Devi (Migration) - [2021] AATA 4022

Devi (Migration) [2021] AATA 4022 (29 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Seema Devi
CASE NUMBER:  1909119
HOME AFFAIRS REFERENCE(S):          BCC2019/1686392
MEMBER:Stephen Conwell
DATE:29 September 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 29 September 2021 at 11:51am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Tourist stream – parties plan to apply for a Partner visa – applicant has already been granted four consecutive Visitor visas whilst onshore – not satisfied that visa applicant genuinely intends to stay temporarily in Australia – applicant had stayed in Australia for a total period of more than 12 consecutive months – exceptional circumstances don’t exist –decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 600.215

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 April 2019 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant (applicant) applied for the visa on 4 April 2019. 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.
The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl.600.215, which requires there to be exceptional circumstances for granting the visa where granting the visa would result in the applicant being authorised to stay in Australia as the holder of certain visas for a total period of more than 12 consecutive months.
The delegate refused to grant the visa on the basis that the applicant did not meet cl.600.215 because the circumstances given by the applicant did not amount to exceptional circumstances for granting the visa.
The applicant provided a copy of the delegate’s decision to the Tribunal for the purposes of the review.
The hearing was held during the coronavirus (COVID-19) pandemic. Having regard to the nature of the review and the objectives of the Tribunal to provide a mechanism of review that is just, fair, economical and quick, the Tribunal determined that it was appropriate that this review be conducted by way of telephone hearing. The Tribunal exercised its discretion to hold the hearing by telephone. The parties raised no objections as to conducting the hearing by telephone.
The parties participated in the hearing by telephone on 28 September 2021 to give evidence and present arguments. The Tribunal received oral evidence from the sponsor and from the applicant who are both onshore. The Tribunal hearing was conducted with the assistance of an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Devi (Migration)

Details

AGLC: Devi (Migration) [2021] AATA 4022
Case: [2021] AATA 4022
Decision Date: 29 September 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Visitor (Class FA) visa, subclass 600 (Tourist stream), made by the applicant who had been onshore in Australia since 28 July 2017. The applicant had been granted four consecutive Visitor visas during this period and sought a further visa that would extend her stay beyond 12 consecutive months. The delegate had refused the visa, and the applicant sought review of that decision.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 600.215 of the Migration Regulations 1994. Specifically, the Tribunal had to determine if there were "exceptional circumstances" for the grant of the visa, as required by subclause 600.215(1) when subclause 600.215(2) applied, which it did in this case due to the applicant's intention to remain in Australia for more than 12 consecutive months. The applicant did not dispute that the grant of the visa would result in her being authorised to stay in Australia for more than 12 consecutive months.

The Tribunal reasoned that the term "exceptional circumstances" should be interpreted according to its ordinary English meaning, signifying something unusual or extraordinary. While not previously considered in the context of clause 600.215, the Tribunal referred to judicial interpretations of "exceptional circumstances" in other visa contexts, which generally understood the term to mean unusual or atypical circumstances that set a person apart from others in a comparable situation. After considering the applicant's claims individually and cumulatively, the Tribunal was not satisfied that exceptional circumstances existed. Consequently, the applicant failed to meet the requirements of clause 600.215.

The Tribunal affirmed the delegate's decision not to grant the Visitor (Class FA) visa to the applicant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant last arrived in Australia on 28 July 2017, on a FA 600 Visitor visa (Tourist stream) together with the parties’ young son, born in 2015. Whilst onshore the applicant was granted a further four consecutive FA 600 Visitor visas (Tourist stream), with the last one expiring on 12 April 2019. The applicant has remained continuously onshore since her last arrival on 28 July 2017. CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether cl.600.215 is met, which requires the Tribunal to be satisfied that there are exceptional circumstances for the grant of the visa where that visa would result in the applicant being authorised to stay in Australia as the holder of certain visas for a total period of more than 12 consecutive months. The Tribunal notes from the delegate’s decision that the applicant last arrived in Australia on 28 July 2017 as the holder of a Visitor visa and remained continuously onshore by being granted four consecutive Visitor visas. Before expiry of her last Visitor visa, she lodged the present visa application on 4 April 2019, requesting a 12 month stay until 3 April 2020. The grant of the visa would therefore result in the applicant being authorised to stay in Australia for more than 12 consecutive months. This was not disputed by the applicant. The Tribunal finds that cl.600.215(2) applies, and therefore cl.600.215(1) must be satisfied. Clause 600.215(1) provides that, if cl.600.215(2) applies, exceptional circumstances must exist for the grant of the visa. 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”. Whilst there has been no judicial consideration of the meaning of “exceptional circumstances” in the context of cl.600.215, it has been judicially considered in the context of other visa classes. In An v Minister for Immigration and Citizenship [2007] FCAFC 97, relating to an Employer Nomination (Residence) visa, the majority of the Full Federal Court held that “exceptional circumstances” is a simple, non-technical phrase and should be understood as meaning ‘unusual’ or ‘atypical’. It has also been considered in the context of s.137L of the Act in Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 918, where the Magistrate referred with approval to the following comments of Kiefel J in Hatcher v Cohn [2004] FCA 1548: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 their application appears from the relevant statutory provision.

Decision

Reasons for decision

Accordingly, based on the evidence before it and after having considered the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that there are exceptional circumstances for the grant of the visa. The applicant does not meet the requirements of cl.600.215.DECISION The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.Stephen ConwellMember

Ratio Decidendi

Legal Principle Established

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