Parohinog (Migration)

[2019] AATA 2494

Parohinog (Migration) [2019] AATA 2494 (22 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Roselyn Salavante Parohinog

CASE NUMBER:  1802766

HOME AFFAIRS REFERENCE(S):           BCC2018/113277

MEMBER:Mary Urquhart

DATE:22 May 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 22 May 2019 at 11:48am

CATCHWORDS

MIGRATION Visitor (Class FA) visa – subclass 600 (Visa) – Tourist stream– no exceptional circumstances in this case – applicant failed to attend hearing – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 362B

Migration Regulations 1994, Schedule 2, cls 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 12 January 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 8 January 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.600.211, which requires the visa applicant to satisfy the Minister that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

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. The delegate noted that the applicant has remained continuously in Australia since her last arrival on 8 January 2017.

5. On 18 February 201 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to her review application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 22 May 2019.

6. When the hearing invitation was sent it put the applicant on notice that if she failed to attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable her to appear before it.

7. On 22 May 20191 the applicant did not attend the hearing or contact the Tribunal to explain her failure to attend. In these circumstances, the Tribunal has decided, pursuant to s.362B of the Act, to make its decision on the review without taking any further action to enable the applicant to appear before it.

8. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is whether cl.600.215 is met and in particular whether there are exceptional circumstances in relation to the temporary visitor visa sought by the applicant. 

11. The application reveals that the applicant was born on 12 August 1977 and is a national of the Philippines. The applicant last entered Australia on 8 January 2017 as the holder of an FA600 Visitor visa. Since that date she has remained in Australia. The applicant made her current subclass 600 visa application on 8 January 2018.

12. In her application the applicant states the reason for a further visa as “we are getting married”. No other reasons were provided.

13. The applicant is applying for an extended stay which would allow her to remain in Australia for more than 12 consecutive months.

14. In order to satisfy the requirements for a further visa the applicant is required to show that exceptional circumstances exist for the grant of the visa.

15. The Tribunal has carefully considered whether in the available material there are any exceptional circumstances in the applicant's circumstances such as to authorize a stay for longer than 12 consecutive months.

16. The Tribunal notes that the term 'exceptional' is not defined in the legislation and therefore gives it the ordinary English meaning. The Macquarie Dictionary refers to 'exceptional' as 'forming an exception or unusual instance, unusual, extraordinary'.

17. 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.

18. 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.

19. 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 it is 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”.

20. 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:

    (a)could not have been anticipated at the time their visitor visa was granted and

    (b)is beyond the visa applicant's control and

    (c) where not granting a visa would cause significant hardship to an Australian resident or citizen.

21. The Tribunal has considered the reason given by the applicant for seeking the visa, being “we are getting married”. However as the applicant did not attend the hearing no further evidence in relation to her circumstances regarding this reason or any other reason  is before the Tribunal.

22. Taking into account the ordinary meaning of the words 'exceptional circumstances' and the decisions and PAM policy guidance above, the Tribunal is not satisfied that the applicant's circumstances amount to exceptional circumstance 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.

23.   Further, the Tribunal finds no evidence before it to suggest that there has been 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.

1. In the applicant's particular case, the Tribunal notes she has been the holder of a subclass 600 visa and a bridging visa A, which are visas specified in cl.600.215. 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.

2. As the Tribunal finds there are no exceptional circumstances in this case, cl.600.215 (1) is not met, and accordingly cl.600.215 is not met and the applicant is not eligible for the grant of the visa sought.

   DECISION

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

   Mary Urquhart
   Member