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

1. 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).

2. 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.

3. 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.

4. 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.

5. The applicant appeared via telephone on 26 August 2019 to give evidence and present arguments.

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

   BACKGROUND

7. 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.

8. 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”.

9. 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

10. 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

11. The issue in this matter is whether cl.600.215 is met for the grant of a visa.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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.’

17. The Tribunal has also had regard to the Department's Procedures Advice Manual (PAM3) in relation to exceptional circumstances, noting that while it provides guidance, it is in no sense binding on the Tribunal. The policy gives examples of exceptional circumstances for authorising a stay longer than 12 consecutive months, including:

    ·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 carefully considered the circumstances as put forward by the applicant.

19. At the time of application the applicant stated she wished to remain in Australia for a further period to sort out the matters arising from the fraudulent use of her credit card. At the time of hearing the applicant said she wished to attend the wedding of a friend and to do more travelling. She said she had lost the opportunity to travel in the previous 12 months because she had been waiting for the Tribunal to determine her application. She said she had been disadvantaged by the length of time taken to process the matter. She wanted the opportunity to continue her travels in Australia. She said the matters relating to the fraudulent use of her credit card had all been sorted out. She stated her travels would be self-funded from the monies she had saved while working.

20. Whilst the Tribunal was mindful of the applicant’s wish to remain in Australia to travel and spend additional time in the country the Tribunal was not satisfied the circumstances as relied on by the applicant were exceptional circumstances for the grant of the visa.

21. Accordingly the Tribunal finds the requirements of cl.600.215 are not met and the decision under review should be affirmed.

    DECISION

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

    Moira Brophy
    Member