Chen (Migration)

[2019] AATA 478

Chen (Migration) [2019] AATA 478 (4 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Xiuling Chen

CASE NUMBER:  1801106

HOME AFFAIRS REFERENCE(S):           BCC2017/4872402

MEMBER:Moira Brophy

DATE:4 March 2019

PLACE OF DECISION:  Sydney

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

Statement made on 04 March 2019 at 10:55am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 – Tourist stream – no exceptional reasons – previous visits to Australia – visa grant would result in staying for more than 12 consecutive months – applied for Contributory Parent (Migrant)(class CA) Contributory Parent (subclass 143) visa – caring for grandchild – not a genuine temporary entrant – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 600.215, PIC 4011

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 2 January 2018 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 20 December 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 and cl.600.215. Cl.600.211 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 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 600.215 because she had not demonstrated exceptional reasons for the grant of the visa.

4. The applicant, Ms Xiuling Chen appeared before the Tribunal on 25 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the daughter of the visa applicant Ms Wen He. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this matter is whether cl.600.215 is met for the grant of a visa.

8. 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.

9. The Tribunal finds that the applicant has entered Australia on numerous occasions over the past 10 years:

   ·Arrived 17 May 2009 and departed on 6 June 2009 as the holder of a subclass TR 676 Tourist Stream visa. It ceased to be in effect on 17 August 2009.

   ·Arrived 6 July 2009 and departed on 19 August 2009 as the holder of a subclass TR 676 Tourist Stream visa. It ceased to be in effect on 23 June 2010.

   ·Arrived 17 July 2012 and departed on 2 August 2012 as the holder of a subclass TR 676 Tourist Stream visa. It ceased to be in effect on 9 July 2013.

   ·Arrived 28 December 2014 and departed on 20 September 2015.The applicant arrived in Australia as the holder of a subclass FA 600 Visitor in the Tourist Stream visa. It ceased to be in effect on 16 March 2015. A further FA 600 visa was granted on 16 March 2015 to cease on 29 September 2015.

   ·Arrived 14 February 2016 and departed on 25 November 2016. The applicant arrived in Australia as the holder of a subclass FA 600 Visitor in the Tourist Stream visa. It ceased to be in effect on 2 May 2016. A further FA 600 visa was granted on 2 May 2016 to cease on 27 January 2017.

   ·The applicant departed Australia on 25 November 2016 and arrived back on 30 November 2016. She has not departed Australia since.

10. 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 FA Visitor Tourist Stream visa and a bridging visa A, which are visas specified in cl.600.215.

11. The Tribunal considered the applicant's circumstances as presented to the Tribunal. The Tribunal accepts that the applicant wishes to spend time caring for her granddaughter and generally assisting her daughter. The Tribunal accepts from the evidence of the applicant that she has applied for a Contributory Parent (Migrant)(class CA) Contributory Parent (subclass 143) visa in November 2016. The Tribunal further accepts from the evidence given by the applicant at the time of hearing that she would prefer to be able to stay in Australia pending the grant of a permanent visa.

12. 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.

13. 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.’

14. The Tribunal has also 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:

    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.

15. The Tribunal carefully considered the circumstances as put forward by the applicant.

16. The applicant told the Tribunal she last entered Australia in November 2016 to assist her daughter in caring for her two children aged ten years and two and a half years. She is currently living with her daughter, her two grandchildren and her husband.

17. At the time of application the applicant stated she wished to remain in Australia to assist her daughter who was a single parent and in full time employment with a company operating in Australia and in China. She said her older granddaughter was at school but she had to care full time for her youngest granddaughter. When asked by the Tribunal if the youngest granddaughter attended child care the applicant said she did not and was not able to attend a centre until she was three years old. It was put to the applicant under section 359AA that that was not consistent with information provided at the time of application that she was seeking to remain in Australia until 23 September 2018 when the youngest grandchild would turn two and would then be eligible for childcare enrolment. It was put to the applicant that she had in fact been granted the additional time she sought because of the time taken to process the application for review. The applicant said her granddaughter could not be enrolled until she was three and there may not be a place available for her as the demand for child care places was high in their area. There was no evidence to support a contention that there were in fact no child care places available for the applicant’s granddaughter. When asked if they had sought enrolment at other centres the applicant said it was only possible to send her granddaughter to one place as that was near their home. Other places were too far away and the applicant said she did not drive. She asked the Tribunal to appreciate her difficulties as her daughter had to work and manage a company. She said if she was not able to care for her granddaughter her daughter would have to give up work and she would then become dependent on Centrelink. She did not want to be in a position where her daughter would have to compromise her employment. She did not think that would be a good outcome for anyone. The applicant told the Tribunal she wanted to help her daughter at her times of difficulty.

18. The daughter of the applicant told the Tribunal that she wanted to be able to make a contribution to Australia but she was only able to do that if her mother was able to be here in Australia to care for her daughters. The alternative to her making a contribution was that she would be a drain because she would be dependent on social security.

19. Whilst the Tribunal was mindful of the applicant’s wish to care for her daughter and grandchildren the Tribunal was also mindful that her visa had previously been extended for this purpose and that there was no real change in the situation since that last extension had been granted. The Tribunal was not satisfied the circumstances as relied on by the applicant were exceptional circumstances for the grant of the visa.

20. Accordingly the Tribunal finds the requirements of cl.600.215 are not met and the decision under review should be affirmed.

21. In assessing whether the applicant was able to meet the requirements of cl.600.215 the Tribunal was concerned the recent travel patterns of the applicant were not indicative of a person who genuinely intended to be in Australia for a temporary visit. The Tribunal was concerned that this was really an application to obtain a migration outcome that allowed another member of the family to be in Australia on a permanent basis. The Tribunal has taken into account the applicant's personal profile and the circumstances of her family but given the matters discussed above the Tribunal has difficulty accepting that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

22. In addition the Tribunal was mindful the applicant was subject to the risk factor in PIC 4011 as the applicant falls within 4011(2)(a) in that during the five years immediately preceding the application the applicant has applied for a visa for the purpose of permanent residence in Australia.

    DECISION

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

    Moira Brophy
    Member