Hancock (Migration) - [2019] AATA 4747

Hancock (Migration) [2019] AATA 4747 (28 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Sherryl Ann Hancock
CASE NUMBER:  1826155
HOME AFFAIRS REFERENCE(S):           BCC2018/3361354
MEMBER:Moira Brophy
DATE:28 August 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 28 August 2019 at 2:13pm

CATCHWORDS
MIGRATION – Visitor (Class FA) – Subclass 600 (Visitor) – exceptional reasons – remain in Australia for 12 consecutive months – fraudulent activity on card – circumstances not exceptional – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 600.211, 600.215
CASES

An v Minister for Immigration and Citizenship [2007] FCAFC 97
Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 918

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 6 September 2018 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 5 September 2018. 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 (the Regulations). Relevantly to this case, they include cl. 600.215 which 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. They are also required to satisfy cl.600.211 which 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 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.
The applicant appeared via telephone on 26 August 2019 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
BACKGROUND
The applicant is a 62 year old national of the United Kingdom who last arrived in Australia on 25 September 2017 as the holder of an FA-600 Tourist Visa. A subsequent application for a FA600 Visitor – Tourist Stream visa was lodged on 5th September 2018. The applicant has requested a further stay until 5th September 2019, which would result in the applicant being…

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 Hancock (Migration)

Details

AGLC: Hancock (Migration) [2019] AATA 4747
Case: [2019] AATA 4747
Decision Date: 28 August 2019

CaseChat Overview and Summary

This matter concerned an application for review of a decision regarding a Visitor (Class FA) Subclass 600 visa. The applicant, a national of the United Kingdom, sought to remain in Australia for a period exceeding 12 consecutive months. The dispute centred on whether the applicant met the criteria under clause 600.215 of the Migration Regulations 1994, which requires "exceptional circumstances" for such extended stays. The decision was made by the Tribunal.

The primary legal issue before the Tribunal was to determine whether the applicant's circumstances constituted "exceptional circumstances" as required by clause 600.215 of the Migration Regulations 1994. This clause mandates that exceptional circumstances must be present for a visa grant that would result in the applicant being authorised to remain in Australia for a total period of more than 12 consecutive months, considering any previously held specified visas. The Tribunal was required to interpret the meaning of "exceptional circumstances" in this context.

The Tribunal reasoned that the term "exceptional" should be given its ordinary English meaning, signifying something unusual or extraordinary. It noted that while there was no specific case law on clause 600.215, the Full Federal Court in *An v Minister for Immigration and Citizenship* [2007] FCAFC 97 had interpreted "exceptional circumstances" in a similar visa context as meaning unusual or atypical. The applicant's stated reason for the extended stay, relating to fraudulent activity on her credit card and the subsequent delay in receiving replacement cards, was not considered by the Tribunal to be sufficiently unusual or extraordinary to meet the threshold of exceptional circumstances. The Tribunal found that the applicant had held specified visas, including a Tourist visa and a bridging visa A, which would result in a total stay exceeding 12 consecutive months if the current application were granted.

Consequently, the Tribunal concluded that the applicant had not satisfied the requirements of clause 600.215. The decision under review was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In support of the review application the following documents were provided to the Tribunal:· A letter of support for the visa grant written by Irene and Alan Gill· An email from Therese Turton to the review applicant · An email from Eileen Carmichael to the review applicant · A statement by the applicant is support of the visa grant CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this matter is whether cl.600.215 is met for the grant of a visa. 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. The Tribunal finds that the applicant entered Australia on 25 September 2017 as the holder of an FA-600 Tourist Visa. A subsequent application for a FA600 Visitor – Tourist Stream visa was lodged on 5th September 2018. The applicant applied for a Visitor (Class FA) on 8 May 2018. The applicant was granted a bridging visa A in association with that visa application. 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-600 Tourist visa and a bridging visa A, which are visas specified in cl.600.215. 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. 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.’

Decision

Reasons for decision

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.BACKGROUND The applicant is a 62 year old national of the United Kingdom who last arrived in Australia on 25 September 2017 as the holder of an FA-600 Tourist Visa. A subsequent application for a FA600 Visitor – Tourist Stream visa was lodged on 5th September 2018. The applicant has requested a further stay until 5th September 2019, which would result in the applicant being authorised to remain in Australia for a total period exceeding 12 consecutive months. To satisfy the requirements for the grant of a visitor visa the applicant stated that their reasons for applying for the extended stay were “Intended to extend current visa by leaving the country and returning by 8 Aug 2017 my bank detected fraudulent activity on my credit card and had to cancel it and send out a new one which did not arrive so a second one was sent but did not arrive until well after the 8th Aug. Want to carry on travel”. In support of this application the following documents were provided to the Department:· Receipt of a payment made to the Queensland Department of Transport and Motoring · 4 x bank statements from different accounts In support of the review application the following documents were provided to the Tribunal:· A letter of support for the visa grant written by Irene and Alan Gill· An email from Therese Turton to the review applicant · An email from Eileen Carmichael to the review applicant · A statement by the applicant is support of the visa grant CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this matter is whether cl.600.215 is met for the grant of a visa. 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. The Tribunal finds that the applicant entered Australia on 25 September 2017 as the holder of an FA-600 Tourist Visa. A subsequent application for a FA600 Visitor – Tourist Stream visa was lodged on 5th September 2018. The applicant applied for a Visitor (Class FA) on 8 May 2018. The applicant was granted a bridging visa A in association with that visa application. 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-600 Tourist visa and a bridging visa A, which are visas specified in cl.600.215. 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.

Ratio Decidendi

Legal Principle Established

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