Taussik (Migration)

Taussik (Migration) [2020] AATA 5698 (10 September 2020)
Corrigendum
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Judy Taussik
CASE NUMBER:  1832947
DIBP REFERENCE(S):  BCC2018/4412894
MEMBER:Susan Trotter
DATE OF ORAL DECISION:  10 September 2020
DATE OF DECISION:  10 September 2020
DATE CORRIGENDUM
SIGNED:3 February 2021
PLACE OF DECISION:  Brisbane
AMENDMENT:  The following corrections are made to the decision:

1. Add the following phrase at the end of the last sentence of paragraph 17 (e)
“home is in the United Kingdom.”

Susan Trotter
Member
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Judy Taussik
CASE NUMBER:  1832947
DIBP REFERENCE(S):  BCC2018/4412894
MEMBER:Susan Trotter
DATE OF ORAL DECISION:  10 September 2020
TIME OF ORAL DECISION:  4:38 pm (QLD time)
DATE OF WRITTEN REASONS:              24 September 2020
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:
·cl.600.211 of Schedule 2 to the Regulations.
·cl.600.215 of Schedule 2 to the Regulations.

Statement made on 24 September 2020 at 8:13am
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Tourist stream – stay in Australia for more than 12 consecutive months – exceptional circumstances –medical conditions – additional risk of COVID-19 to elder persons –decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.215

CASES
An v Minister for Immigration and Citizenship [2007] FCAFC 97
G v MIBP [2018] FCA 1229
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 22 October 2018 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under s.65 of the Migration Act 1958 (the Act).
At the hearing on 10 September 2020, the Tribunal made an oral decision. The following are the written reasons for the decision.
STATEMENT OF REASONS
The applicant applied for the visa on 10 October 2018. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four 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 there are exceptional circumstances for the grant of the visa which would result in the applicant being authorised to stay in Australia for more than 12 consecutive months pursuant to certain types of visas. Additionally, cl.600.211 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.
The delegate refused to grant the visa on the basis that they were not satisfied that exceptional circumstances existed for grant of the visa.
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 9 November 2018.
The applicant appeared before the Tribunal on 10 September 2020 to give evidence and present arguments.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream.
Clause 600.215 requires the visa applicant to satisfy the Minister that there are exceptional circumstances for the grant of the visa which would result in the applicant being authorised to stay in Australia for more than 12 consecutive months pursuant to certain types of visas and
Additionally, cl 600.211 requires that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.
Clause 600.221 and cl.600.222 set out the purposes for which a visa in the Tourist stream may be granted.
In considering whether a visa applicant genuinely intends to stay temporarily in Australia for the stated purpose, cl.600.211(a) requires consideration of whether he or she has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa.
Clause 600.211(b) also requires consideration of whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject. The conditions to which a visa in the circumstances of this case would be subject are as follows:
·8101 – must not work in Australia
·8201 – must not engage in study or training in Australia for more than 3 months
·8503 – not entitled to a substantive visa, other than a protection visa, while remaining in Australia
·8531 – must not remain in Australia after end of permitted stay.
Clause 600.211(c) requires that consideration also be given to any other relevant matters. Department policy states that relevant consideration of any other matter may include, but is noted limited to:
·the personal circumstances of the applicant that would encourage them to return to their home country (country of usual residence) at the end of the proposed visit, such as:
·ongoing employment
·the presence of immediate family members in their home country – that is, does the applicant have more close family members living in their home country than in Australia
·property, or other significant assets, owned in their home country
·whether the applicant is currently residing in a country whose nationals represent a low risk of immigration non-compliance, even if the applicant is originally from a country whose nationals represent a statistically higher risk of non-compliance.
·the personal circumstances of the applicant in their home country or general conditions in the home country that might encourage them to remain in Australia, such as:
·economic circumstances – including unemployment or employment that, based on knowledge of local employment conditions (such as salary rates) would not constitute a strong incentive for the applicant to leave Australia
·economic disruption, including shortages, famine, or high levels of unemployment, or natural disasters in the applicant’s home country.
·the applicant’s personal ties to Australia, that is:
·does the applicant have more close family members living in Australia than in their home country
·is the applicant subject of adoption proceedings that have not been resolved in their home country
·military service commitments
·civil disruption, including war, lawlessness or political upheaval in the applicant’s home country.
·the applicant’s credibility in terms of character and conduct (for example, false and misleading information provided with visa application).
·whether the purpose and proposed duration of the applicant’s visit and their proposed activities in Australia are reasonable and consistent (for example, is the period of stay consistent with "tourism").
·previous immigration and travel history, such as:
·previous visa applications for Australia
·previous overseas travel, that is, has the applicant travelled to countries other than Australia.
In assessing this factor, officers may give weight to applicants who had travelled to and complied with the immigration laws of a country(ies) that has significant incentives for the applicant to remain in that country(ies), either for economic or personal reasons. However, officers may have to use judicious discretion if there is a lack of travel history.
·information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department about nationals from the applicant’s home country. Such information, including the Modified Non Return Rate (MNRR), which is published quarterly on the department’s website may assist officers in deciding whether closer examination of an application is required.
It follows that the issue to be determined by the Tribunal is whether The applicant intends to stay temporarily in Australia the purpose for which the visa is granted, having regard to:
(a)Will grant of the visa result in the applicant being authorised to stay in Australia for more than 12 consecutive months as the holder of one or more specified visas? And, if so,
(b)Are there exceptional circumstances for grant of the visa? And, if so,
(c)Has the applicant complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa?;
(d)Does the applicant intend to comply with the conditions to which the visa would be subject?; and
(e)Are there any other relevant matters?
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant’s evidence at hearing included as follows:
(a) She is a retired citizen of the United Kingdom with assets (including property in the United Kingdom which provides a rental income) and savings sufficient to support herself. She is 71 years of age[1]. She would like to return home but has a fear of flying during COVID-19.
(b) She last arrived in Australia. Her visa was granted in October 2016, but she did not come to Australia until June 2017. She was then told that she could extend the visa for another year and she extended until October 2018 and then applied for this visa. She did not understand the system. The application was refused, and she was given a bridging visa. The bridging visa conditions said, “No Travel” and she thought that meant she could not leave Australia until this application was finalised.
(c) Whilst awaiting this application result, she has had an ophthalmological check because of very sore eyes. Apparently because she has been wearing contact lenses for years, there has been serious erosion in her eyes. She has commenced treatment for the condition as evidenced by the optometrist’s letter provided to the Tribunal. Part of the treatment included having contact lenses made specially for her and trialling and adjusting them. She is already on her third version. She could possibly have the same treatment in the United Kingdom but now also has the additional complication that flying is not recommended for the condition – as is also covered in the optometrist’s letter (letter from Celia Bloxsom, Optometrist, dated 28 August 2020).
(d) She is a retired woman and has visited Australia several times on holidays. She has always complied with the conditions of her visas. She previously only visited for short visits but stayed longer when she last arrived. However, she has never wanted to, and has never sought to, stay in Australia permanently.
(e) If COVID-19 was over and her eye treatment was finalised, she would be wanting to return to the United Kingdom, including to see her brother. In the meantime, she has remained in Australia and has been volunteering at the Gold Coast University Hospital. She would continue to seek to visit Australia in the future because she enjoys her time here but her
Issue 1 - Will grant of the visa result in the applicant being authorised to stay in Australia for more than 12 consecutive months as the holder of one or more specified visas?
[1] The Tribunal observes that the applicant has turned 72 between the date of the Tribunal’s oral decision and the date of these written reasons for decision.
It is not in dispute that the grant of the visa will result in the applicant being authorised to stay in Australia for more than 12 consecutive months as the holder of one or more specified visas.
Issue 2 - Are there exceptional circumstances for grant of the visa?
The term “exceptional circumstances” is not defined in the Act. With reference to the Macquarie Dictionary, “exceptional” is defined to mean “forming an exception or unusual instance; unusual; extraordinary”.
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 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:
o    could not have been anticipated at the time their visitor visa was granted and
o    is beyond the visa applicant’s control and
o    where not granting a visa would cause significant hardship to an Australian resident or citizen.
The Tribunal is not bound by policy. However, in the recent case of G v MIBP [2018] FCA 1229, the Federal Court observed that it is clear from earlier authorities[2], that in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to take into account in performing its review task.
[2] Drake and Minister for Immigration and Ethnic Affairs [1979] 24 ALR 577 and Minister for Immigration, Local Government and Ethnic Affairs v Gray [1994] 50 FCR 189
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.
Neither of the circumstances suggested by PAM3 are applicable to the applicant. However, the Tribunal is not limited to considering only those matters suggested by policy and also considered other matters relevant to the applicant’s circumstances.
The Tribunal recognises the impact of the COVID-19 pandemic on the world including the understandable concerns that an applicant might have to undertake international air travel. The Tribunal is not satisfied that that circumstance of itself constitutes exceptional circumstances for grant of the visa.
Other circumstances of relevance include:
(a) the applicant’s age, particularly as regards the widely accepted additional risk of COVID-19 to elder persons;
(b) the applicant’s genuinely held understanding, albeit incorrect, that the bridging visa she held did not enable her to travel;
(c) the adverse impact of long flights upon the applicant’s current medical condition and treatment as corroborated by medical evidence before the Tribunal.
The Tribunal observes that it might be considered that the applicant’s stated misunderstanding of the conditions of her bridging visa might be considered disingenuous. The Tribunal discussed this matter at length with the applicant at hearing, including that the stated ‘No Travel’ condition means only that she could not travel outside Australia and return to Australia on the bridging visa that she held, but that she at all times could have departed Australia or sought a different type of bridging visa or different conditions on her bridging visa (as was set out in the documentation from the Department advising her of grant of the bridging visa). Having canvassed this matter fully with the applicant at hearing, the Tribunal accepts that the applicant genuinely, albeit mistakenly, believed she could not travel on the bridging visa.
Having taken into account all of the applicant’s circumstances cumulatively, the Tribunal is satisfied that the circumstances of the applicant are out of the ordinary and unusual and set the applicant apart from other persons in a comparable situation such that they amount to exceptional circumstances.
Issue 3 - Has the applicant complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa?
There is no evidence before the Tribunal that the applicant has breached any conditions of any visas held by her in Australia.
Issue 4 - Does the applicant intend to comply with the conditions to which the visa would be subject?
The conditions to which a visa in the circumstances of this case would be subject are as follows:
·8101 – must not work in Australia
·8201 – must not engage in study or training in Australia for more than 3 months
The Tribunal is satisfied that the applicant does not intend to not engage in work in Australia, nor engage in study or training in Australia for more than 3 months.
The Tribunal observes that the applicant commendably engages in voluntary work for the Gold Coast University hospital however that is not work of the nature relevant to condition 8101.
The Tribunal is satisfied that the applicant intends to comply with the conditions to which the visa would be subject.
Issue 5 - Are there any other relevant matters?
The Tribunal has also considered all other relevant matters (cl.600.211(c)), including, where relevant, those referred to in Departmental policy.
Notably, the applicant’s personal circumstances in her home country include the holding of significant assets and the presence of her only family member, her brother. Whilst the applicant will undoubtedly have made close personal ties to Australia during her time here, the Tribunal considers her personal circumstances in her home country would encourage the applicant’s ultimately return to her home country.
Notably, the applicant is not from a country whose nationals represent a low risk of immigration non-compliance. Further, the Tribunal considers the credibility in terms of character and conduct beyond reproach.
Notably, whilst the applicant is now seeking and undertaking medical treatment in Australia, that has only arisen ancillary to the applicant’s initial, and continued proposed activities which the Tribunal considers are reasonable and consistent with the purpose of visiting Australia as a tourist and not for seeking medical treatment.
Conclusion

For the reasons canvassed, having had regard to all of the above matters, the Tribunal is satisfied that that there are exceptional circumstances for the grant of the visa and that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.
It follows that cl.600.211 and 600.215 are met.
decision
The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:
·cl.600.211 of Schedule 2 to the Regulations.
·cl.600.215 of Schedule 2 to the Regulations.
Susan Trotter
Member

[2020] AATA 5698

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Intention

Natural Justice