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

1. 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).

2. The visa applicant applied for the visa on 28 February 2017.

3. 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).

5. 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.

6. 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.

7. 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.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. The applicant is 31 years old single male. He was born in Shokder, Albania.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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. 

16. 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?

17. 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.

18. The Tribunal notes that where PAM3 is not consistent with, or does not accurately reflect, the regulations, the policy is unlawful and the regulation must prevail.[2] 

    [2] See, e.g., Alimi v MIAC [2007] FMCA 1520 (Riley FM, 16 October 2007), Total Eye Care Australia Pty Ltd v MIAC [2007] FMCA 281 (McInnis FM, 8 March 2007), Feng v MIAC [2011] FMCA 576 (Barnes FM, 27 July 2011) at [70] – [72]..

19. The term ‘exceptional circumstances’ has been considered by the Courts in relation to other visa categories. 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.

20. 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 IndigenousAffairs. [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.

21. At the time the applicant lodged the visa application he declared that he wished to stay in Australia from 28 February 2017 to 30 May 2017. In completing the online application form the applicant stated that his reasons for applying for the extended stay were “Right now, I stopped working and I am looking forward to spent (sic) the next 3 months on holiday around Australia and visit places such as Darwin, Gold Coast, Cairns and Perth.”

22. As detailed above the applicant’s agent advised the Tribunal that the applicant did not wish to attend the hearing. The agent advised that the applicant would like to leave Australia voluntarily at the end of October 2017 and provided a copy of his flight reservations departing Australia on 30 October 2017. No further submissions or evidence was provided to the Tribunal explaining why the applicant wished to remain in Australia until 30 October 2017.

23. 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

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

    Christopher Smolicz
    Member