James (Migration)

[2022] AATA 4644

James (Migration) [2022] AATA 4644 (2 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Edward Jesse James

REPRESENTATIVE:  Mr Prabhjot Singh Sandhu (MARN: 0963599)

CASE NUMBER:  2208452

HOME AFFAIRS REFERENCE(S):          BCC2020/1251315

MEMBER:Peter Papadopoulos

DATE:2 December 2022

PLACE OF DECISION:  Sydney

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

Statement made on 02 December 2022 at 2:43pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – further stay in Australia extending over 12 months – exceptional circumstances – impact of the COVID-19 pandemic – family expecting another child – pandemic-related restrictions no longer apply – no other health-related reason – visa refusal on immigration record – decision under review affirmed       

LEGISLATION

Migration Act 1958, ss 65, 137L
Migration Regulations 1994, Schedule 2, cl 600.215

CASES

An v Minister for Immigration and Citizenship [2007] FCAFC 97
Hatcher v Cohn [2004] FCA 1548
Oreb v Wilcox (2004) FCA 1520
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 Home Affairs on 25 May 2022 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (“the Act”).

2. The visa applicant applied for the visa on 25 March 2020. At the time the visa application was lodged, Class FA contained one visa subclass, the subclass 600 (Visitor) visa (“subclass 600 visa”) which had 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 (Cth) (“the Regulations”). Relevantly to this case, they include cl 600.215:

   600.215
   (1) If subclause (2) applies—exceptional circumstances exist for the grant of the visa.
   (2) This subclause applies if the grant of the visa would result in the applicant being authorised to stay in Australia as the holder of one or more of the following visas for a total period of more than 12 consecutive months:

   (a) one or more visitor visas;
   (b) a Subclass 417 (Working Holiday) visa;
   (c) a Subclass 462 (Work and Holiday) visa;
   (d) a bridging visa.

   Evidence before the Department

4. The applicant is a 38 year old male from the United Kingdom (“UK”). Department records indicate that he first arrived in Australia on 6 January 2020 on a subclass 601 Electronic Travel Authority visa which permitted him to remain in Australia for three months after entry.

5. He applied for a subclass 600 visa on 25 March 2020 seeking to remain in Australia until 22 March 2021. The applicant was represented in relation to their visa application by Mr Prabhjot Singh Sandhu (MARN 0963599).

6. In a section of the visa application form entitled “Further stay”, the applicant was provided with the following guidance:

   If the request for further stay will result in the applicant being authorised to stay in Australia for more than 12 months on certain visitor, working holiday and bridging visas, they must demonstrate that they have exceptional reasons for the further stay. Provide all details.

7. Beneath that guidance note, the applicant provided the following details in relation to their reason for further stay in Australia:

   We are unable to travel due to Corona virus threat. My wife is expecting baby and she I need to stay with her till baby is born and my family is able to fly back to the UK.

8. Documents submitted in support of the application include and unsigned and undated statement from the applicant stating that he:

   will stay in self isolation in best interest of Australian community till corona virus threat is vanished.

9. On 25 May 2022, the delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.215 because the delegate was not satisfied that exceptional circumstances existed for the grant of the visa.  

   Evidence before the Tribunal

10. On 9 June 2022, the applicant applied to the Tribunal for review of the Department’s decision to refuse to grant the visitor. The applicant was invited to appear before the Tribunal on 30 November 2022 to give evidence and present arguments. The Tribunal did not receive any further evidence or submissions prior to the hearing.

11. The applicant was represented in relation to the review by Mr Prabhjot Singh Sandhu (MARN 0963599).

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in this case is whether cl 600.215 is met, which requires the Tribunal to determine whether the grant of the visitor visa will result in the applicant being authorised to stay in Australia for more than 12 consecutive months, and if so, whether exceptional circumstances exist for the grant of the visa.

    Would the grant of the visa result in the applicant being authorised to stay in Australia as the holder of one or more prescribed visas for a total period of more than 12 consecutive months?

13. Department records indicate that since he first arrived in Australia on 6 January 2020, he has not left Australia, and has therefore been in Australia for more than 12 consecutive months. Since arriving in Australia he has held a subclass 601 visa and a bridging visa.  Both of these visas are prescribed in cl 600.215. The Tribunal finds that the grant of the subclass 600 visa to the applicant would result in the applicant being authorised to stay in Australia as the holder of one or more of the visas prescribed in cl. 600.215 for a total period of more than 12 consecutive months.

    Do exceptional circumstances exist for the grant of the visa?

14. The legislation does not define exceptional circumstances. 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.

15. 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 the word “exceptional” in the context of cl. 856.213 in Part 856 of Schedule 2 to the Regulations is a simple, non-technical phrase and should be understood as meaning unusual or atypical.

16. The meaning of “exceptional circumstances” in the context of section 137L of the Act was considered by Walters FM in Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 918. In particular, the court referred with approval to the following comments of Jacobson J in Oreb v Wilcox (2004) FCA 1520:

    The terms "exceptional circumstances" or "special circumstances" are gateways to the exercise of a discretion and are to be found in many statutes. They have been said to be elastic instructions and that all that is contemplated is for there to be something unusual or different to take the matter out of the ordinary (see Boscolo v Secretary, Department of Social Security[1999] FCA 106; (1999) 90 FCR 531 at 535-6).

17. Walters FM also referred to the following statements 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 the limitation appears from the relevant statutory provision.

18. Department policy guides decision-makers to recognise exceptional circumstances according to their ordinary dictionary meaning which may include:

    ·     an unanticipated change in an applicant's circumstances (or the circumstances of an Australian citizen or permanent resident) that are beyond the applicant's control and are extraordinary; or

    ·     if an applicant is required to stay in Australia to provide assistance or support due to the death, serious illness or serious medical condition of a member of the applicant's close family in Australia.

19. The online Macquarie Dictionary[1] specifies the following definition for the word “exceptional”:

    adjective 1.  forming an exception or unusual instance; unusual; extraordinary.

    2.  extraordinarily good, as of a performance or product.

    3.  extraordinarily skilled, talented, or clever.

    –exceptionally, adverb
    

    [1] Macquarie Dictionary (online) – (accessed 29 November 2022)

    –exceptionalness, noun

20. Department policy also provides the following guidance in relation to expectations concerning the requirement for, and nature of, evidence to demonstrate exceptional circumstances in any given case: 

    Applicants are to provide supporting evidence of exceptional circumstances, for example documentary evidence from a medical practitioner outlining details of the family member's serious medical condition as well as the circumstances requiring the applicant to provide assistance.

21. At hearing, the Tribunal explained relevant aspects of the legislative framework and how the Tribunal was required to assess whether exceptional circumstances existed.  The Tribunal took evidence from the applicant and his wife by asking them to explain his circumstances and present arguments as to why these are “exceptional” such that they would warrant the grant of the subclass 600 visa in this case.

22. The Tribunal spoke to the applicant and his wife about whether his circumstances were “exceptional circumstances” and, after some discussion, they indicated that:

    ·     the pandemic-related restrictions that required them and their children to stay in Australia initially had not existed for some time and no longer warranted the grant of the visa

    ·     there was no other health-related reason that warranted the grant of the visa. 

23. The Tribunal then put to the applicant and his wife that his circumstances were not “exceptional circumstances” because:

    ·     the pandemic-related restrictions that required him to stay in Australia no longer warranted the grant of the visa

    ·     there was no other health-related reason that warranted the grant of the visa

    ·     the whole world has been dealing with the issue of COVID-19 since early 2020, and that:

    o   all governments including the British government have demonstrated that they have taken steps to safeguard the welfare of people from the effects of COVID-19

    o   airlines were also taking steps to safeguard the safety of passengers on their flights and there were no inbound travel restrictions to the UK for some time

    o   the COVID-19 lockdowns in the UK had ceased well before the date of the delegate’s decision and the Tribunal hearing

    ·     he is not required to stay in Australia to provide assistance or support due to the death, serious illness or serious medical condition of a member of his close family in Australia.

24. The applicant and his wife agreed with the Tribunal’s assessment of his circumstances such that they did not amount to “exceptional circumstances” for the purpose of cl. 600.215.

25. The applicant and his wife then sought to argue that the visa should be granted to each of them and their children, so that they would not have a visa refusal on their immigration record.  The applicant and his wife were concerned about a visa refusal potentially having an adverse impact upon the future visa prospects for them and their children.  At the conclusion of the hearing, the applicant’s representative reiterated his clients’ shared concern about having a “bad immigration record” because of visa refusal.

26. While the Tribunal accepts that the applicant and his wife are concerned in relation to this issue, it remains that it has always been a possibility for any Australian visa applicant to have their visa application refused where they do not meet a particular criterion and consequences may follow as a result of that visa refusal. The possibility that potential adverse consequences might arise in such cases is not, in itself, an unusual or extraordinary circumstance.

27. In this particular case, the Tribunal notes that the applicant and his family had the assistance of their representative before the Department and the Tribunal and presumes that the representative properly advised the applicant and his family about such potential adverse consequences. The Tribunal is not aware that the representative had failed to provide adequate advice in this regard. As was stated at hearing, it is not a matter for the Tribunal to advise the applicant about such risks, especially when such potential adverse consequences had not been sufficiently particularised. That said, the Tribunal notes that the matter of visa application refusal in the applicant’s case was ostensibly not beyond his control as it was open to him to withdraw the application at a point in time before the application was refused by the delegate on 25 May 2022 when it became readily apparent that the prospects of approval had diminished once pandemic restrictions had eased in the UK and Australia.

28. Therefore, while the Tribunal acknowledges the applicant’s desire to avoid any potential adverse impact arising out of having an Australian visa application refused, any potential consequences or unfavourable circumstances arising out of visa application refusal in the applicant’s case do not amount to exceptional circumstances within the meaning of cl. 600.215.

    Concluding comments

29. The legislation is clear, as stated at cl. 600.215, that the visa can be granted if exceptional circumstances exist for the grant of the visa. However, taking into account all of the above sets of circumstances, individually and cumulatively as they apply to the applicant, the Tribunal is not persuaded that exceptional circumstances exist for the grant of the visa.

    DECISION

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

    Peter Papadopoulos
    Member