Burns (Migration)

[2018] AATA 5262

Burns (Migration) [2018] AATA 5262 (15 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Christine BURNS

CASE NUMBER:  1729524

DIBP REFERENCE(S):  BCC2017/4166471

MEMBER:Nathan Goetz

DATE:15 November 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 15 November 2018 at 12:16pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – stay in Australia would exceed 12 consecutive months – exceptional circumstances – applicant obtained a rescue dog – road trip around Australia – family ties to the United States – decision under review affirmed  

LEGISLATION

Migration Act 1958, ss 65, 137L
Migration Regulations 1994, 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 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant is Christine Burns who is a citizen of the United States of America and aged 48 years. On 13 November 2016 the visa applicant arrived in Australia on a Visitor (Class-FA) Subclass 600 visa which had been granted to the visa applicant on 16 June 2016. That visa was to expire on 13 November 2017 and allowed for multiple entries.

3. On 8 November 2017, the visa applicant applied onshore for another Visitor (Class-FA) visa. 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.

4. 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 the visa applicant to satisfy the Minister that there are exceptional circumstances for the grant of the visa which would result in the applicant being authorised to stay in Australia for more than 12 consecutive months.

5. In a decision dated 9 November 2017, 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 there were exceptional circumstances for the grant of the visa.

6. On 24 November 2017, the visa applicant applied to the Tribunal for a review of this refusal decision. She was granted a Bridging A visa to allow her to remain in Australia pending her Tribunal hearing. She provided the Tribunal with a copy of the delegate decision.

7. On 8 November 2018, the case was constituted to this Member. The applicant consented to waive the notification period for a hearing and appeared by telephone on 14 November 2018 to give evidence in support of her visa application. The visa applicant confirmed to the Tribunal at the hearing that she was happy to proceed with the review that day.

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 the present case is whether cl.600.215 is met for the grant of the visa.

10. Clause 600.215 provides that if the grant of the visa would result in authorising a stay of more than 12 consecutive months as the holder of a visitor, working holiday, work and holiday visa or, for applications made from 21 November 2015, a bridging visa, there must be exceptional circumstances for the grant of the visa. This criterion is only engaged where visas of the specified kinds are held consecutively, and not where there is an intervening visa of a different kind, such as a work visa.

11. For an extension of a visitor visa which would result in the applicant residing in Australia for more than 12 months consecutively, the Tribunal must be satisfied that there are “exceptional circumstances” that exist for the grant of the visa. The term “exceptional circumstances” is not defined in the Act. With reference to the Macquarie Dictionary, “exceptional” is defined to mean “forming an exception or unusual instance; unusual; extraordinary”.

12. 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.

13. 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 the word “exceptional circumstances” is a simple, non-technical word and should be understood as meaning unusual or atypical.

14. 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.

15. The Tribunal has considered the relevant Departmental policy  noting that it is not bound by any such policy and it retains discretion to decide which factors should be taken into account and how those factors should be balanced in any particular case. The relevant policy guidance is as follows;

    If total stay will exceed 12 months

    Exceptional circumstances must exist for granting an FA-600 visa if the period of authorised stay in Australia would exceed 12 consecutive months for the holder of one or more of the following visas (600.215 refers):

    ·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. (Prior to the inclusion of bridging visas, a new 12 month period began when an applicant “moved” to a bridging visa while awaiting a visa decision, therefore not requiring exceptional circumstances to exist for their extended stay in Australia.)

    Under policy, exceptional circumstances may include:

    ·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

16. The visa applicant stated in her visa application that she wanted an extension of her time in Australia for 12 months from the date of expiration of her first visa until 1 November 2018. She wrote that the reason for the extension was because she had ‘purchased a van and adopted a rescue dog and would very much like to see more of the country’. She retired from the United States Air Force in 2012 where she had spent 23 years and wrote that her stay in Australia will be self-funded from her $4,500 monthly pension and funds from her United States savings account.

17. In a written statement to the Tribunal which was submitted with her review form in November 2017, the visa applicant stated that she wanted to extend her stay in Australia until June 2018. She wrote that this date would have been ‘her final departure date’ had she temporarily left Australia and returned in June 2017.In her application, she wrote that she had not properly allocated time to travel as extensively as she had intended, and that she was writing a series of children’s books on her travels. She wrote that she is doing her part as a tourist by contributing to the economy by spending money, and that she has invested in numerous improvements to convert her van into a camper van. She confirmed in the letter that she was not working or participating in study or training, and that she had every intention of returning to the United States in June 2018 because she has her two grown daughters and her father who remain in the United States. She noted that her father is nearing the stage of his life where closer proximity to family is beneficial.

    REASONS AND FINDINGS

18. The visa applicant did not dispute her migration history and agreed that she has remained in Australia since her arrival on 13 November 2016. She has therefore been in Australia for over 2 years.

19. The visa applicant told the Tribunal that when she first arrived in Australia she stayed with her sister, her sister’s husband and their children in Canberra. Her sister’s husband was employed by the United States military and he was posted to Australia. She stayed with them for longer than expected and consequently did not see as much of Australia as she wanted to during her initial planned stay. In April or May of 2017, she purchased a van to allow her to travel around Australia. When he sister’s family moved to Belgium in July 2017 so her sister’s husband could take up a new military posting, she started her road trip around Australia. So far she has travelled up to Queensland, gone through the Northern Territory and currently finds herself in Western Australia. She has stayed in a variety of caravan parks and reserves and noted that, despite her age, she has enjoyed being part of the ‘grey nomad movement’ and she has made some friends on the road who are also travelling around Australia. She gave evidence to the Tribunal on telephone from Geraldton in Western Australia and told the Tribunal that the next planned phase of her journey was to South Australia. She adopted Callie, a rescue dog in January 2017 and her dog is accompanying her on her journey. Her plan was to complete her journey and bring her dog with her to the United States, but should the dog not be able to go to the United States, she would seek to have her dog transported to Belgium to be with her sister and her family. She has been meeting her living expenses from her United States air force pension of roughly $4500 per month.

20. The Tribunal asked the visa applicant why she was still in Australia as at November 2018, given that she wrote in her application that she planned to return to the United States in June 2018. She told the Tribunal that she wanted to stay longer because she was enjoying her time here and because her review application to the Tribunal was still outstanding as at June 2018. She thought it would be wasteful for her to leave when she was able to remain here pending her review application. When asked about her current plans for departure, the visa applicant said that she would stay forever if she was allowed to do so (the Tribunal accepts that this was said to demonstrate how much she actually enjoyed her time here and that it did not suggest that the visa applicant was anything but a temporary entrant), but that she would like to stay until at least February 2018 after the holiday season.

21. She told the Tribunal that she plans to donate her van to a local Returned Services League club at the end of her trip for use by other veterans as she did not think she would be able to sell it. She also told the Tribunal that her father’s mother in the United States (her step-grandmother with whom he lived), had health problems and this also acted as an incentive for her to return home. The Tribunal noted that the visa applicant could have departed Australia, gone to a neighbouring country for a short period of time, and then returned to Australia and applied for the Visitor visa, which would have avoided her being required to demonstrate exceptional circumstances. The visa applicant told the Tribunal that she did consider that, but when she spoke to the department they advised her that she could apply for the further visa and she was not aware that she would need to demonstrate exceptional circumstances for it to be granted, but conceded that she may have been told about the hurdle but only ‘heard what she wanted to hear.’ Had she realised the hurdle of needing to demonstrate exceptional circumstances, she told the Tribunal that she would have gone offshore, returned and applied then.

22. The visa applicant appeared genuine and credible to the Tribunal. In the Tribunal’s view, it is clear that the visa applicant wanted to extend her time in Australia because she was enjoying her trip so much. She applied for a review of the refusal decision which has had the desired effect of allowing her to remain in Australia for an additional 12 months on a Bridging visa pending the final determination of her review application (which, as the visa applicant noted herself, was fortunate for her). The visa applicant told the Tribunal that she apologised for not applying for the Visitor visa the ‘right way’ (which the Tribunal understands to mean going offshore, returning and then applying for the Visitor visa), but as the Tribunal noted, she was lawfully entitled to remain here and apply for a new visa, but this placed her in the difficult category of having to demonstrate that exceptional circumstances exist to warrant the grant of the new visa.

23. The visa applicant told the Tribunal that her exceptional circumstances were the fact that she has her dog, but there was nothing else she could think of. She told the Tribunal that if order for her dog to be taken out of the country, she would need to organise vaccinations and paperwork. She has already made enquiries with a transportation company and was advised that they would need 45 days’ notice before her dog could be shipped. The transportation company would only do so if all vaccinations and paperwork is completed before that time. She told the Tribunal that she will be speaking to a veterinarian in South Australia to start the process so her dog can go to the United States with her.

24. As the Tribunal noted to the visa applicant, exceptional circumstances mean atypical, out of the ordinary and usual. The Tribunal has considered that the visa applicant has acquired property in Australia of both a van and a dog, and that she wanted to extend her stay because she ended up staying with family in Canberra longer than she expected to which resulted in her seeing less of the country during her 12 month visa than she wanted to. However, there is nothing usual about these circumstances as they are the voluntary actions of the visa applicant. She has not found herself in circumstances beyond her control, nor is she required to remain in Australia to provide assistance and support to close family in Australia. The Tribunal notes that the visa applicant told the Tribunal that she understood that if the delegate decision was affirmed by the Tribunal, she would have 35 days in order to make her arrangements to leave Australia, and that she said she would do so.

25. Having considered all the evidence, the Tribunal is not satisfied that the circumstances are atypical, out of the ordinary and unusual. The Tribunal is therefore not satisfied that these are exceptional circumstances and is not satisfied that the requirement of cl.600.215 are met.

    DECISION

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

    Nathan Goetz
    Member