Spinoccia (Migration)

[2019] AATA 1074

Spinoccia (Migration) [2019] AATA 1074 (8 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Angelina Spinoccia

CASE NUMBER:  1729061

HOME AFFAIRS REFERENCE(S):           BCC2017/3954718

MEMBER:Mary Urquhart

DATE:8 March 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 08 March 2019 at 3:19pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – in Australia for more than 12 consecutive months – exceptional circumstances required – medical conditions – no one to look after applicant in Italy – spend time with daughter 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 3 November 2017 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 23 October 2017. 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. Clause 600.215(1) requires there to be exceptional circumstances in existence as a condition to the grant of the visa.

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 20 November 2016.

5. The applicant appeared before the Tribunal on 7 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Lucia Russo and Dr Vic Buccheri by telephone from his medical practice in Melbourne. The Tribunal hearing was conducted with the assistance of an interpreter in the Italian and English languages.

6. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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. 

9. The applicant was born on 6 November 1936.  She is the holder of an Italian passport. 

10. The applicant first entered Australia on 20 November 2016 having travelled here with her daughter, Ms Lucia Russo (b.2 August 1969). The applicant held a TV651 Visitor visa allowing for a temporary stay. Her daughter Lucia also arrived on a temporary stay visitor visa.  The applicant has been in Australia since then. Ms Russo gave evidence that after she and her mother arrived on their Visitor visas she sought to change her status and is now on a student visa as a dependent of her husband.

11. The applicant in her application states she  wishes to extend her stay as her health is fragile and she would like to spend more time with her daughter “who is living here”.

12. At the hearing the Tribunal explained the temporary nature of the Tourist visitor visa scheme and that it had to consider whether the granting of a further visitor visa would result in the applicant being in Australia for more than 12 consecutive months.

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

14. The applicant has been in Australia since November 2016. She initially came in the company of her only daughter with whom she was previously living in Piedmont, in the north of Italy. She said she has two married sons in Italy, one of whom has two children. They reside in the south, in Sicily. The applicant told the Tribunal that her sons are not interested in her living with them and that they do not care for her. She moved to be with her daughter some years ago. Her husband passed away before she came to Australia in 2016. The evidence is that the applicant’s daughter’s husband had come to Australia in 2014 on a student visa.

15. The applicant told the Tribunal she came to Australia with her daughter because her daughter was coming here and she could not remain in Italy or stay back on her own. Asked what her intention was in coming to Australia, she replied to remain with her daughter in Australia until death. She told the Tribunal that when her husband died she had him cremated and that she had carried his ashes with her to Australia.

16. The applicant’s daughter gave evidence that she works at a business owned by Mr Claudio Botte called Pantry Fresh which sells eggs, chickens and Italian small goods. She said her husband also works in the business but that his work is at the farm that supplies the eggs. In other evidence she further explained that she and her husband have a business in partnership with another person. The business is engaged in catering, supply of party food and pizza. The Tribunal formed a view that the applicant’s son in law and daughter are quite settled in Australia.

17. The Tribunal questioned the applicant carefully about her health prior to arrival in Australia.

18. The evidence is that prior to coming to Australia the applicant had been unwell. She said both she and her husband were unwell and needed their daughter Lucia to look after them. Asked what medical conditions she suffered from the applicant replied that she had illnesses to do with her lungs and that she had problems breathing. As well she said her heart beats fast. She said she now suffers with a back problem and can neither stay standing or lying in bed. The applicant gave evidence that she is required to take medication to “calm” her pain.  She said the pain is always there.

19. The applicant’s daughter gave evidence regarding the applicant’s trip out to Australia. She said she organized for her mother to have oxygen; they had an overnight stop over to rest and her mother was given blood thinning injections prior to the flight.

20. Dr Vic Buccheri is the applicant’s doctor in Melbourne. Asked when she first consulted Dr Buccheri the applicant replied that she went to him “almost immediately”, within a month. She said she needed to renew her medication from Italy. She said she now sees him every month and he checks her health.

21. The parties claim that after her arrival in Australia the applicant’s medical conditions deteriorated and she developed back problems. The Tribunal formed the view that the applicant’s current medical conditions existed when she arrived in Australia save for her back pain and some deterioration.

22. The Tribunal has very carefully considered the medical evidence before it provided by Dr Vic Bucceri. Dated 7 February 2019; Dr Martin MacDonald dated 6 December 2018 and the document from the Department of Health and human services regarding a permit for the administration of the drugs Tapentadol and Oxycodone valid until 13 August 2020.

23. The Tribunal has taken evidence from Dr Bucceri. Dr Bucceri confirmed the applicant’s medical conditions including that she had suffered with a bronchial-pulmonary disease prior to coming to Australia. He said he had received medical notes from her treating doctor in Italy. He said he was not aware of the arrangement made for the applicant to travel from Italy to Australia. Asked his opinion as to what would make it possible for the applicant to return home Dr Bucceri said it was not possible as the applicant had nobody to look after her; he said her daughter is here. He said she has no other carer and her daughter was doing a fantastic job.  Dr Bucceri gave his opinion that it would be “unwise” for the applicant to travel home as her conditions had deteriorated since her arrival. Asked if treatment of her conditions would be available in Italy the response was that they would be available. Asked his opinion regarding any measures that could be taken to assist the applicant to return home Dr Bucceri responded, reiterating his evidence that there was no one to support the applicant in Italy, saying she would require a stretcher and he did not think that was practical.

24. Whilst the evidence of Dr Buccheri is that it would be unwise for the applicant to travel and that she may require a stretcher the documentation provided does not state that the applicant is gravely or acutely ill or receiving intensive or critical care. Clear evidence was given as to aides assisting the applicant to make the journey to Australia and there is no evidence that she could not be provided with support, including stretchering if required, to return home.

25. The Tribunal has carefully considered the applicant's circumstances and in particular the claims that though she has two married sons in Italy that there is no one to look after her there.

26. The applicant’s daughter supported the claim that the applicant’s sons would not look after her and said her mother had been living with her prior to both their arrivals in Australia together in November 2016. There is no direct or independent evidence to support the claim that the applicant’s sons would not care for the applicant. The Tribunal did not find the applicant or her daughter to be reliable witnesses in their evidence regarding the applicant’s circumstances at home. The Tribunal does not accept that there is no one in Italy who the applicant could stay with on return.

27. The Tribunal acknowledges the evidence regarding the applicant’s age and fragile health, however on the basis of all the evidence the Tribunal finds it is the applicant’s wish to remain in Australia and that she has intended to do so from the time of her arrival.

28. 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 Subclass 600 visa and a bridging visa, which are visas specified in cl.600.215.

29. The visa extension is for a visitor visa, such visas are for a temporary further stay only, and the criteria require exceptional circumstances for renewal.

30. 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'.

31. 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.

32. 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.

33. 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:

    ·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.

34. The Tribunal accepts the medical evidence that there has been some deterioration in the applicant’s health however the Tribunal finds no evidence to suggest that such circumstance could not have been anticipated.

35. Taking into account the ordinary meaning of the words “exceptional circumstances” and the decisions and PAM3 policy guidance above, the Tribunal is not satisfied that the applicant's circumstances amount to exceptional circumstance in the sense being unique, out of the ordinary or unusual. The Tribunal does not consider that the evidence satisfies the circumstances identified in the Department's policy. Further, the Tribunal is not satisfied that there is evidence before it suggesting that there has been such 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.

36. The Tribunal is not satisfied that the applicant's wish to remain in Australia with her daughter and that her needs as a result of her fragile health and age “forms an exception”, or are “extraordinary” or “unusual’. The Tribunal finds that the applicant wishes to stay permanently in Australia. And, as noted at hearing, other visas may be more appropriate for this applicant.

37. For the above reasons the Tribunal finds that the grant of the visa sought by the applicant in this case 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.

38. Having considered all the evidence in this case, the Tribunal is not satisfied that exceptional circumstances exist. As cl.600.215(2) applies, cl.600.215(1) must be satisfied.

39. 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.

    Ministerial Intervention Under Sections 351, 417 And 501j Of The Migration Act 1958

40. The issue of Ministerial intervention was discussed at the hearing and the applicant’s representative requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to section 351 of the Act.

41. Whilst the Tribunal has found there are no exceptional circumstances to authorize a further stay the Tribunal notes the Ministerial guidelines refer to “Compassionate circumstances” regarding the age and/or health and/or psychological state of the person that if not recognized would result in harm and continuing hardship to the person and for this reason the Minister at his discretion may consider any request.

42. However, the Tribunal after careful consideration of the applicant’s request that the Tribunal refer this matter to the Minister respectfully declines to do so. In so declining the Tribunal notes that it is open to the applicant herself to approach the Minister and seek Ministerial Intervention for a more favourable outcome in her case. Such intervention is entirely a matter for the Minister and would be entirely at the Minister’s discretion.

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

    Mary Urquhart
    Member