Iopu (Migration)

[2019] AATA 4751

Iopu (Migration) [2019] AATA 4751 (28 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Taoa Iopu

CASE NUMBER:  1821170

HOME AFFAIRS REFERENCE(S):           BCC2018/2555836

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 11:02am

CATCHWORDS

MIGRATION – Visitor (Class FA) – Subclass 600 (Visitor) – exceptional circumstances – exceed stay of 12 consecutive months – third request to extend – provide childcare to daughter – no exceptional circumstances – decision under review affirmed 

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 600.215

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 11 July 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 8 July 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, Mrs Taoa Iopu appeared before the Tribunal on 27 August 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the daughter of the applicant Ms Leano Sia Lopu.

6. The applicant was represented in relation to the review by her registered migration agent.

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

   BACKGROUND

8. The applicant is a 70 year old national of Samoa who last arrived in Australia on 9 July 2017 as the holder of an FA-600 Tourist Visa which was valid till 9 October 2017. A subsequent application was made for a further stay which allowed the applicant to remain onshore until 9 July 2018. The applicant has made a third application requesting a further stay until 9 July 2019 which would result in the applicant being authorised to remain in Australia for a total period exceeding 12 consecutive months.

9. To satisfy the requirements for the grant of a visitor visa the applicant stated that their reasons for applying for the extended stay were to provide childcare for her grandchild because her daughter was working fulltime. The applicant’s previous visa had been granted for the same purpose.

10. In support of this applicant the following documents were provided to the Department :

    ·     A statutory declaration written by the applicants daughter Leano Sia Iopu

    ·     Westpac bank statement of Leano Sia Iopu

    ·     Payslip for Leano Sia Iopu

    ·     ANZ statement of account activity for Taoa Iopu

    ·     Early retirement letter addressed to Taoa Ipou

    ·     Application for retirement for  Taoa Ipou

    ·     Coy of  Taoa Ipou’s passport

    ·     PAYG summary for Leano Sia Iopu

    ·     Marriage certificate for Christina Taoa & Reupena Iopu

    ·     Copy of  applicants birth certificate

    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 authorised 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 applicant first arrived in Australia on a TR676 visa on 1 November 2010 and has visited yearly on visitor visas until 2015, when she applied for a NZ Citizen (Family Relationship) Temporary Visa (UP 461) visa. This was refused by the Department on 21 January 2016, and the decision was reviewed by the AAT and affirmed on 27 January 2017. The applicant then departed Australia on 24 February 2017. She then applied for and was granted an FA-600 Tourist visa and she arrived in Australia on 9 July 2017. The applicant made her current subclass 600 visa application on 9 July 2018 and was granted a bridging visa A in association with that visa application.

14. On 22 August 2019 an application for a Family - Parent – Sponsorship was made with the applicant named as a party to the request.

15. The Tribunal finds that the grant of the visa sought would result in the applicant being authorised 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.

16. 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 assist her daughter in caring for her son. The Tribunal accepts from the evidence of the applicant that she has been living with her daughter and has been the primary carer for her son since he was two weeks old. Her daughter has a son who was born on 24 May 2012 and is currently aged 7 years. Her daughter is a single parent and she has been in paid employment since her son was born and the applicant has cared for her son while she worked. In the periods when the applicant has had to leave Australia for visa purposes she has taken her son back to Samoa with her.

17. As discussed with the applicant at hearing, 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.

18. 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.’

19. 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.

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

21. The applicant told the Tribunal she came to Australia to assist her daughter in caring for her son. She took early retirement from her job in Samoa to do that.  She is married but has not seen her husband since 2015 as he has remained in Samoa. Her three children are all living in Australia. Her two daughters came to Australia from Samoa and her son originally moved from Samoa to New Zealand but he then came to Australia.  

22. At the time of application the applicant stated she wished to remain in Australia until 8 July 2019. She said she needed to stay to help her daughter with looking after her son. She stated she was self-funded and she had sufficient funds in the bank to meet her needs for the period she was seeking to stay.

23. The applicant told the Tribunal that although the period she had requested had passed she was still needed to assist her daughter with the care of her son especially now as he was at school and he needed to be taken to and from each day.

24. When asked what were the exceptional circumstances the applicant wanted the Tribunal to take into account the applicant said she wanted to be able to stay in Australia to assist her daughter with the care of her son. When asked why she was needed now her sister’s son was at school she said it was difficult for her daughter as she was a single parent and financially she needed to work to meet her family’s needs.  

25. Whilst the Tribunal was mindful of the applicant’s wish to remain in Australia to assist her daughter with her caring responsibilities the Tribunal was also mindful that she had previously been granted a temporary visa for this purpose and that there was no real change in the situation since visa 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.

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

    DECISION

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

    Moira Brophy
    Member