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

1. 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).

2. 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.

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 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.

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

   BACKGROUND

7. 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.

8. On 23 February 2018 the applicant applied for a Contributory Parent (Temp)(UT 173) (Offshore) visa, sponsored by her son, Raveen Seshan Ranasingha Senanayake.

9. 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 application

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

11. 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.

12. The Tribunal finds that the applicant entered Australia on 9 March 2017 as the holder of a subclass FA600 Visitor-Tourist Stream visa. It ceased to be in effect on 30 August 2017. The applicant applied for and was granted a Visitor (Class FA) on 30 August 2017 which ceased on 9 March 2018. The applicant made her current subclass 600 visa application on 6 March 2018 and was granted a bridging visa A in association with that visa application.

13. 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.

14. The Tribunal considered the applicant's circumstances as presented to the Tribunal.

15. 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.

16. 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.’

17. 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.

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

19. The applicant has submitted that she wishes to remain in Australia to be with her son. Her parents and two sisters are living in Sri Lanka. She has previously visited Australia in 2008, 2010, 2012 and 2015 and on those occasions she had complied with the terms of the visa she had been granted. She provided evidence that she was self-funded and that her accommodation needs were being met by her sister. Her son was sponsoring her in her application.

20. It was submitted there was no evidence of character issues or outstanding debts to the Commonwealth.

21. It was submitted the applicant and her son enjoyed a particularly close relationship due to the fact the applicant was a sole parent for much of her son’s childhood. It was further submitted her son would face significant hardship without the assistance, support and affection of his mother and she needed to be physically present to provide that. He was studying at the University of Sydney and since he was on a scholarship he needed to maintain his grade average to retain his scholarship. If his mother were forced to leave it could have a detrimental impact on his studies.

22. Whilst the Tribunal was mindful of the applicant’s wish to remain in Australia to ensure her son retained her support and affection which would assist him in his studies the Tribunal was also mindful that her visa had previously been extended for this purpose and that there was no real change in the situation since that last extension had been granted. The Tribunal was also mindful the applicant did not have to remain in Australia to support her son. With electronic communication devices she could remain in close contact with him and support him that way.  The Tribunal was not satisfied the circumstances as relied on by the applicant were exceptional circumstances for the grant of the visa.

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

    DECISION

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

    Moira Brophy
    Member