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

1. 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).

2. 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.

3. 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.

4. 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.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. By way of context and background, the applicant and his wife[1] came to Australia in October 2019 to visit one their two sons in Australia: the other son is a long-term resident in Canada.  They both applied for further visitor visas onshore, with the applicant stating in his application that he was enjoying spending time with his son in Australia.  However, no other reasons were provided, and the delegate was not satisfied these constituted exceptional circumstances.  The applicant and his wife’s visitor visa applications were refused, and both sought reviews, separately.  

    [1] Ms Ching Han Cheung

13. In a letter[2] from the applicant to the Tribunal provided shortly after he lodged the review application the applicant said he and his wife wanted to stay a ‘little longer’ in Australia due to the recent unsettled atmosphere in Hong Kong, where they reside.  Additionally, he advised that his wife had fallen after being approached by a German Shepard in a park, fractured her pelvis, undertaken surgery and required further time to recover.  A letter from her orthopaedic surgeon, Box Hill Hospital was provided in which the surgeon confirmed the applicant’s wife was an inpatient under their orthopaedics team and required a period of time before being discharged for rehabilitation. 

    [2] Dated 28 July 2019

14. Subsequent to this correspondence from the applicant, his son in a letter to the Tribunal advised that his mother (the applicant’s wife) died (in November 2020).  He asked that his father – who is 91 years of age, frail and infirm, and whose mental and physical health has deteriorated since his wife died – be granted the visa to stay in Australia for several reasons, including because he is too weak, old and vulnerable to COVID-19 if he has to travel back to Hong Kong where he has no family and would have to reside alone.  The applicant’s son explained that his parents applied for a Contributory Parent visa in July 2017 (an acknowledgement and receipt from the Department was attached) and based on the most recent advice on the relevant website that applications queued as at May 2016 are being released from final processing, envisages his father’s application will be released within a year, and no more than two years. 

15. The applicant’s son stated further that his father will be no financial burden to Australia given he and his wife have and will continue to, provide him with financial and emotional support.

16. Several supporting documents were provided to the Tribunal including:

    ·A letter from Dr Liu, GP dated 22 July 2021.  In it the doctor states that the applicant is suffering multiple chronic medical conditions, is considered vulnerable to COVID-19 and should avoid overseas travel and public places.  Additionally, he is anxious and depressed since his wife died last year and has no other family in Hong Kong.

    • A letter from Reverend Bin Chen, New life Evangelical Church dated 28 July 2021.  In it the reverend said he has known the applicant’s son who attends their church for 10 years.  The Reverend states that he provided pastoral care to his family after his mother died in November 2020 and conducted her funeral service. 

17. In the applicant’s late wife’s case before the Tribunal[3] (differently constituted) their son had advised the Tribunal of his mother’s death and provided a copy of her death certificate showing she died on 14 November 2020. 

    [3] AAT No. 1921068

18. The Tribunal accepts on the basis of this evidence that the applicant is a 91-year-old recently widowed man from Hong Kong who experiences several mental and physical health issues, exacerbated by the loss of his wife in circumstances that could not necessarily have been anticipated when their visitor visa was granted initially.  It accepts whilst the applicant is being supported by his son and daughter in law in Australia, his presence is likely a source of comfort and emotional support to his son, an Australian citizen, after the loss of his mother less than a year ago.  The applicant’s age and health issues also make him particularly vulnerable to suffering adverse consequences if he contracts COVID-19 during this time of a global pandemic, either during his travel home or whilst there, where he would have to reside alone. 

19. 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

20. 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 Burns
    Member