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

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

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.

Continue reading Lim (Migration)

Details

AGLC: Lim (Migration) [2019] AATA 5392
Case: [2019] AATA 5392
Decision Date: 4 September 2019

CaseChat Overview and Summary

This matter concerned an application for review of a decision not to grant a Visitor (Class FA) visa, Subclass 600 (Visitor) – Tourist stream. The applicant, a 26-year-old Malaysian national, had been in Australia since March 2018 and sought a further stay to assist her mother, who was recovering from cancer surgery, and to learn about her family's farming enterprise. The decision was made by the Tribunal, with Member Moira Brophy presiding.

The central legal issue before the Tribunal was whether the applicant met the criteria under clause 600.215 of the Migration Regulations 1994. This clause requires that exceptional circumstances must be demonstrated for the grant of a visa if it would result in the applicant being authorised to remain in Australia for a total period of more than 12 consecutive months, holding one or more specified visas. The applicant had lodged a third onshore application for a Visitor visa, which, if granted, would have extended her stay beyond 12 consecutive months.

The Tribunal considered the applicant's stated reasons for wishing to remain in Australia, including assisting her mother with recovery from surgery and learning about the family's grape farming business with a view to future export to Malaysia. While acknowledging the applicant's desire to support her mother and spend time with her family, the Tribunal found that these circumstances did not meet the threshold of "exceptional circumstances" as required by clause 600.215. Consequently, the Tribunal affirmed the decision not to grant the visa.

Orders

Orders of the court

Full text does not contain this section.

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 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. 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.” 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 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 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. 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 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.

Evidence

Evidence Before The Court

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 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 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. 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 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.

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

Full text does not contain this section.