Ho (Migration) - [2021] AATA 2852

Ho (Migration) [2021] AATA 2852 (2 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Seng Hei Ho
CASE NUMBER:  1920635
DIBP REFERENCE(S):  BCC2019/3243815
MEMBER:Nicole Burns
DATE:2 August 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:
·cl 600.215 of Schedule 2 to the Regulations.

Statement made on 02 August 2021 at 3:23pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – stay as holder of certain visas for total of more than 12 consecutive months – exceptional circumstances – recently widowed elderly applicant with multiple chronic and deteriorating medical conditions – vulnerability to COVID-19 and no family in home country – financial and emotional support from sponsor son and wife – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.215
CASES
An v MIAC [2007] FCAFC 97
Hatcher v Cohn [2004] FCA 1548
Wang v MIMIA [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 19 July 2019 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 27 June 2019. 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 there to be exceptional circumstances for granting the visa where granting the visa would result in the applicant being authorised to stay in Australia as the holder of certain visas for a total period of more than 12 consecutive months.
The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.215 because the circumstances given by the applicant did not amount to exceptional circumstances for granting the visa.
Given changes in the applicant’s circumstances and based on written submissions and supporting documents provided by his son (also acting as his representative) on review, the Tribunal has been able to determine the matter in the applicant’s favour. A hearing was therefore unnecessary.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether cl.600.215 is met, which requires the Tribunal to be satisfied that there are exceptional circumstances for the grant of the visa where that visa would result in the applicant being authorised to stay in Australia as the holder of certain visas for a total period of more than 12 consecutive months.
The Tribunal notes from the decision of the delegate (and Departmental records) that the applicant last arrived in Australia on…

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 Ho (Migration)

Details

AGLC: Ho (Migration) [2021] AATA 2852
Case: [2021] AATA 2852
Decision Date: 2 August 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Visitor (Class FA) visa, Subclass 600, made by an elderly applicant who had been in Australia since October 2019. The applicant sought to remain in Australia for a period exceeding 12 consecutive months, which engaged a specific provision requiring the Tribunal to be satisfied that exceptional circumstances existed for the grant of the visa. The applicant's circumstances included being recently widowed, having multiple chronic and deteriorating medical conditions, and being vulnerable to COVID-19 with no family support in her home country. She relied on the financial and emotional support of her son and his wife, who were Australian citizens.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 600.215 of the Migration Regulations 1994. This clause mandates that if a visa grant would result in the applicant holding certain visas for more than 12 consecutive months, then exceptional circumstances must exist for the visa to be granted. The Tribunal was required to interpret the meaning of "exceptional circumstances" in this context, noting that it is not a defined term and should be given its ordinary English meaning of "unusual" or "extraordinary." The Tribunal also referred to previous judicial interpretations of "exceptional circumstances" in other visa contexts, which indicated that such circumstances are those that are unusual or out of the ordinary, and can include factors that set a person apart from others in a comparable situation.

The Tribunal reasoned that the applicant's situation presented a confluence of factors that qualified as exceptional. These included her advanced age, recent widowhood, significant and worsening health issues, vulnerability to a global pandemic, and lack of support network in her home country, contrasted with the strong familial support available in Australia. The Tribunal considered these factors in light of the Department's Procedures Advice Manual, which provides examples of exceptional circumstances, such as serious illness of a family member in Australia requiring the applicant's presence, or unforeseen changes in circumstances causing significant hardship. The Tribunal concluded that the applicant's circumstances were unusual and out of the ordinary, and therefore met the criteria under clause 600.215.

Consequently, the Tribunal remitted the application for a Visitor (Class FA) visa, Subclass 600, for reconsideration. The Tribunal directed that the applicant met the criteria under clause 600.215 of Schedule 2 to the Regulations.

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 matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether cl.600.215 is met, which requires the Tribunal to be satisfied that there are exceptional circumstances for the grant of the visa where that visa would result in the applicant being authorised to stay in Australia as the holder of certain visas for a total period of more than 12 consecutive months. The Tribunal notes from the decision of the delegate (and Departmental records) that the applicant last arrived in Australia on 28 October 2019 as the holder of a visitor visa and remained onshore until the lodgement of the present visa application on 27 June 2019. The grant of the visa would therefore result in the applicant being authorised to stay in Australia for more than 12 consecutive months. The Tribunal finds that cl.600.215(2) applies, and therefore cl.600.215(1) must be satisfied. Clause 600.215(1) provides that, if cl.600.215(2) applies, exceptional circumstances must exist for the grant of the visa. 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”. This was explained to the applicant at hearing. Whilst there has been no judicial consideration of the meaning of “exceptional circumstances” in the context of cl.600.215, it has been judicially considered in the context of other visa classes. In An v Minister for Immigration and Citizenship [2007] FCAFC 97, relating to an Employer Nomination (Residence) visa, the majority of the Full Federal Court held that “exceptional circumstances” is a simple, non-technical phrase and should be understood as meaning ‘unusual’ or ‘atypical’. It has also been considered in the context of s.137L of the Act in Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 918, where the Magistrate referred with approval to the following comments of Kiefel J in Hatcher v Cohn [2004] FCA 1548: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 their application appears from the relevant statutory provision. The Department’s Procedures Advice Manual (PAM3) gives the following 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.

Decision

Reasons for decision

For these reasons, the Tribunal is satisfied there are exceptional circumstances for the grant of the visa in this case. It finds that the requirement of cl.600.215 are met. DECISION The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:·cl 600.215 of Schedule 2 to the Regulations.Nicole BurnsMember

Ratio Decidendi

Legal Principle Established

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