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

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).
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.
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, 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.
The applicant was represented in relation to the review by her registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
BACKGROUND
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.
To satisfy the requirements for the grant of a visitor visa the applicant stated that their reasons for applying for the extended stay…

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.

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Details

AGLC: Iopu (Migration) [2019] AATA 4751
Case: [2019] AATA 4751
Decision Date: 28 August 2019

CaseChat Overview and Summary

This matter concerned an application for a Visitor (Class FA) visa, subclass 600, by a 70-year-old national of Samoa. The applicant sought a further extension of stay until 9 July 2019, which would result in her being in Australia for a total period exceeding 12 consecutive months. The applicant's stated reason for the extended stay was to provide childcare for her grandchild, as her daughter was working full-time. The Tribunal was required to determine whether the applicant met the criteria under clause 600.215 of the Migration Regulations 1994, which mandates exceptional circumstances for granting a visa that would allow an applicant to remain in Australia for more than 12 consecutive months.

The Tribunal considered the applicant's history of visa applications and stays in Australia, noting previous visitor visas and a refused application for a different visa class. The applicant had been granted a subclass 600 visa allowing her to remain until 9 July 2018, and she applied for the current visa on 9 July 2018. The Tribunal acknowledged the applicant's desire to assist her daughter with childcare for her grandson, who was seven years old, and accepted that the applicant had been the primary carer since the child was two weeks old, with her daughter being a single parent in full-time employment. However, the Tribunal interpreted "exceptional circumstances" in its ordinary English meaning, as unusual or extraordinary, referencing the Full Federal Court's interpretation in *An v Minister for Immigration and Citizenship* [2007] FCAFC 97.

The Tribunal concluded that while the applicant's desire to provide childcare was understandable, her circumstances did not meet the threshold of "exceptional" as required by clause 600.215. The Tribunal found that the applicant's role as a carer, while significant, was not unusual or extraordinary in the context of the visa regulations. Therefore, the Tribunal determined that the requirements of clause 600.215 were not met. The Tribunal affirmed the decision not to grant the visa.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.BACKGROUND 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. 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. 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 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 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. 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. On 22 August 2019 an application for a Family - Parent – Sponsorship was made with the applicant named as a party to the request. 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.

Evidence

Evidence Before The Court

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

Decision

Reasons for decision

Accordingly the Tribunal finds the requirements of cl.600.215 are not met and the decision under review should be affirmed.DECISION The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.Moira BrophyMember

Ratio Decidendi

Legal Principle Established

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