Nguyen (Migration) - [2021] AATA 5423

Nguyen (Migration) [2021] AATA 5423 (15 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Vinh Thi Nguyen
CASE NUMBER:  2006093
HOME AFFAIRS REFERENCE(S):          BCC2020/204583
MEMBER:Naomi Schmitz
DATE:15 December 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 15 December 2021 at 12:37pm
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – tourist stream– applicant had stayed in Australia for a total period of more than 12 consecutive months – exceptional circumstances don’t exist –visa applicant has remained onshore continuously for approximately three and a half years – decision under review affirmed

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
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 Home Affairs on 9 March 2020 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 28 January 2020. 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.
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.
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 circumstances for the grant of the visa.
The visa applicant appeared before the Tribunal on 13 December 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant’s daughter Ms Nguyen and son-in-law Mr Capalb. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The Tribunal exercised its discretion to hold the hearing by Microsoft Teams. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by Microsoft Teams, having regard to the nature of this matter and the individual circumstances of the visa applicant and Ms Nguyen who have relocated from Melbourne to Brisbane and are only able…

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 Nguyen (Migration)

Details

AGLC: Nguyen (Migration) [2021] AATA 5423
Case: [2021] AATA 5423
Decision Date: 15 December 2021

CaseChat Overview and Summary

This matter concerned an application for review of a decision to refuse a Visitor (Class FA) visa, subclass 600 (tourist stream), made by Ms Nguyen. The Administrative Appeals Tribunal was required to determine whether the applicant met the criteria under cl.600.215 of the Migration Regulations 1994, which mandates exceptional circumstances for the grant of a visa if it would result in the applicant being authorised to remain in Australia for more than 12 consecutive months.

The central legal issue before the Tribunal was the interpretation and application of the term "exceptional circumstances" within the context of cl.600.215. The Tribunal considered the ordinary English meaning of "exceptional" as unusual or extraordinary, and drew upon existing case law, such as *An v Minister for Immigration and Citizenship* [2007] FCAFC 97, which held that "exceptional circumstances" are unusual or atypical. The Tribunal also noted the comments in *Wang v Minister for Immigration and Multicultural and Indigenous Affairs* [2005] FMCA 918, which approved of Kiefel J's statement in *Hatcher v Cohn* [2004] FCA 1548 that exceptional circumstances are those that set a person apart from others in a comparable situation.

The Tribunal found that the applicant, a citizen of Vietnam, had entered Australia on 2 August 2018 and had remained onshore continuously for approximately three and a half years, having been granted two subsequent Visitor visas. The applicant's stated reasons for seeking further stay included providing care for her daughter and grandchild, concerns about COVID-19 in Vietnam, and eligibility for a booster shot. However, the Tribunal noted that no evidence was provided to support the claim of exceptional circumstances, despite a request from the Tribunal. The Tribunal concluded that the applicant's circumstances, including the need for childcare and the desire to remain in Australia for an extended period, did not constitute "exceptional circumstances" as required by the regulation.

Consequently, the Tribunal affirmed the decision under review, finding that the applicant had not satisfied the criteria for the grant of the visa under cl.600.215.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The visa applicant gave evidence that she, Ms Nguyen and Mr Capalb relocated from Melbourne to Brisbane in July 2021, as the warmer weather is better for the visa applicant’s health. She also stated that her daughter is currently unemployed, does not own a car, does not have a drivers licence and cannot drive. Mr Capalb is currently undertaking a PhD. 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 Tribunal finds that the visa applicant entered Australia on 2 August 2018 as the holder of a FA-600 visitor (Tourism Stream) visa. She was granted two further Visitor visas. She has remained onshore continuously for approximately three and a half years. Accordingly, 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. As discussed with the visa applicant, Ms Nguyen and Mr Capalb 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. 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.’

Decision

Reasons for decision

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.BACKGROUND and EVIDENCE AT HEARING After this matter was constituted to the Tribunal Member on 26 November 2021, the Tribunal wrote to Mr Capalb and requested that the following be provided by 6 December 2021; any evidence in support as to why exceptional circumstances exist for the grant of the visa applicant’s visa pursuant to cl.600.215 of the Migration Regulations 1994 (Cth). The Tribunal did not receive any evidence in support of the application for review. The visa applicant is a 66-year-old citizen of Vietnam who arrived in Australia on 2 August 2018 as the holder of an FA-600 Tourist Visa. The visa applicant gave evidence that the purpose of her original visit was to assist her daughter whilst she was pregnant with her first child and stay for six months. The visa applicant’s daughter gave birth to her first and only child on 15 July 2019. The child is currently aged two years and five months. The visa applicant gave evidence that she made two subsequent applications for a FA600 Visitor visas (Tourist Stream) pursuant to cl 600.215. The basis for these prior claims was that her daughter was a first-time mother, with a newborn baby, adjusting to motherhood and the visa applicant wished to extend her stay to provide care and support to her daughter and grandchild. Travel movement records obtained by the Tribunal show that she obtained a second Visitor visa on 21 January 2019 which was valid until 2 August 2019 and a third Visitor visa on 14 August 2019 which ceased on 2 February 2020. These records were put to the visa applicant at the hearing who confirmed they were correct. The Tribunal also notes these two previous visa grants were referred to in the Delegate’s decision, a copy of which was provided to the Tribunal by the visa applicant. To satisfy the requirements for the grant of a Visitor visa, the applicant is required to demonstrate that exceptional circumstances exist for the grant of the visa. On 28 January 2020, the visa applicant requested a further stay of up to 12 months until 28 January 2021, which would result in the visa applicant being authorised to remain in Australia for a total period exceeding 12 consecutive months. The visa applicant provided the following reasons for her further stay:‘My wife is in constant back pain, sleep deprivation, pre-natal depression and no time even to eat, drink due to my daughter’s high demand of daily caring. We need aid with childcare, respite from the emotional rollercoaster and my mother-in-law is a family member that wants to aid our situation’. At the hearing, the visa applicant gave evidence that she wanted to stay a further six to 12 months, bringing her stay to June or December 2022. She sought the visa to provide care and support to her daughter and grandchild. She also sought the visa due to an alleged COVID-19 outbreak in Vietnam and to allow time to receive the COVID-19 booster shot. She stated she is fully vaccinated, receiving her second COVID-19 vaccination on 21 October 2021, making her eligible for the COVID-19 booster shot in March 2022.[1] [1]

Ratio Decidendi

Legal Principle Established

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