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

1. 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).

2. 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.

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 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.

4. 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.

5. 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.

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

7. 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.

8. 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

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

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.’

16. 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.

17. The Tribunal carefully considered the circumstances as put forward by the applicant.

18. In a letter dated 18 June 2018 the applicant stated she wished to remain in Australia until 18 June 2019 to care for her daughter and her granddaughter who was aged one year at the time. She stated her daughter was a permanent resident of Australia and since she and her husband were both needed to work full time to fund their lifestyle needs the applicant was required to care for their young daughter. She goes on to state her granddaughter is not able to attend child care as she is always ‘weak and sickly.’ There was no medical evidence provided to support that contention. The applicant went on to say she was able to self-fund her time in Australia. She also stated an application had been lodged for a Contributory Parent visa.

19. Whilst the Tribunal was mindful of the applicant’s wish to remain in Australia to support her daughter and her family the Tribunal was also mindful that her visa had previously been extended for this purpose and that there was no real change in the situation since that last extension had been granted. The Tribunal was not satisfied the circumstances as relied on by the applicant were exceptional circumstances for the grant of the visa.

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

    DECISION

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

    Moira Brophy
    Member