for this child to the Department of Home Affairs.

   The couple first contacted the adoption unit Oct/Nov 2015 initially about their desire to adopt the child who has been in their care since she was a baby. Mr Augerea is [the] paternal uncle of the child’s biological mother. The Papua New Guinea National Court of Justice granted an Adoption Order dated 1 October 2015 as the child’s birth mother and extended family were unable to care for her.

10. On 29 October 2020 the Tribunal received a copy of a letter from the Acting Senior Director at the Northern Territory Wide Services for Territory Families dated 15 November 2018. This letter, which is addressed to Mr and Mrs Augerea, states that their circumstances have been assessed under the Adoption of Children Act 1994 in regards to a non-citizen child. The letter continues that, in the opinion of Territory families, exceptional circumstances exist which mean the granting of the adoption order for Miss Augerea would be in her best interests. The exceptional circumstances include that Mr and Mrs Augerea have been her parents she was born and have adopted her both legally and traditionally in PNG. The letter notes an adoption order will confer on them the same rights and responsibilities as if they were Miss Augerea’s biological parents.

11. The Tribunal was also provided with a court order made at the Local Court at Darwin on 11 April 2019 by Judge Lim. Relevantly, the Court ordered that Miss Augerea, born on 6 April 2011, be adopted by Peter Augerea and Avia Aihi Augerea. The Tribunal was also provided with a birth certificate for Miss Augerea, dated 21 April 2020, which reflects the adoption order and records that her father is Peter Augerea and her mother is Avia Aihi Augerea.

12. At the hearing on 17 November 2020, Mr Peter Augerea, confirmed that an adoption order had been made by the Local Court in Darwin in 2019. He confirmed the immigration history of his daughter. He explained that obtaining an adoption order from the Local Court in Darwin had taken longer than anticipated. He also indicated that an application for a child visa had not yet been made but it was intended that such an application be made.

13. The Tribunal explained that a subclass 600 visa is a temporary visa and that cl. 600.215 requires that where the grant of the visa would result in the applicant staying consecutively in Australia for more than 12 months, there must be exceptional circumstances for the grant of the visa. The Tribunal explained that while the term exceptional circumstances is not defined in the Act or the Regulations, it is taken to mean circumstances that are out of the ordinary, unusual, or in some way special although not necessarily unique. The Tribunal referred to the Department’s Procedures Advice Manual (PAM3) in relation to exceptional circumstances. While PAM3 provides guidance, it is not 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:
    • could not have been anticipated at the time their visitor visa was granted and
    • is beyond the visa applicant’s control and
    • where not granting a visa would cause significant hardship to an Australian resident or citizen. [2] 

    [2] POLICY – MIGRATION REGULATIONS – OTHER – GenGuideH – Visitor visas – Visa application and related procedures – ‘If total stay will exceed 12 months’ (re-issue date 10/9/16).

14. The Tribunal explained to Mr Augerea the policy guidelines are not an exhaustive statement of what might be considered exceptional circumstances.

15. Mr Augerea gave evidence that adoption proceedings in Australia commenced in 2015 and an adoption order was made in their favour of Mr and Mrs Augerea in 2019. Mr Augerea had considered making a child visa application on behalf of his daughter but decided to wait until this application for review of the decision to refuse to grant her a visitor visa had been determined. He was not aware of any reason that Miss Augerea would be unable to make a child visa. There is no evidence before the Tribunal to suggest that the adoptive parents of the review applicant have been anything other than frank and forthcoming in their dealings with the Department and the Tribunal in respect of the circumstances in which Miss Augerea has applied for a visitor visa, their intention to pursue adoption proceedings in Australia, and then to apply for a child visa.

16. The Tribunal explained that a requirement of the visitor visa is that the visa applicant intend to stay temporarily in Australia for the purpose for which the visa was granted. However, in this case the visa applicant is a child who has remained in Australia while her parents obtained an adoption order from the Local Court in Darwin. The visa applicant has remained in Australia continuously since 2017 and her parents obtained an adoption order in 2019. would appear that the visa applicant has sought to remain in Australia while her parents obtain an adoption order, with the view that she will then be able to apply for a child visa and remain in Australia permanently. Mr Augerea did not dispute that it was their intention that the review applicant remain permanently in Australia.  The Tribunal put to Mr Augerea its concerns that the circumstances of this case did not satisfy the Tribunal that were exceptional circumstances for the grant of the visitor visa.

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. 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.

18. 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

19. 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.

20. The review applicant last arrived in Australia on 3 July 2017 as the holder of a visitor visa that remained in effect until 3 July 2018. The applicant made her current subclass 600 visa application on 25 June 2018 and was granted a bridging visa A in association with that visa application. The further stay was request for up to 12 months with an end date until 25 June 2019. The reason for the visa application was ‘adopting of Avia Kwari Augerea still progressing’.

21. The Tribunal finds that the grant of the visa sought would result in the applicant being authorised 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 case, she has held a subclass 600 visa and a bridging visa A, which are visas specified in cl.600.215.

22. The Tribunal has considered the applicant's circumstances in order to ascertain if they are exceptional. As the total stay by the visa applicant will exceed 12 consecutive months the Tribunal has considered whether there are exceptional circumstances exist for the grant of the visa.

23. 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 specific relevant court authority on the meaning of “exceptional circumstances” in the context of cl.600.215.

24. 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.

25. The meaning of “exceptional circumstances” in the context of s 137L of the Act was considered Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 918 where 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.

26. Kiefel J continued:

    The process of construing words in a statute must always begin with an examination of the context of the provision being construed: Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 381, [69]. As was there pointed out, the object of statutory construction is to construe a provision so that it is consistent with the language and the purpose of the provisions of the statute as a whole. It is necessary to give meaning to each word of a provision (at 382, [71]). And words are to be assumed to be used consistently: Craig, Williamson Proprietary Limited v Barrowcliff [1915] VicLawRp 66; [1915] VLR 450 at 452, unless a contrary intention appears[3]

    [3] Hatcher v Cohn [2004] FCA 1548, [51]

27. The term ‘exceptional circumstances’ in cl.600.215 appears in a statutory context where a period of time is otherwise imposed for the duration of a temporary visa and where cl.600.211 of the regulations relevantly requires that a person genuinely intend to visit Australia temporarily.

28. The Tribunal hearing the applicant gave evidence that application for the visa was made because the visa applicant wanted to remain permanently in Australia. The Tribunal accepts that the applicant wishes to stay in Australia and that her father intends to make an application for a child visa (subclass 802) on her behalf. When asked why such an application had not been made Mr Augerea indicated that he was in the process of reviewing the application forms and had thought he should await the outcome of this review of the visa refusal. It is clear the review applicant’s parents want her to stay in Australia permanently, which is not the purpose of a visitor visa.

29. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to Regulations. Relevantly, the criteria 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. The Tribunal considers that the words ‘exceptional circumstances’ are limited by the statutory context in which they appear, which is within a scheme that provides for visas to be granted for a limited period to individuals who seek to visit Australia on a temporary basis.

30. The Tribunal does not accept the applicant's circumstances constitute exceptional circumstances. The Tribunal notes Mr and Mrs Augerea indicated that they intended to adopt Miss Augerea under Australian law in 2015. The Tribunal does not accept that Miss Augerea needing to remain in Australia while her parents obtain adoption orders and make arrangements for her to live permanently in Australia constitutes ‘exceptional circumstances’ for the purpose of cl.600.215. While the Tribunal acknowledges that the circumstances are beyond the visa applicant’s control, the evidence before the Tribunal indicates that an adoption order has now been made in favour of Mr Augerea and Mrs Augerea. Given that the review applicant may be able to apply for a child visa, the Tribunal does not accept that not granting the visa will cause significant hardship to Mr Augerea or Mrs Augerea.

31. The evidence before the Tribunal indicates that that the parents of the visa applicant intended her to remain in Australia on a permanent basis and that, at the time of this decision, it would appear that there are avenues for her seek to do so. The Tribunal accepts that Mr Augerea intends to make a child visa application on behalf of his daughter. Given there may be options for her to stay onshore, the outcome of this review will not necessarily result in her leaving Australia or being separated from her parents, who are Australian citizens.

32. Cl.600.215 (1) requires there be exceptional circumstances in existence as a condition to the grant of the visa. Having considered the applicant's circumstances, the Tribunal is not satisfied that there are exceptional circumstances for the grant of the visa. As cl.600.215 (2) applies, cl.600.215 (1) must be satisfied.

33. 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

34. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

    F.  Simmons
    Member