Kwon (Migration)

[2019] AATA 1705

Kwon (Migration) [2019] AATA 1705 (27 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Nayoung Kwon

CASE NUMBER:  1800787

HOME AFFAIRS REFERENCE(S):           BCC2017/4718899

MEMBER:Moira Brophy

DATE:27 February 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 27 February 2019 at 9:45am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – no exceptional reasons for grant of visa – applicant sought to stay to collect monies owed – court ordered sum of money in applicant’s favour – visa previously extended – meaning of exceptional circumstances – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 137L
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 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 22 December 2017 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 11 December 2017. 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 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. They are also required to satisfy cl.600.211 which requires the visa applicant to satisfy the Minister that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.215. 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 appeared before the Tribunal on 18 February 2019 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

6. The applicant provided submissions after the hearing. Those submissions have been taken into account by the Tribunal.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

9. 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.

10. The Tribunal finds that the applicant entered Australia on 20 December 2015 as the holder of a subclass TZ 417 Working Holiday visa. It ceased to be in effect on 20 December 2016. The applicant applied for and was granted a Visitor (Class FA) on 4 January 2017 which ceased on 20 December 2017. The applicant made her current subclass 600 visa application on 11 December 2017 and was granted a bridging visa A in association with that visa application.

11. 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.

12. 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 ensure she is paid the monies owed to her. The Tribunal accepts from the evidence of the applicant that she has been the victim of a fraud and initially she requested the additional time to allow her to remain while the matter was dealt with by the courts. From the evidence provided at the time of hearing it became evident the courts had dealt with the matter in June 2018 and a monetary order had been made in favour of the applicant. The Tribunal further accepts the evidence of the applicant that those monies remain outstanding and the applicant wishes to stay in Australia pending the payment of the outstanding court orders.

13. 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.

14. 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.’

15. 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.

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

17. The applicant told the Tribunal she came to Australia in 2015 on a one year working holiday. She said at the end of her 12 months she was precluded from applying for an extension of her working holiday visa because of her age. She then applied for a visitor visa. She is currently living with her friend. She is not working as she is on a Bridging visa. She does not have any family in Australia. Her parents and younger sister are in Korea. She is currently not in a relationship.

18. At the time of application the applicant stated she wished to remain in Australia until the fraud investigation was concluded. She said she needed to stay to ‘receive a resolution’ and that she had sufficient savings to support herself and if she needed additional funds she would obtain them from her family in Korea.

19. At the time of hearing the applicant said she had come to Australia in December 2015 on a Woking holiday visa. She had been the victim of a fraud on 28 November 2016 when monies were transferred out of her bank account without authorisation. The matter was reported to police and the applicant was advised she would be required to remain in Australia to attend court as a witness. On 4 January 2017 the applicant was granted an FA600 Visitor-Tourist Stream visa which ceased on 20 December 2017. On 11 December 2017 the applicant lodged an application for a further FA600 visa requesting a stay until December 2018.

20. As previously stated that application was refused (para 4) and the applicant sough review at this Tribunal.

21. The applicant told the Tribunal that the matter had been dealt with by the court on 31 May 2018. An order for a sum of money was made in favour of the applicant. The Tribunal did not have before it a copy of the orders made however the Tribunal accepts that an order for a sum of money was made on favour of the applicant and that as at the date of the Tribunal hearing those monies have not been paid.

22. 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 ensure her monies were repaid. When asked details of the court orders made the applicant was not able to provide. She said the person who owes her money keeps ‘fobbing’ her off. That submission was corroborated by material provided after the hearing that included copies of text messages exchanged between the parties. When asked whether the applicant had availed herself of any other options such as requiring the court to take over the collection of the monies the applicant said it was her preference to collect herself rather than availing herself of other options. Copies of text messages provided to the Tribunal were indicative of there being ongoing contact between the parties.

23. Whilst the Tribunal was mindful of the applicant’s wish to remain in Australia to ensure the monies, the subject of the court order were paid to her 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 also mindful the applicant did not have to remain in Australia to collect the monies. They could be transferred into her bank account.  The Tribunal was not satisfied the circumstances as relied on by the applicant were exceptional circumstances for the grant of the visa.

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

    DECISION

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

    Moira Brophy
    Member