OWOEYE (Migration)

[2019] AATA 6316

OWOEYE (Migration) [2019] AATA 6316 (28 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Esther Kehinde Owoeye

CASE NUMBER:  1901542

HOME AFFAIRS REFERENCE(S):          BCC2018/5934027 EGOKSN9LDE

MEMBER:Moira Brophy

DATE:28 November 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.215 of Schedule 2 to the Regulations.

Statement made on 28 November 2019 at 11:46am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – exceptional circumstances – family assistance – carer for grandchildren – unexpected pregnancy of daughter-in-law – medical issues – not granting visa would cause significant hardship to Australian – credible witness – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 137L
Migration Regulations (Cth) 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 17 January 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 3 January 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).

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.215. The delegate noted that cl.600.215 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 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, Mrs Esther Kehinde Owoeye appeared before the Tribunal on 21 November 2019 at 9.30 am to give evidence and present arguments. The Tribunal also received oral evidence from the son of the applicant Mr Peter Owoeye. The Tribunal hearing was conducted with the assistance of an interpreter in the Yoruba and English languages.

6. The applicant was represented in relation to the review by her registered migration agent.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   BACKGROUND

8. The applicant is a 54 year old national of Nigeria who last arrived in Australia on 02 February 2018 as the holder of a FA-600 Visitor (Tourist Stream) visa which remains in effect until 30 January 2019. The applicant has remained in Australia continuously since 02 February 2018. The applicant has made this application on 3 January 2019 requesting a further stay until 30 December 2019 which would result in the applicant being authorised to remain in Australia for a total period exceeding 12 consecutive months.

9. To satisfy the requirements for the grant of a visitor visa, the applicant is required to demonstrate that exceptional circumstances exist for grant of the visa. The applicant has stated their reasons for further stay are “To support my daughter in-law and son who is expecting a baby in July 2019. She currently suffers severe pregnancy symptoms resulting in several hospital admissions. I also intend to look after my 15 months old grandson in this time. I believe this will be of tremendous help to them.”

10. In support of this applicant the following documents were provided to the Department :

    ·      Copy of applicant’s vaccination records

    ·     Copy of applicant’s passport

    ·     Statutory declaration of applicant’s son Mr Temidayo Peter Owoeye

    ·     Medical certificate from Belconnen Mall Medical Centre

    ·     Commonwealth bank statement of Mr T P Owoeye

11. In support of this applicant the following documents were provided to the Tribunal :

    ·      Copy of applicant’s vaccination records

    ·     Medical history reports of Mrs Funmi Osituyo

    ·     Written statement by Representative Mr Isaiah Okorie

    ·     Copy of applicant’s passport

    ·     Statutory Declaration of age document by Mr Owoeye Peter Akinbode.

    ·     Birth Certificate of Jamkwamo Horpjos

    ·     Commonwealth bank transaction listing of Mr TP Owoeye

    ·     Written statement ‘Evidence of planned tourist activities’ by applicant   

    ·     Invitation letter by Temidayo Peter Owoeye

    ·     Statutory declaration by Funmi Celestina Osituyo

    ·     Statutory declaration by Temidayo Peter Owoeye

    ·     Birth certificate of Jessy Owoeye

    ·     Residential tenancy extension letter by Ken Siva

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

13. 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.

14. The Tribunal finds that the applicant entered Australia on 02 February 2018 as the holder of a FA-600 Visitor (Tourist Stream) visa which remains in effect until 30 January 2019. The applicant has remained in Australia continuously since 02 February 2018. The applicant has made this application on 3 January 2019 requesting a further stay until 30 December 2019 which would result in the applicant being authorised to remain in Australia for a total period exceeding 12 consecutive months.

15. 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.

16. The Tribunal considered the applicant's circumstances as presented to the Tribunal. The Tribunal accepts from the evidence provided that the applicant came to Australia initially to visit her son and daughter in law and their son born September 2017. She came to provide support and intended to depart Australia in January 2019. While the applicant was in Australia her daughter in law became pregnant with her second child. It was an unplanned pregnancy and was complicated by her preexisting medical condition of osteomyelitis as well as pregnancy related issues including hyperemesis gravidarium. Evidence was provided to corroborate these circumstances. The applicant stated in her application she wanted to be with her family to support them and to provide care for her young grandson as her daughter in law was unable to care for him due to the complications of her pregnancy.

17. 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.

18. 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.’

19. 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.

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

21. The applicant told the Tribunal her son and his family were still adjusting to the demands of their new family. Because she had stayed to assist them her son had been able to continue with his work to financially support his family.  There had been no other family members in Australia to provide support to the family and the Tribunal accepts the evidence of the applicant that she was especially needed to care for the child born in September 2017. It was for this purpose she was seeking an extension. She felt it was important that there be continuity of care given how young the child was and how incapacitated by her pregnancy her daughter in law was. Her evidence to the Tribunal was that she had been meeting all the care needs of the child. The Tribunal discussed with the applicant the purposes for which a visitor visa could be obtained and stressed that it was neither a carer’s visa nor pathway to a permanent visa.

22. The applicant told the Tribunal that she was booked to leave Australia on 27 January 2020. It was most important to her that she be granted the extension to her original visa so she and other members of her family would not be prevented from visiting her son and his family in the future. The Tribunal found the applicant and her son to be credible witnesses and accepts their evidence of their intention to abide by the conditions of their visa and also accepts that in this instance they made an application for an extension because of the compelling circumstances bought about by the unplanned pregnancy and the associated medical problems.

23. Taking into account all the evidence before it the Tribunal is satisfied that the circumstances of this case are exceptional in that the unexpected pregnancy of her daughter in law and the risks accompanying that pregnancy and the need for the child born in September 2017 to be cared for amount to exceptional circumstances in the sense of them being out of the ordinary or unusual. The enormity of the effect on the family of the unplanned pregnancy and accompanying medical issues could not be anticipated at the time of the original application. Not granting a visa would cause significant hardship to an Australian permanent resident i.e. the son and grandson of the applicant if she were to be separated from them at this time. The Tribunal is satisfied therefore that there are exceptional circumstances for the grant of the visa and that the requirements of cl 600.215 are met.

    DECISION

24. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl.600.215 of Schedule 2 to the Regulations.

    Moira Brophy
    Member