HUANG (Migration) - [2019] AATA 6577

HUANG (Migration) [2019] AATA 6577 (15 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Hong Huang
CASE NUMBER:  1819908
HOME AFFAIRS REFERENCE(S):          BCC2018/3809535
MEMBER:Moira Brophy
DATE:15 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 15 August 2019 at 3:59pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – exceptional circumstances required for grant of visa resulting in stay of more than 12 consecutive months – care of permanent resident daughter and sick granddaughter – no appearance by applicant at hearing – no medical evidence regarding granddaughter – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.215
CASES
An v Minister for Immigration and Citizenship [2007] FCAFC 97
Hatcher v Cohn [2004] FCA 1548
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 27 June 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 18 June 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 requires the visa applicant to satisfy the Minister that exceptional circumstances exist for the grant of the visa, which would result in the applicant being authorised to stay in Australia for 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 they were not satisfied that exceptional circumstances exist for the grant of the visa.
The applicant did not appear at the time of hearing. There was no explanation provided as to why the applicant did not attend. The Tribunal determined to hear the application on the papers.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
BACKGROUND
The applicant is a 57 year old national of China who last arrived in Australia on 26 June 2017 as the holder of a FA-600 (Visitor- Tourist Stream) visa which ceased on 9 October 2017. An onshore application for a further FA 600 visa was granted which allowed the applicant to remain onshore until 24 June 2018.
On 18 June 2018 the applicant lodged another application for an FA600 Visitor- Tourist Stream, requesting a further stay until 18 June…

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 HUANG (Migration)

Details

AGLC: HUANG (Migration) [2019] AATA 6577
Case: [2019] AATA 6577
Decision Date: 15 August 2019

CaseChat Overview and Summary

This matter concerned an application for a Visitor (Class FA) visa, subclass 600 (Tourist stream), by a national of China. The applicant sought to remain in Australia for a period exceeding 12 consecutive months, which would result from the grant of the visa, to care for her daughter and granddaughter. The Tribunal was required to determine whether the applicant met the criteria under cl.600.215 of the Migration Regulations 1994, which mandates exceptional circumstances for a visa grant that would result in a stay of more than 12 consecutive months.

The Tribunal considered the applicant's stated reasons for the extended stay, which were to care for her daughter and granddaughter. It accepted that the applicant wished to provide this care. However, the Tribunal noted that no further reasons were provided, and crucially, no medical evidence regarding the granddaughter's condition was presented. The Tribunal interpreted "exceptional circumstances" according to its ordinary English meaning, referring to it as unusual or atypical, as supported by case law such as *An v Minister for Immigration and Citizenship* [2007] FCAFC 97.

Ultimately, the Tribunal concluded that the circumstances presented did not meet the threshold of "exceptional" as required by cl.600.215. The applicant's desire to care for family, while understandable, was not considered sufficiently unusual or extraordinary to satisfy the regulatory requirement, particularly in the absence of supporting evidence for the claimed need for care. Consequently, the Tribunal affirmed the decision under review.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

BACKGROUNDThe applicant is a 57 year old national of China who last arrived in Australia on 26 June 2017 as the holder of a FA-600 (Visitor- Tourist Stream) visa which ceased on 9 October 2017. An onshore application for a further FA 600 visa was granted which allowed the applicant to remain onshore until 24 June 2018. On 18 June 2018 the applicant lodged another application for an FA600 Visitor- Tourist Stream, requesting a further stay until 18 June 2019. As the applicant has remained in Australia continuously since their last arrival on 26 June 2017 this would result in the applicant staying in Australia for a total period exceeding 12 consecutive months. The applicant has stated their reasons for further stay are “To temporarily stay in Australia to take care of my daughter and little granddaughter”. No further reasons were provided.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 26 June 2017 as the holder of a subclass FA-600 (Visitor Tourist Stream) visa. It ceased to be in effect on 26 September 2017. The applicant applied for and was granted a Visitor (Class FA) on 9 October 2017 which ceased on 24 June 2018. The applicant made her current subclass 600 visa application on 18 June 2018 and 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 Visitor Tourist Stream visa and a bridging visa A, which are visas specified in cl.600.215. The Tribunal considered the applicant's circumstances as presented to the Tribunal. The Tribunal accepts that the applicant wishes to spend time in Australia to care for her daughter and granddaughter. 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.

Evidence

Evidence Before The Court

On 18 June 2018 the applicant lodged another application for an FA600 Visitor- Tourist Stream, requesting a further stay until 18 June 2019. As the applicant has remained in Australia continuously since their last arrival on 26 June 2017 this would result in the applicant staying in Australia for a total period exceeding 12 consecutive months. The applicant has stated their reasons for further stay are “To temporarily stay in Australia to take care of my daughter and little granddaughter”. No further reasons were provided.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 26 June 2017 as the holder of a subclass FA-600 (Visitor Tourist Stream) visa. It ceased to be in effect on 26 September 2017. The applicant applied for and was granted a Visitor (Class FA) on 9 October 2017 which ceased on 24 June 2018. The applicant made her current subclass 600 visa application on 18 June 2018 and 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 Visitor Tourist Stream visa and a bridging visa A, which are visas specified in cl.600.215. The Tribunal considered the applicant's circumstances as presented to the Tribunal. The Tribunal accepts that the applicant wishes to spend time in Australia to care for her daughter and granddaughter. 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. BACKGROUNDThe applicant is a 57 year old national of China who last arrived in Australia on 26 June 2017 as the holder of a FA-600 (Visitor- Tourist Stream) visa which ceased on 9 October 2017. An onshore application for a further FA 600 visa was granted which allowed the applicant to remain onshore until 24 June 2018. On 18 June 2018 the applicant lodged another application for an FA600 Visitor- Tourist Stream, requesting a further stay until 18 June 2019. As the applicant has remained in Australia continuously since their last arrival on 26 June 2017 this would result in the applicant staying in Australia for a total period exceeding 12 consecutive months. The applicant has stated their reasons for further stay are “To temporarily stay in Australia to take care of my daughter and little granddaughter”. No further reasons were provided.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 26 June 2017 as the holder of a subclass FA-600 (Visitor Tourist Stream) visa. It ceased to be in effect on 26 September 2017. The applicant applied for and was granted a Visitor (Class FA) on 9 October 2017 which ceased on 24 June 2018. The applicant made her current subclass 600 visa application on 18 June 2018 and 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 Visitor Tourist Stream visa and a bridging visa A, which are visas specified in cl.600.215. The Tribunal considered the applicant's circumstances as presented to the Tribunal. The Tribunal accepts that the applicant wishes to spend time in Australia to care for her daughter and granddaughter. 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

Full text does not contain this section.