Kocak (Migration)

[2019] AATA 481

Kocak (Migration) [2019] AATA 481 (4 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Huriye Kocak

CASE NUMBER:  1810496

HOME AFFAIRS REFERENCE(S):           BCC2018/1111732

MEMBER:Moira Brophy

DATE:4 March 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.215 of Schedule 2 to the Regulations.

Statement made on 04 March 2019 at 11:01am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visitor) – Tourist stream – exceptional circumstances for further visa grant – staying in Australia consecutively for more than 12 months – husband’s medical condition – inability to travel – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

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
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 26 March 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 March 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).

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.215. The delegate noted that cl.600.215 required that an applicant who applied for a subclass 600 (Visitor) visa in Australia, and for whom the grant of a further visa would result in that applicant staying in Australia consecutively for more than 12 months, had to demonstrate that exceptional circumstances existed for the grant of the visa. The delegate found that the applicant had not met the requirements of 600.215 because she had not demonstrated exceptional reasons for the grant of the visa.

5. The applicant, Mrs Huriye Kocak appeared before the Tribunal on 25 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Necdet Kocak and from the daughter of the applicant Mrs Sera Aydin. The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

8. 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.

9. The Tribunal finds that the applicant entered Australia on 31 May 2017 as the holder of a subclass FA600 Visitor Tourist Stream visa. It ceased to be in effect on 31 May 2018. The applicant made her current subclass 600 visa application on 8 March 2018 and was granted a bridging visa A in association with that visa application.

10. 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.

11. The Tribunal considered the applicant's circumstances as presented to the Tribunal. The Tribunal accepts from the medical evidence provided, being a letter from Dr Suleyman Demdi of City West Medical Centre dated 20 February 2019 that the husband of the applicant has suffered two strokes since he arrived in Australia, the first in September 2017 and the second in November 2017. He has been left with disabilities since the strokes which impact on his functionality especially his mobility. He is not able to walk independently. Further evidence from Mr Selim Vanlioglu, treating physiotherapist dated 11 February 2019 stated  Mr Kocak is not able to dress , shower, eat, toilet or transfer without assistance he required a wheelchair if required to move any distance. The medical opinion was that he was not fit to travel.

12. 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.

13. 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.’

14. 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.

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

16. The applicant told the Tribunal her husband’s health condition had markedly changed since they came to Australia in 2017. She said they had travelled to Australia to be with their daughter when she gave birth to her son. Their daughter has been diagnosed with multiple sclerosis (MS) and she required assistance at that time. They had been to Australia on three previous occasions when her condition had flare ups. When those flare ups occur it can take a few months for her to recover. The MS was aggressive during the pregnancy and specific treatment was required. The applicant said they arrived in Australia one month before her daughter was due to give birth. Only weeks after their daughter gave birth Mr Kocak had his first stroke and he was in Westmead Hospital for six days but he generally recovered well. Six weeks later he had another more severe stroke. He had to go into a rehabilitation facility. That caused problems financially because his insurance did not cover the second stroke.

17. The applicant said it was difficult for her husband. He was not able to swallow and he had difficulty speaking. He could not go to the bathroom alone. They had been advised he should not fly.

18. The applicant told the Tribunal that her other daughter and two grandchildren were in Turkey as was her mother and brothers and sisters. They wanted to be able to go back to their home when Mr Kocak was able to fly. They did not want to stay in Australia on a permanent basis but they did want to be able to come here again as given their daughter had the condition of MS they considered there would be times when she would need their assistance. They were concerned the decision to refuse their visa application would in the future deny them of the opportunity to do that.

19. The Tribunal is satisfied that the circumstances of the applicant’s deterioration of health following his two strokes amount to exceptional circumstances in the sense of them being out of the ordinary or unusual, as they were not anticipated at the time the visitor visa was granted. Not granting a visa would cause significant hardship to an Australian citizen i.e. the daughter of the visa applicant if she were to be separated from her parents at this time. The Tribunal is satisfied therefore that there are exceptional circumstances for the grant of the visa and that the requirements of cl 600.215 are met.

    DECISION

20. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl.600.215 of Schedule 2 to the Regulations.

    Moira Brophy
    Member