Gjoni (Migration) - [2017] AATA 1489

Gjoni (Migration) [2017] AATA 1489 (22 August 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Eduard Gjoni
CASE NUMBER:  1710037
DIBP REFERENCE(S):  BCC2017/802569 CLF2017/35804
MEMBER:Christopher Smolicz
DATE:22 August 2017
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.
Statement made on 22 August 2017 at 3:39pm

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 – Exceptional circumstances for a stay over 12 consecutive months – Previous Working Holiday visa holder – Request to facilitate extended holiday
LEGISLATION
Migration Act 1958, ss 65, 137L
Migration Regulation 1994, Schedule 2 cl 600.215
CASES
Alimi v MIAC [2007] FMCA 1520
Total Eye Care Australia Pty Ltd v MIAC [2007] FMCA 281
Feng v MIAC [2011] FMCA 576
An v Minister for Immigration and Citizenship [2007] FCAFC 97
Wang v Minister for Immigration and Multicultural and IndigenousAffairs [2005] FMCA 918
Hatcher v Cohn [2004] FCA 1548
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 Immigration on 28 April 2017 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 28 February 2017.
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.
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 600.215 which require that where the grant of the visa sought would result in the applicant being authorised to stay in Australia for more than 12 consecutive months on certain temporary visas that exceptional circumstance exist for the grant of the visa.
The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.215 because there was no evidence of exceptional circumstances existing for the grant of the visa.
On 21 July 2017 the Tribunal wrote to the review applicant advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 1 August 2017. On 28 July 2017 the applicant’s migration agent advised the Tribunal that he did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

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 Gjoni (Migration)

Details

AGLC: Gjoni (Migration) [2017] AATA 1489
Case: [2017] AATA 1489
Decision Date: 22 August 2017

CaseChat Overview and Summary

This matter concerned an application for a Visitor (Class FA) visa, subclass 600, brought before the Administrative Appeals Tribunal. The applicant, a 31-year-old Italian passport holder, sought to remain in Australia for three months. The core of the dispute revolved around whether the applicant qualified for an extended stay under the relevant migration regulations.

The primary legal issue before the Tribunal was to determine whether "exceptional circumstances" existed for the grant of the visa, as required by clause 600.215 of the Migration Regulations. This clause mandates that such circumstances must be present if the grant of the visa would result in the applicant being authorised to stay in Australia for more than 12 consecutive months as the holder of a visitor visa, a subclass 417 (Working Holiday) visa, a subclass 462 visa, or a bridging visa. The Tribunal had to ascertain if the applicant's situation met this threshold, considering his previous visa history and stated intentions.

The Tribunal reasoned that the applicant had held a subclass 417 visa for 364 consecutive days, followed by a bridging visa, thus exceeding the 12-month consecutive holding period stipulated in clause 600.215. Consequently, the requirement for exceptional circumstances was engaged. The Tribunal referred to the Department's Procedures Advice Manual (PAM3) for examples of exceptional circumstances, such as serious illness or death of a close family member in Australia, or unforeseen changes in circumstances causing significant hardship. However, the applicant provided no evidence or explanation to demonstrate any such exceptional circumstances. The Tribunal found no evidence of circumstances that were out of the ordinary, uncommon, or unusual, and specifically rejected the applicant's stated reason of an extended holiday as constituting exceptional circumstances.

Accordingly, the Tribunal affirmed the 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

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE 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,[1] 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.[1] Migration Legislation Amendment (2015 Measures No.3) Regulation 2015 (SLI 2015, No.184) substituted cl.600.215 for visa applications made from 21 November 2015. The applicant is 31 years old single male. He was born in Shokder, Albania. He has travelled to Australia on a number of occasions. On each occasion he travelled to Australia as the holder of an Italian passport. The passport remains valid until July 2025. On 28 February 2017 he applied for the subclass 600 (Tourist) visa which is subject of the current application. The applicant indicated that he wished to stay in Australia for three months from 28 February 2017 to 30 May 2017. The Tribunal has had regard to the Department’s movement records and finds that on 13 January 2016 the applicant was granted a subclass 417 (Working Holiday) visa which was valid to 1 March 2017. He arrived in Australia on 1 March 2016. He briefly departed Australia on 15 January 2017 returning on 28 February 2017. The Tribunal finds that the applicant therefore has been the holder of the subclass 417 visa for 364 consecutive days (1 March 2016 to 27 February 2017). On 28 February 2017 he was subsequently granted a bridging visa by Department which he continues to hold at time of this decision. He has therefore held the 417 visa followed by the bridging visa for over 12 consecutive months. Based on these findings, the Tribunal finds that the grant of the visa which the applicant seeks would result in the applicant being authorised to stay in Australia as the holder of one or more of the visas listed in cl.600.215(2), that is, one or more visitor visas, a Subclass 417 visa, a Subclass 462 visa, or a bridging visa for more than 12 consecutive months. Therefore, by the operation of cl.600.215(1), the visa which the applicant seeks can only be granted if ‘exceptional circumstances exist for the grant of the visa’.Do exceptional circumstances exist for the grant of the visa? PAM3, which is the Department’s Procedures Advice Manual containing Government policy, gives the following examples of exceptional circumstances for authoring a stay longer than 12 consecutive months:·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.

Decision

Reasons for decision

The applicant has not provided the Tribunal with any further claim, explanation, or evidence to support a proposition that there are exceptional circumstances in this case. An inspection of the Department’s file by the Tribunal reveals no evidence of any circumstance operating, or present, or likely to exist in the reasonably foreseeable future, in the applicant’s case and which could be described as ‘exceptional’ or out of the ordinary, uncommon or unusual. The Tribunal finds no evidence of the sorts of circumstances suggested by the Department’s policy guidance, or of any other circumstance. The Tribunal is not bound by the Department’s policy and the policy is not exhaustive of circumstances that may be ‘exceptional’. Having regard to all of the evidence before it, the Tribunal does not accept the applicant’s reason for the extended stay, that is a holiday around Australia is an exceptional circumstance.DECISION The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.Christopher SmoliczMember

Ratio Decidendi

Legal Principle Established

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