Panayi (Migration)

[2019] AATA 5622

Panayi (Migration) [2019] AATA 5622 (26 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Nicola Randi Panayi

CASE NUMBER:  1820670

HOME AFFAIRS REFERENCE(S):          BCC2018/2385486

MEMBER:Moira Brophy

DATE:26 November 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 28 November 2019 at 12:13pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – exceptional circumstances for grant of visa allowing applicant to stay in Australia for more than 12 consecutive months – applicant wishes to stay to assist partner with medical issues – no exceptional circumstances – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 137L
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 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 25 June 2018 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 June 2018. 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 matter was listed on two occasions and those hearings were adjourned to allow the applicant to access assistance with her application.

6. The applicant, Ms Nicola Randi Panayi 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 applicant’s partner Mr Warren Lee.

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

   BACKGROUND

8. The applicant is a 34 year old national of United Kingdom who last arrived in Australia on 3 June 2017 as the holder of a TZ-417 Working Holiday Visa which was valid till 3 June 2018. On 3 June 2018 the applicant has made subsequent application for a FA600 Visitor- Tourist Stream visa. The applicant has requested a further stay until 3 June 2019 which would result in the applicant staying 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 provided a statement in which they declared “I have attached a document from my partner Warren Patrick Lee detailing the exceptional circumstances for your consideration.” The applicant further stated “The close personal relationship that has developed between Warren Patrick Lee and myself was indeed unforeseeable.” In the document provided by the applicant’s partner, they stated “There are other extenuating circumstances concerning my personal health that your Department may consider. Due to an accident I have injured my Spinal Column and vertebral discs. The condition is permanent and affects my ability to work and that is why I receive a pension from Centrelink. Nicola has been helping me in many ways since we have commenced a relationship.”

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

    ·     Written statement from applicant.

    ·     Support letter from Warren Patrick Lee.

    ·     Letter from Cobowra Local Aboriginal Land Council certifying Aboriginality for Warren Patrick Lee.

    ·     Relationship certificate of applicant.

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

    ·Copy of applicant’s National Australia Bank (NAB) statement.

    ·Copy of Mr Warren P Lee’s Centrelink Income statement.

    ·Written statements from applicant and Mr Warren Lee.

    ·Documents relating to Mr Warren Lee’s medical condition, history and ongoing treatment.

    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 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.

14. The applicant last arrived in Australia on 3 June 2017 on a TZ-417 Working Holiday Visa which was valid till 3 June 2018. On 3 June 2018 the applicant has made a subsequent application for a FA600 Visitor- Tourist Stream visa. The applicant has requested a further stay until 3 June 2019 which would result in the applicant staying in Australia for a total period exceeding 12 consecutive months. The applicant was granted a bridging visa A in association with that visa application.

15. 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.

16. 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 partner who has a number of health issues. The Tribunal accepts from the evidence of the applicant that she and her partner have been living together at the War Memorial Hospital at Waverley since June 2019. They are able to stay there while Mr Lee is receiving medical treatment.

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 Mr Lee has a long standing disability from an accident he had ten years ago. His condition had been stable until he fell from a gutter in mid 2018. The injuries he suffered from that fall took a while to manifest themselves. At first it was an injury to his ankle but it worked its way up to his neck. His pre-existing conditions were exacerbated by the injuries he sustained in the fall.

22. At the time of application the applicant stated she wished to remain in Australia until 3 June 2019. She said she now needed to stay beyond that time to help her partner as his needs for assistance were ongoing. She stated she was self-funded in that her partner was in receipt of a disability support pension from Centrelink. They were presently assisted during their stay at Waverley by the Isolated Travel Assistance Scheme. If she was able to stay and support Mr Lee he would be able to resume working and their financial position would improve.

23. 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 partner with his health problems. When the Tribunal asked Mr Lee about his health problems he said he had been injured in an accident ten years ago. He had ongoing problems but they were manageable and he had been able to work. He had met the applicant when they were both in Young fruit picking. While there he had a fall. The gutter he had fallen from had been high and the fall had impacted his pre-existing injuries. The problem was compounded by the fact there were limited medical services in the Central West area. He had to come to Sydney to go to Westmead where he had earlier been treated for his advanced degenerative disc disease. He had also exacerbated this problem four months ago when he had turned his head which caused a sharp pain in his neck. He said the culmination of these injuries was that his life was now a medical drama and he was not able to work. He has to attend up to three medical appointments each week. He is currently seeing a pain specialist, a rheumatologist and a psychologist. He also attends physiotherapy at the Prince of Wales Hospital. Mr Lee said the applicant was now his carer. Their relationship had changed and they were intending to lodge a claim for a carer’s visa. The applicant said it was particularly important for her partner to minimise his stress levels and that was hard if she had to leave and he was forced to be on his own.  

24. The Tribunal accepts the medical evidence as to Mr Lee’s impairments and his need for ongoing treatment. Whilst the Tribunal was mindful of the applicant’s wish to remain in Australia to assist her partner while he was undergoing medical treatment the Tribunal was also mindful that a visitor visa was a temporary visa. It was not a pathway to a permanent visa and given the evidence of the parties as to their intention to apply for a permanent visa to allow the applicant to stay in Australia on a more permanent basis the Tribunal was not satisfied it could make a finding that the applicant was able to satisfy the requirements of cl.600.211.

25. The Tribunal accepts from the evidence of the applicant that she was age precluded from applying for a further 417 visa. While the Tribunal was empathetic to the applicant’s wishes to remain in Australia to assist her partner with his ongoing medical issues and to be involved in his day to day care Tribunal was not satisfied the circumstances as relied on by the applicant were exceptional circumstances for the grant of the visa she had applied for.

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

    DECISION

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

    Moira Brophy
    Member