Diaz (Migration)

[2023] AATA 2185

Diaz (Migration) [2023] AATA 2185 (20 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Juan Diaz

CASE NUMBER:  2212221

HOME AFFAIRS REFERENCE(S):          BCC2022/53576

MEMBER:Angela Cranston

DATE:20 June 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision under review.

Statement made on 20 June 2023 at 10.53am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – applicant had stayed in Australia for a total period of more than 12 consecutive months – mother-in-law has passed away – Tribunal is not satisfied that exceptional circumstances exist – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, 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 Home Affairs on 9 August 2022 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2.    The visa applicant applied for the visa on 25 February 2022 on the basis that he was concerned with the health of his wife’s mother who had advanced dementia and was in a care home on the sunshine coast. 

3.    The delegate refused to grant the visa and the applicant applied for review.

4.    The applicant appeared before the Tribunal on 19 June 2023 to give evidence and present arguments. The applicant stated that his mother-in-law had passed away and her anniversary was this month. He stated there were no other circumstances that the applicant wanted the Tribunal to consider as exceptional.

CONSIDERATION OF CLAIMS AND EVIDENCE

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

CONSIDERATION OF CLAIMS AND EVIDENCE

6.    The issue in the present case is whether the applicant meets 600.215.

1. The Tribunal finds that the applicant last entered Australia on 8 March 2020 as the holder of a subclass 600 visa that ceased on 8 June 2020. On 31 July 2020, he was granted a further subclass 600 visitor visa with effect until 5 March 2021. Then on 5 March 2021 he was granted a further visitor visa with effect until 1 March 2022. On 25 February 2022 he made his current subclass 600 visa application and was granted a bridging visa A.

8.    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, he has held subclass 600 visas and a bridging visa A, which are visas specified in cl.600.215.

9.    The Tribunal has considered the applicant's circumstances to assess if they are exceptional. 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’. (see 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.

1. The applicant initially stated that he wanted to remain in Australia because of his wife’s mother but advised the Tribunal that his mother-in-law has now passed away and he has not provided any other submissions in relation to any other exceptional circumstances.

2. For completeness, the Tribunal also finds that the circumstances surrounding COVID 19 are no longer exceptional in that COVID 19 no longer prevents the applicant from departing Australia given the availability of international flights and reopening of international borders.

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

DECISION

1. The Tribunal affirms the decision under review.

Angela Cranston
Member