Lim (Migration)

[2019] AATA 5392

Lim (Migration) [2019] AATA 5392 (4 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Shea Won Lim

CASE NUMBER:  1907152

HOME AFFAIRS REFERENCE(S):          BCC2019/1038298

MEMBER:Moira Brophy

DATE:4 September 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 04 September 2019 at 11:07am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – onshore for more than 12 consecutive months – exceptional circumstances – assist and support mother who is recovering from surgery for cancer – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 18 March 2019 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 2 March 2019. 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 appeared before the Tribunal on 3 September 2019 by video link to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

   BACKGROUND

7. The applicant is a 26 year old national of Malaysia. The applicant last arrived in Australia on 8 March 2018 as the holder of a FA601 Visitor- Tourist Stream visa which was valid until 8 June 2018. While onshore she also applied for and was granted two subsequent subclass 600 visitor visas, the last of which ceased on 8 March 2019.

8. On 2 March 2019 the applicant lodged a third onshore application for a FA600 Visitor- Tourist Stream visa, requesting a further stay until 8 March 2019. She has stated her reasons for further stay are “I was really enjoyable last year that allowed me to stay here with my parents, I want to spend longer time with them, gain experience of learning parts of farming knowledge, plantation, while exploring somewhere in Australia.”

9. In support of this review  the following documents were provided to the Tribunal:

   ·Financial report of the Quirk-Meeks Family Trust for year ended 30 June 2018.

   ·Copy of ANZ Saver Account statement in name of applicant.

   ·Notice of Assessment for Mrs Emmy Kung year ended 30 June 2017.

   ·Letter from Frazer Quirk-Meeks dated 1 March 2019.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

11. 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.

12. The applicant last arrived in Australia on a FA601 visa on 8 March 2018 as the holder of a FA601 Visitor- Tourist Stream visa which was valid until 8 June 2018. While onshore she also applied for and was granted two subsequent subclass 600 visitor visas, the last of which ceased on 8 March 2019. On 2 March 2019 the applicant lodged a third onshore application for a FA600 Visitor- Tourist Stream visa, requesting a further stay until 8 March ‘2019’ (the Tribunal clarified at hearing this was meant to be 2020) which would result in the applicant being authorised to remain in Australia for a total period exceeding 12 consecutive months.

13. 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.

14. 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 mother and step father and to learn more about their faring enterprise. The Tribunal accepts from the evidence of the applicant that she has been living with her mother and has been assisting her as her mother was diagnosed with cancer last year and underwent surgery. She said her mother was compromised in what she could do since the surgery. She was not able to lift heavy items and required assistance to ensure she continued to recover. The family had recently moved from Euston NSW to Mildura. They live on a farm and grow grapes which they are hoping to export to Malaysia in the near future. Her mother and step father were currently in Malaysia in relation to their proposed business venture. The applicant wanted to be able to stay in Australia to learn all aspects of the business so she could then run the business operations in Malaysia. The applicant considered it important that she be able to assist her mother in this way. She said it was important they have time together as they had been separated for ten years. That was when her mother had moved to Australia.

15. 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.

16. 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.’

17. 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.

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

19. The applicant told the Tribunal she came to Australia to assist her mother and to support her as she recovered from her surgery for cancer. 

20. At the time of application the applicant stated she wished to remain in Australia until 8 March 2020. She said she needed to stay to help her mother and to learn more about the business of her mother and step father. She stated her mother and step father would provide her with food and accommodation and would meet all her costs.

21. The applicant told the Tribunal that although the period she had requested had mostly passed she was still needed to assist her mother and she really wanted to stay for longer.

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 assist her mother and to acquire the skills necessary for her to then run the proposed business of her mother and step father in Malaysia. She said she would definitely return to Malaysia as her mother and step father had purchased a unit there for her to live in. Her father and three siblings were all in Malaysia.

23. Whilst the Tribunal was mindful of the applicant’s wish to remain in Australia to assist her mother recover from her surgery for cancer 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.

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