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

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).
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.
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 matter was listed on two occasions and those hearings were adjourned to allow the applicant to access assistance with her application.
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.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
BACKGROUND
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…

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 Panayi (Migration)

Details

AGLC: Panayi (Migration) [2019] AATA 5622
Case: [2019] AATA 5622
Decision Date: 26 November 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Visitor (Class FA) visa, Tourist stream, made by a national of the United Kingdom. The applicant sought to remain in Australia until 3 June 2019, which would result in a total consecutive stay exceeding 12 months. The applicant's stated reason for the extended stay was to assist her partner, who had significant medical issues and was receiving a pension from Centrelink.

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" exist for the grant of a visa if it would permit the applicant to remain in Australia for more than 12 consecutive months. The Tribunal was required to determine if the applicant's circumstances, specifically her desire to support her partner through his medical treatment, constituted exceptional circumstances as contemplated by the regulations.

The Tribunal interpreted "exceptional circumstances" according to its ordinary English meaning, referring to dictionary definitions and relevant case law, such as *An v Minister for Immigration and Citizenship* [2007] FCAFC 97, which described such circumstances as unusual or atypical. While acknowledging the applicant's stated intention to assist her partner and their cohabitation, the Tribunal concluded that these circumstances did not rise to the level of being unusual or extraordinary. The Tribunal found that the applicant's desire to support her partner, even with his medical condition, did not meet the threshold for exceptional circumstances required by clause 600.215.

Consequently, the Tribunal affirmed the decision not to grant the visa. The applicant failed to satisfy the criteria under clause 600.215, and therefore, the Tribunal concluded that the decision under review should be upheld.

Orders

Orders of the court

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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 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. 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.” 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. 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 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 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.

Evidence

Evidence Before The Court

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 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 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. 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. 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. 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. 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

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

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