Wiley (Migration)

[2019] AATA 2349

Wiley (Migration) [2019] AATA 2349 (17 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Byron Wiley

CASE NUMBER:  1727097

HOME AFFAIRS REFERENCE(S):           BCC2017/3742196

MEMBER:Stavros Georgiadis

DATE:17 June 2019

PLACE OF DECISION:  Adelaide

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

Statement made on 17 June 2019 at 10:07am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – stay for more than 12 consecutive months – exceptional circumstances – family reasons – presence of daughter in Australia – estranged from child’s mother – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.215

CASES
Hatcher v Cohn [2004] FCA1548
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 13 October 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 12 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, 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.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.215 as the delegate was not satisfied that there were exceptional circumstances for the grant of the visa.

5. The applicant appeared before the Tribunal on 14 June 2019 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether cl.600.215 is met, which in turn requires a consideration of whether exceptional circumstances exist for the grant of the visa.

8. The evidence before the Tribunal is that the applicant last arrived in Australia on 13 October 2016 as the holder of a Class US subclass 462 (Work and Holiday) visa. The visa was granted on 5 October 2016 and valid to 13 October 2017. The applicant has remained in Australia continuously since his arrival in 2016.  He told the Tribunal that he first came to Australia in November 2013 to undertake work as a professional baseball player and has subsequently undertaken work in scrap metal, as a scaffolder, and presently as a driver of B-Double vehicles.

9. On 12 October 2017 the applicant applied for a Class FA Visitor (Tourist) Subclass 600 visa seeking a further stay in Australia of 3 months to 10 January 2018. The purpose of the visit set out in the application is stated: “still a lot of country I have yet to see and would like a chance to see everything here”.  The applicant explained to the Tribunal that has been in Australia since October 2016 and seeks to stay in Australia indefinitely for family reasons (which are discussed further below).

10. Based on the evidence before it, the Tribunal finds that the applicant has resided in Australia continuously since arriving on 13 October 2016 and that his Subclass 600 visa application would result in him (potentially) being authorised to stay in Australia for more than 12 consecutive months.

11. The provisions of cl.600.215 apply in circumstances where as a holder of a Subclass 462 (Work and Holiday) visa the grant of the Subclass 600 visa would result in the applicant being authorised to stay in Australia for a period of more than 12 consecutive months.

12. For the grant of the Subclass 600 (Visitor) visa which would result in the applicant residing in Australia for more than 12 months consecutively, the Tribunal must be satisfied that there are “exceptional circumstances” that exist for the grant of the visa. The term “exceptional circumstances” is not defined in the Act.  With reference to the Macquarie Dictionary, the ordinary meaning of “exceptional” is defined as “forming an exception or unusual instance; unusual; extraordinary”. 

13. Departmental policy contained within its Procedures Advice Manual (PAM) provides guidance on the interpretation of “exceptional circumstances”, although the Tribunal has exercised care in applying PAM3 such that it is not raised to the level of a legislative requirement. 

14. The concept of “exceptional” has been the subject of some judicial consideration by the Courts, with it being understood as meaning “unusual” or “atypical” or “out of the ordinary”. Walters J also considered the meaning of “exceptional circumstances” in the context of section 137L of the Act in Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 918. In particular, Walters J referred, with approval, to the comments of Kiefel J in Hatcher v Cohn [2004] FCA1548 in which Kiefel J stated that the term is one which may have a wide operation. Also, factors affecting a person and which set them apart from other persons in a comparable situation may amount to exceptional circumstances.

15. When asked about any exceptional circumstances in his particular case, the applicant submitted that there are exceptional circumstances relating to his family circumstances. When asked to elaborate, the applicant told the Tribunal that he was in a relationship with an Australian citizen and that they together had a child, a daughter, born on 7 November 2016. Since then the applicant has separated from his partner, the child’s mother. The applicant explained that his daughter required surgery the day following her birth and then again at age 4 months. The child is presently approximately two-and-a-half years of age.  When asked, the applicant explained there is no medical evidence to suggest the child is not able to travel in the future.

16. The Tribunal accepts the oral evidence that the applicant is estranged from the child’s mother and that there are no shared care arrangements in place for the care of the child - although they are engaged in mediation with Relationships Australia to attempt to resolve that matter. The applicant told the Tribunal that he is able to see his daughter during her scheduled medical appointments approximately 4 times per year.

17. The applicant seeks to remain in Australia on an ongoing basis to spend time with his daughter. This is understandable and many parents in this position would no doubt desire such a long term outcome.  However, this is inconsistent with the notion of a Subclass 600 (Visitor) visa for the purpose of temporary stay only in the Tourist stream and then to depart Australia at the end of the proposed visit.  The Tribunal notes the application for the proposed stay in the first instance was for a period of 3 months which has long since expired. 

18. Having considered all the circumstances, and having regard to all the evidence before it discussed, the Tribunal finds that the circumstances in this case do not have factors affecting the visa applicant which set him apart from other persons in a comparable situation, are out of the ordinary, unusual, or uncommon, and thereby amount to exceptional circumstances in a relevant way for the purposes of cl.600.215. Therefore, the applicant does no satisfy the “exceptional circumstances” Schedule 2 requirement to the Regulations in respect of the above.

19. For the above reasons the Tribunal is not satisfied that there are exceptional circumstances and finds that the requirements of mandatory clause 600.215 are not met.

20. Therefore, the Tribunal refuses the application for a Visitor (Class FA) visa.

21. The applicant may be able to explore alternative migration pathways specific to his family and work circumstances.  He continues presently with work engaged as a truck driver.

    DECISION

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

    Stavros Georgiadis
    Member