Beltran (Migration)

[2019] AATA 1077

Beltran (Migration) [2019] AATA 1077 (8 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rodel Beltran

CASE NUMBER:  1729232

HOME AFFAIRS REFERENCE(S):           BCC2017/4331404

MEMBER:Mary Urquhart

DATE:8 March 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 08 March 2019 at 2:24pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – in Australia for more than 12 consecutive months – exceptional circumstances required – spending time with family – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 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 20 November 2017 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 17 November 2017. 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.

3. 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.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.215 because the delegate was not satisfied that exceptional circumstances existed for the grant of the visa. The delegate noted that the applicant has remained continuously in Australia since his last arrival in December 2016.

5. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because they were not satisfied he met cl.600.215 as the grant of a visitor visa would extend his stay beyond 12 consecutive months.

6. The applicant appeared before the Tribunal on 8 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Jean-Marc Antoine.

7. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether cl.600.215 is met and in particular whether there are exceptional circumstances in relation to the temporary visitor visa sought by the applicant. 

10. The applicant was born on 19 December 1986.  He is a national of the Philippines.

11. The applicant first entered Australia on 18 December 2016 as the holder of a FA600 Tourist visa in effect until 17 December 2017. Prior to his arrival he lived in the Philippines with his mother. He gave evidence he was employed in an Hotel.

12. The applicant has been in Australia since his arrival in December 2016. He has been living with his sister and her family and has been supported by them. He gave evidence that he has not worked in Australia.

13. The applicant in his application to extend his visa states he wishes “to spend more time with my 2 beautiful nieces and my sister and brother in law”. At the hearing the applicant reiterated his wish to spend more time with family in Australia. His brother in law, Mr Antoine, also gave evidence that the family would like the applicant to spend further time with them. No further or other reasons were provided to extend his stay.

14. At the hearing the Tribunal explained the temporary nature of the Tourist visitor visa and whilst acknowledging delay through processing times, the Tribunal explained that it had to consider whether the granting of a further visitor visa would result in the applicant being in Australia for more than 12 consecutive months.

15. Clause 600.215(1) requires there to be exceptional circumstances in existence as a condition to the grant of the visa.

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

17. The applicant has been in Australia since December 2016. He initially came for 12 months. Before his visa expired he applied for the extension the subject of this review.

18. The Tribunal has carefully considered if there are any exceptional circumstances that would provide a reason to grant the extension of the visa over the 12 consecutive months. The Tribunal notes the term 'exceptional' is not defined in the legislation and so is given its' ordinary English meaning. The Macquarie Dictionary refers to 'exceptional' as 'forming an exception or unusual instance, unusual, extraordinary'.

19. 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.

20. 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.

21. 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.

22. 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 authorizing 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.

23. Taking into account the ordinary meaning of the words 'exceptional circumstances' and the decisions and PAM policy guidance above, the Tribunal is not satisfied that the applicant's circumstances amount to exceptional circumstance in the sense of them being out of the ordinary or unusual. Whilst sympathetic to the applicant’s wishes to be with family there is no evidence before the Tribunal to suggest the applicant falls into the circumstances identified in the Department's policy.

24. The Tribunal is not satisfied that the purpose of the extended visa for the applicant to spend more time with his two beautiful nieces, sister and brother in law is exceptional in all the circumstances of this application. Accordingly the Tribunal finds no exceptional circumstances which would be a reason for granting a further visitor visa.

25. 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.

26. 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

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

    Mary Urquhart
    Member