Lu (Migration)

[2019] AATA 1792

Lu (Migration) [2019] AATA 1792 (16 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Jianjun Lu

CASE NUMBER:  1718928

HOME AFFAIRS REFERENCE(S):           BCC2017/2754136

MEMBER:Christine Kannis

DATE:16 April 2019

PLACE OF DECISION:  Perth

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

Statement made on 16 April 2019 at 6:19am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – grant of visa would result in applicant staying in Australia for more than 12 months – no exceptional circumstances – meaning of exceptional circumstances – does not intend to stay in Australia temporarily – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 137
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 3 August 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 2 August 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 visa 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 that where the grant of the visa would result in the applicant staying consecutively in Australia for more than 12 months, there must be exceptional circumstances for the grant of the visa.

4. 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.

5. The visa applicant appeared before the Tribunal on 25 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant’s son-in-law, Mr David Power. 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicant satisfies cl.600.215 which provides that:

   (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 (Temporary) visa;

   (d)  a Bridging visa. 

8. The criterion is one that must be satisfied at the time of the Tribunal’s decision.

9. The visa applicant was born on 21 January 1959.  She is the holder of a Chinese passport. 

10. The visa applicant most recently arrived in Australia on 20 September 2016 as the holder of a Subclass 600 Visitor visa. This visa ceased on 20 September 2017. She applied for the visa which is the subject of this review on 2 August 2017 and requested a stay of a further 15 months up until 18 December 2018. She currently holds a Bridging A visa.

11. The visa applicant in her application stated she wished to extend her stay because she was staying with her daughter and her grandchildren.

12. At the hearing the Tribunal explained the temporary nature of the Visitor visa scheme and that it had to consider whether the granting of a further Visitor visa would result in the applicant being in Australia for more than 12 consecutive months.

13. The Tribunal had regard to the applicant’s reasons for the application as set out in her Application for Review of Decision in which she provided the following information in support of her application for review:

    ·When she was living in China her daughter was a single parent of twin girls. Her daughter’s partner had abandoned her and so she gave up work and lived with her daughter to help her out.

    ·Her daughter met her Australian husband when he was working in China. They had two children. Her daughter was granted permanent residency in Australia for herself and her twin daughters.

    ·They all moved from China to Malaysia because of her son-in-law’s work.

    ·In 2016 her daughter and her husband and the four children moved back to Australia. She travelled to Australia on a Tourist visa.

    ·She has lived with her daughter since she had the twin girls. She has a strong bond with her daughter and her grandchildren. She has lived with her daughter for nearly ten years and she has nowhere else to go. Her husband passed away many years ago and she does not have a home in China.

14. The visa applicant told the Tribunal that on 2 January 2016 she arrived in Melbourne with her daughter, son-in-law and grandchildren. At that time she applied to come to Australia on a Visitor visa because they did not know how long they would be staying here. They left Malaysia in a rush after her son-in-law lost his job.

15. The visa applicant said she last lived in China in 2013 and she has no place to go if she is not allowed to stay in Australia with her daughter and grandchildren.  Her husband passed away in 2005. She returned to China in 2016 when her mother passed away. She has a sister living in China and a brother living in Toronto. She has not kept in contact with members of her extended family in China. She has no friends in China, only colleagues.

16. The visa applicant told the Tribunal that she helps her daughter look after her four children who are aged 10, 10, 8 and 4 years. She has helped look after them since they were born and has lived with them all their lives.

17. Noting that the visa applicant applied to stay in Australia up to 18 December 2018 and that date has now passed, the Tribunal asked her how long she intended staying in Australia. She said she wished to remain here permanently.

18. Mr Power told the Tribunal that when he married the visa applicant’s daughter he made a commitment to her that he would take care of her mother. When he lost his job in Malaysia at the end of 2015 he arranged for the visa applicant to come to Australia on a Subclass 600 visa because it was the quickest way to enable her to do so. Mr Power requested the Tribunal to give the visa applicant further time to allow her to apply for an alternative visa such as a Subclass 103 Parent visa.

19. Mr Power said the emotional bonds between the visa applicant and her daughter and her grandchildren are very strong. He said they all rely heavily on the visa applicant but when asked to provide examples of this reliance he referred only to the emotional bonds and the cultural difference between Chinese and Australian families.

20. Mr Power said when he lost his job in Malaysia in December 2015 he and the family came to Australia so he could look for employment. They did not know whether they would stay in Australia temporarily or permanently. He was unemployed for 18 months and eventually found work in Perth. They have decided to stay here permanently.

21. Mr Power said the children know the visa applicant’s visa has been refused and they are distressed at the possibility that she will have to depart Australia. He said she has the funds to financially support herself in Australia and he is also able to support her. 

22. The Tribunal finds that the grant of the Visitor visa sought would result in the visa 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 those circumstances, exceptional circumstances needed to be established for the criterion in cl.600.215 to be met.

23. 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'.

24. 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.

25. 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.

26. The Tribunal has 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 authorizing 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:

    ocould not have been anticipated at the time their visitor visa was granted and

    ois beyond the visa applicant's control and

    owhere not granting a visa would cause significant hardship to an Australian resident or citizen.

27. The visa applicant has applied for a Visitor visa, which is a temporary visa for the purpose of tourism or visiting family. On her own admission, the visa applicant does not have a genuine intention to visit temporarily and she told the Tribunal she wishes to stay in Australia permanently. Mr Power foreshadowed the possibility of making an application for a Parent visa.

28. The Tribunal has considered the visa applicant’s claim that she has nowhere to go if she is required to depart Australia. The Tribunal accepts that the visa applicant has not resided in China since 2013 however notes that she has a sister living there and she most recently visited in 2016.  The Tribunal accepts that the visa applicant has lived with her daughter and grandchildren for the past ten years and has a close relationship and whilst sympathetic to the her wish to remain in Australia with them, the Tribunal is not satisfied that her circumstances amount to exceptional circumstances in the sense of them being out of the ordinary or unusual. There is no evidence before the Tribunal to suggest the applicant falls into the circumstances identified in the Department's policy, such as death, serious illness or serious medical condition of a member of the visa applicant’s family, or any other types of circumstances which are unusual or out of the ordinary. Further, the Tribunal is not satisfied that there is evidence before it suggesting that there has been such a change to the applicant's circumstances (or the circumstances of an Australian resident) that could not have been anticipated and where not granting a visa would cause significant hardship to an Australian resident or citizen.

29. The Department’s policy is a guide only, but having considered the visa applicant’s circumstances, the Tribunal is not satisfied there are other exceptional circumstances warranting the grant of the visa.

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

    DECISION

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

    Christine Kannis

    
    

    Member