Bloodworth (Migration)

[2019] AATA 2925

Bloodworth (Migration) [2019] AATA 2925 (21 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Rebecca Eve Bloodworth

CASE NUMBER:  1729973

HOME AFFAIRS REFERENCE(S):           BCC2017/4154902

MEMBER:Mary Urquhart

DATE:21 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 21 March 2019 at 2:40pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no exceptional circumstances – request to extend stay – will exceed 12 consecutive months – relationship with Australian citizen – 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

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 9 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 7 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.600.215. Clause 600.215(1) requires there to be exceptional circumstances in existence as a condition to the grant of the visa.

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 her last arrival on 1 December 2016.

5. The applicant appeared before the Tribunal on 19 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Luke Davin Potter.

6. The applicant was represented in relation to the review by her registered migration agent.

7. Prior to the hearing the Tribunal received a submission in support of the application (Tribunal  folio 20-27). The applicant’s partner’s Australian Citizen Certificate granted 19 March2019 was submitted at the hearing.

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 20 June 1987. She is a citizen of the United States and holds a passport for that country. She first arrived on a Working Holiday visa on 1 December 2016 which remained in effect until 1 December 2017.

11. The applicant lodged a visitor visa in which she requested a further stay until 1 December 2018.  The grant of this visa would result in the applicant staying in Australia for a total period exceeding 12 consecutive months.

12. At the hearing the Tribunal explained the requirements for a Visitor visa and 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 and what if any exceptional circumstances there are for a grant of the visa.

13. 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'.

14. 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.

15. 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.

16. 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.

17. However, the Tribunal notes that the list prescribed by policy is not exhaustive, and that while the Department's policy provides guidance, it is not binding on the Tribunal.

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

19. In her application the applicant stated her reasons for a further stay are “Tourism and ability to travel to and from the USA as needed for family - see letter for details". The applicant provided a cover letter elaborating on her reason for a further stay. In it she sates her reasons are mainly to spend more time with her partner in Australia. She stated "With my relationship new but going very well, I want to be able to spend as much time as possible with my partner here, in Australia."  The applicant also indicated that she wished to travel back home to care for her sick father and help her mother to “expand her music studio business” when required. She stated that the 600 visa would make planning these trips back and forth much simpler, since she would not need to apply for a new visa each time she made the flight. In this way, she claimed she would be available to her parents, as needed, while also allowing her partner and herself to see where their relationship takes them.

20. Since lodging her application the Tribunal has received further submissions regarding the applicant’s reasons for seeking the visa. It is further submitted that following the grant of citizenship to her de facto partner (a grant made on yesterday’s date) the applicant now seeks to obtain the visa “to continue” her stay in Australia. The applicant hopes that a Visitor visa will provide her and her partner time to consider their options to remain together, as they claim that the stress and uncertainty has limited their capacity to make considered decisions about their future.

21. It was submitted that the applicant’s de facto partner, a New Zealander by birth, required Australian citizenship  in order to  obtain a suitable long stay work visa to return to the United States. As well the applicant gave evidence that the Visitor visa will give her and her partner the option to apply for a Partner visa without the limitations of the Schedule 3 requirements. The Tribunal notes, the applicant’s last substantive visa ceased on 1 December 2017 and she has been on a Bridging visa for over 12 months.

22. The applicant told the Tribunal she came to Australia on a working holiday visa in 2016 to be with Mr. Luke Potter. She said she met him when he was working in the USA and that they commenced dating in March 2016. The applicant claims that after Mr. Potter returned home she lost her job as a Librarian and so decided to come to Australia and to use the working holiday visa to facilitate her stay in Australia whilst Mr. Potter made an application for Australian citizenship. They planned to return to the USA she said. She gave evidence that she does not want to give up her US citizenship but as well is in a committed relationship with Mr. Potter.

23. The Tribunal has carefully considered the applicant's evidence regarding her claimed circumstances. This includes her claimed health issues, for which she has prescribed medication; her claimed unemployment as a Librarian in the USA; her claim that despite family in the USA she has nowhere to stay if she returns home, other than for short periods with friends; and the financial burden she will become on her partner, who is now an Australian citizen, if he has to support a household in Australia and one for her in the USA while she finds work.

24. In relation to her health the applicant provided a copy of a brief letter dated 23 February 2019 signed by Dr.Emilia Greculescu. In the letter Dr Greculescu states that the applicant’s “general health and mental health will suffer severely if she will not have Mr. Potter’s support and loving care. There is no further explanation given as to her opinion. Dr Greculescu does not address temporary separation. The Tribunal has carefully considered this evidence.

25. The applicant also provided a letter from a friend Ms. Sarah Jameson, in the USA, dated “2/20/19” (sic). (See Tribunal folio 20).The Tribunal has considered the contents which refer to the applicant’s need for emotional support from her partner.

26. There is inconsistent evidence regarding the applicant having no place to live in the USA. In her application she refers to her need to return home to assist with her father’s health and her mother’s business; at the hearing she said she is not able to stay with her family if she returns home. She said her mother has “quit her job”; her bankrupt uncle is staying and her father has had a stroke. She said she only had a few friends who would have her for a few days. There is no evidence from her parents and siblings that she is not able to stay with them. There is no independent evidence regarding the applicant’s claim that she is unable to stay anywhere in the USA. The Tribunal formed the view the evidence was exaggerated for the purposes of the application.

27. The Tribunal has considered the applicant’s claims of financial hardship. No independent evidence supporting this claim was provided. The Tribunal is not satisfied that the applicant would need to set up her own household in the USA to be paid for by Mr. Potter if she returned home. Furthermore, the Tribunal notes the applicant’s claimed de facto has steady employment with Visy Paper, has been with them for some 22 years and is a valued member of the company. There is no independent evidence of financial hardship that the applicant claims her partner will suffer.

28. It was claimed that the length of time it has taken to obtain Australian citizenship for Mr. Potter has been extremely lengthy due to the Australian government suspending processing of grants in 2017. This in turn caused a backlog. The evidence is that Mr. Potter applied in August 2017 but that his citizenship grant was only approved in December 2018 and he was only able to make his pledge the day before the hearing (19 March 2019). It was submitted that this amounts to an exceptional circumstance as but for this, Mr. Potter might have a visa for the USA and the applicant and he could return there. It was argued that now that Mr. Potter has his Australian citizenship he has the opportunity for a long term visa in the USA. The Tribunal does not accept that the impact of government policy on the grant of citizenship to the applicant’s claimed de facto partner amounts to exceptional circumstances.

29. The Tribunal notes the applicant’s evidence that she and her partner “want to be given time to figure out what they could do” as they are waiting on other parties, namely job opportunities in her partner’s company in the USA, in order to be able to make decisions. Whilst the applicant’s partner may now apply for a long term visa in the USA there is no firm job offer and as such no evidence that the applicant would remain temporarily if granted a visa.  

30. 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 Working Holiday visa and a bridging visa, which are visas specified in cl.600.215.The visa extension is for a visitor visa, such visas are for a temporary further stay only, and the criteria require exceptional circumstances for renewal.

31. Taking into account the ordinary meaning of the words “exceptional circumstances” and the decisions and PAM3 policy guidance above, and without being bound,  the Tribunal is not satisfied that the applicant's circumstances amount to exceptional circumstance in the sense of being unique, out of the ordinary or unusual. The Tribunal does not consider that the evidence satisfies the meaning of exceptional circumstances.

32. Furthermore, the Tribunal is not satisfied that there is evidence before it suggesting that there has been such a change to the applicant's circumstances (or the circumstances of an Australian resident) that could not have been anticipated and where not granting a visa would cause significant hardship to an Australian resident or citizen.

33. The Tribunal is not satisfied that the applicant's wish to remain in Australia with her  de facto partner whilst considering options and awaiting  job opportunities for him  are sufficient to “form an exception”, or are “extraordinary” or “unusual'.

34. 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.

35. Having considered all the evidence in this case, the Tribunal is not satisfied that exceptional circumstances exist.

36. 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

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

    Mary Urquhart
    Member