Senanayake Mudiyanselage (Migration) - [2019] AATA 5383

Senanayake Mudiyanselage (Migration) [2019] AATA 5383 (15 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Uthpala Senanayake Senanayake Mudiyanselage
CASE NUMBER:  1807805
HOME AFFAIRS REFERENCE(S):          BCC2018/906532
MEMBER:Moira Brophy
DATE:15 August 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 15 August 2019 at 12:18pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – onshore for more than 12 consecutive months – exceptional circumstances – support for son who is studying in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 6 March 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 26 February 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 applicant did not appear at the appointed time for hearing and the Tribunal has considered her application on the papers from the documents provided prior to hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
BACKGROUND
The applicant is a 47 year old national of Sri Lanka. The applicant last arrived in Australia on 25th January 2016 as the holder of a FA600 Visitor- Tourist Stream visa. While onshore she also applied for and was granted a TU 500 student visa and two subsequent subclass 600 visitor visas, the last of which ceased on 1 March 2018. The applicant has remained onshore for 763 days.
On 23 February 2018 the applicant applied for a Contributory Parent (Temp)(UT 173) (Offshore) visa, sponsored by her son, Raveen Seshan Ranasingha Senanayake.
On 26th February 2018 the applicant lodged a…

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.

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Details

AGLC: Senanayake Mudiyanselage (Migration) [2019] AATA 5383
Case: [2019] AATA 5383
Decision Date: 15 August 2019

CaseChat Overview and Summary

This matter concerned an application for review of a decision not to grant a Visitor (Class FA) visa, Tourist stream, to a national of Sri Lanka. The applicant had been onshore in Australia for 763 days, having previously held a Visitor visa, a student visa, and two subsequent Visitor visas. She had lodged a further onshore application for a Visitor visa, seeking to remain in Australia until 31 December 2018, while also awaiting a decision on a Contributory Parent (Temporary) visa application sponsored by her son, who is a permanent resident of Australia.

The primary legal issue before the Tribunal was whether the applicant met the criteria under clause 600.215 of the Migration Regulations 1994. This clause pertains to the grant of a visa where the applicant would be authorised to remain in Australia for a total period exceeding 12 consecutive months, and requires the existence of exceptional circumstances to justify such a grant.

The Tribunal considered the evidence provided, including financial statements, employment records, and academic achievements of the applicant's son, as well as documents relating to the applicant's personal circumstances. However, the Tribunal concluded that the circumstances presented did not meet the threshold of "exceptional circumstances" as required by clause 600.215. Consequently, the Tribunal found that the requirements of clause 600.215 were not met.

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

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 47 year old national of Sri Lanka. The applicant last arrived in Australia on 25th January 2016 as the holder of a FA600 Visitor- Tourist Stream visa. While onshore she also applied for and was granted a TU 500 student visa and two subsequent subclass 600 visitor visas, the last of which ceased on 1 March 2018. The applicant has remained onshore for 763 days. On 23 February 2018 the applicant applied for a Contributory Parent (Temp)(UT 173) (Offshore) visa, sponsored by her son, Raveen Seshan Ranasingha Senanayake. On 26th February 2018 the applicant lodged a third onshore application for a FA600 Visitor- Tourist Stream visa, requesting a further stay until 31st December 2018. She has stated her reasons for further stay are “To stay with my only family my son who is a permanent resident and I have submitted my application through a migration agent for Contributory Parent Visa (Temporary) sub class 173 on 15th Feb and waiting decision”.· In support of this review the following documents were provided to the Tribunal:· Statement of accounts for the Central bank of Sri Lanka in the applicants name · 2 x Payslips for Senanayake M Kahawita· Screenshot of Commbank account balance in the applicants name· 2 x Payslips for Raveen Senanayake· The applicants marriage certificate · Copies of the applicant & her sons passport biodata pages· Commonwealth bank confirmation of details for Mr Raveen Senanayake· Invitation to the talented students program at USYD for Mr Raveen Senanayake· English translation of court documents from 2007 relating to the custody of Mr Raveen Senanayake· Copy of the applicants passport, including travel pages· AH 101 visa grant notification for Mr Raveen Senanayake· Passport biodata page for Ms Senanayake Mudiyanselage Apsara Kahawita· Statement of joint bank account balance with Sampath Vishwa Bank · Statement of service confirming Raveen Senanayake’s employment with Myer Macquarie · Offer of Admission to University of Sydney for Mr Raveen Senanayake· Statement of service confirming Ms Senanayake Mudiyanselage Apsara Kahawita employment with NSW Health · Tax assessment for Ms Senanayake Mudiyanselage Apsara Kahawita· Birth certificate for Ms Senanayake Mudiyanselage Apsara Kahawita· Australian citizenship certificate for Ms Senanayake Mudiyanselage Apsara Kahawita· Rates bill from Hornsby shire Council for Mr R G Kawahita and Mrs S M A Kawahita· English translation of a birth certificate for Mr Raveen Seshan Ranasingha Senanayake.· Certificate from Gateway College for Mr Raveen Seshan Ranasingha Senanayake· Letter of support from Mr Raveen Seshan Ranasingha Senanayake· Statement of appeal written by review applicant· 2015 future leader award from Gateway College for Mr Raveen Seshan Ranasingha Senanayake· Certificate of High achievement from Gateway College for Mr Raveen Seshan Ranasingha Senanayake· 2014 Model United Nation Honorary Mention for Mr Raveen Seshan Ranasingha Senanayake· Teen Onstage Band Award for Mr Raveen Seshan Ranasingha Senanayake· 2015 Model United Nation Honorary Mention for Mr Raveen Seshan Ranasingha Senanayake· Course results from University of Sydney for Mr Raveen Seshan Ranasingha Senanayake· Letter from applicants representative, Surekha Kalpage, in support of applicationCONSIDERATION OF CLAIMS AND EVIDENCE

Evidence

Evidence Before The Court

On 26th February 2018 the applicant lodged a third onshore application for a FA600 Visitor- Tourist Stream visa, requesting a further stay until 31st December 2018. She has stated her reasons for further stay are “To stay with my only family my son who is a permanent resident and I have submitted my application through a migration agent for Contributory Parent Visa (Temporary) sub class 173 on 15th Feb and waiting decision”.· In support of this review the following documents were provided to the Tribunal:· Statement of accounts for the Central bank of Sri Lanka in the applicants name · 2 x Payslips for Senanayake M Kahawita· Screenshot of Commbank account balance in the applicants name· 2 x Payslips for Raveen Senanayake· The applicants marriage certificate · Copies of the applicant & her sons passport biodata pages· Commonwealth bank confirmation of details for Mr Raveen Senanayake· Invitation to the talented students program at USYD for Mr Raveen Senanayake· English translation of court documents from 2007 relating to the custody of Mr Raveen Senanayake· Copy of the applicants passport, including travel pages· AH 101 visa grant notification for Mr Raveen Senanayake· Passport biodata page for Ms Senanayake Mudiyanselage Apsara Kahawita· Statement of joint bank account balance with Sampath Vishwa Bank · Statement of service confirming Raveen Senanayake’s employment with Myer Macquarie · Offer of Admission to University of Sydney for Mr Raveen Senanayake· Statement of service confirming Ms Senanayake Mudiyanselage Apsara Kahawita employment with NSW Health · Tax assessment for Ms Senanayake Mudiyanselage Apsara Kahawita· Birth certificate for Ms Senanayake Mudiyanselage Apsara Kahawita· Australian citizenship certificate for Ms Senanayake Mudiyanselage Apsara Kahawita· Rates bill from Hornsby shire Council for Mr R G Kawahita and Mrs S M A Kawahita· English translation of a birth certificate for Mr Raveen Seshan Ranasingha Senanayake.· Certificate from Gateway College for Mr Raveen Seshan Ranasingha Senanayake· Letter of support from Mr Raveen Seshan Ranasingha Senanayake· Statement of appeal written by review applicant· 2015 future leader award from Gateway College for Mr Raveen Seshan Ranasingha Senanayake· Certificate of High achievement from Gateway College for Mr Raveen Seshan Ranasingha Senanayake· 2014 Model United Nation Honorary Mention for Mr Raveen Seshan Ranasingha Senanayake· Teen Onstage Band Award for Mr Raveen Seshan Ranasingha Senanayake· 2015 Model United Nation Honorary Mention for Mr Raveen Seshan Ranasingha Senanayake· Course results from University of Sydney for Mr Raveen Seshan Ranasingha Senanayake· Letter from applicants representative, Surekha Kalpage, in support of applicationCONSIDERATION 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 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.

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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