Wiley v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 210

Federal Circuit and Family Court of Australia

(DIVISION 2)

Wiley v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 210

File number(s):	ADG 253 of 2019
Judgment of:	JUDGE YOUNG
Date of judgment:	21 March 2023
Catchwords:	MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal to refuse the applicant a visitor visa – where the refusal was in fact a refusal to grant an extension on an existing visitor visa – where the applicant is a US citizen – where the applicant has a child in Australia – where the Tribunal was satisfied the applicant wanted to stay in Australia for his child – where the applicant claims the Tribunal committed jurisdictional error – where the Tribunal was satisfied there were no exceptional circumstances to warrant extending the applicant’s visitor visa – the application is dismissed with costs
Legislation:	Migration Act 1958 (Cth)
Division:	Division 2 General Federal Law
Number of paragraphs:	9
Date of hearing:	17 February 2023
Place:	Darwin
Counsel for the Applicant:	Self-represented litigant
Counsel for the Respondent:	Ms Sommers
Solicitor for the Respondent:	Australian Government Solicitor

ORDERS

ADG 253 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

BYRON WILEY

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

Respondent

order made by:	JUDGE YOUNG
DATE OF ORDER:	21 March 2023

THE COURT ORDERS THAT:

1.The name of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs be amended to the Minister for Immigration, Citizenship, and Multicultural Affairs.

2.The application be dismissed.

3.The applicant pay the costs of the first respondent with such costs to be taxed or agreed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT
Ex Tempore

Judge Young

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal made on 17 June 2019 to affirm a decision of the Minister’s delegate made on 13 October 2017 to refuse the applicant a visitor visa.  The refusal was, in fact, a refusal to grant an extension on an existing visitor visa.  The applicant, according to the Tribunal’s reasons – and I don’t have any other information about that –was granted a visitor visa initially on 5 October 2016 which was valid to 13 October 2017.  In other words, a year and eight days later.  The applicant sought an extension of that visa.  Initially, the extension sought was for three months to 10 January 2018. 

2. In the application for extension, which was, as I say, only for three months, the applicant initially said that he wanted to see some more of the country.  I might say, by way of background, that the applicant is a US citizen.  He appears to have first come to Australia to work as a professional baseball player but he subsequently found employment in various jobs as a scaffolder or truck driver and the like.  More relevantly, as the applicant explained to the Tribunal member, he had formed a relationship with an Australian woman and as a result of that relationship a child was born on 7 November 2016, a daughter.  I assume the mother and the child are both Australian citizens and I assume that they are both resident in Australia.

3. Mr Wiley’s daughter would now be almost six and a half years old and she lives with her mother.  The applicant told me that he has been engaged in proceedings in the Federal Circuit and Family Court of Australia relating to the arrangements for his daughter and that those proceedings have been on foot for some years.  There is no evidence before me about those proceedings.  The applicant has not filed any affidavit relating to the proceedings.  I do not have any detailed information from him by way of affidavit setting out exactly what the circumstances are.  It is perhaps unnecessary that I have that information.  It was certainly not before the Tribunal.

4. So I am dependent upon the information recorded in the Tribunal’s decision, and there is nothing to suggest that that is in any sense inaccurate; certainly nothing the applicant has said to me suggests that the information is inaccurate.  On the contrary, it suggests that the information is accurate. It would appear that the substantive reason for the applicant wishing to remain in Australia is to maintain or pursue his relationship with his six and a half year old daughter. 

5. As the proceeding referred to by the applicant is a proceeding in this court, it is apparent from a check of the court record that what the applicant has said about that proceeding is correct.  However, I do not have any more information from the applicant about the matters in dispute in those proceedings, what the evidence of the parties is, or any other matter. 

6. The Tribunal accepted the applicant’s evidence about those matters and accepted the evidence he gave about wanting to remain in Australia to pursue a relationship with his daughter.  At the time that the Tribunal considered the matter on 17 June 2019, the three-month extension initially sought by the applicant had been exceeded by about a year and eight months.  By the time the matter comes into this court, the period has been exceeded by somewhat in excess of five years.  It is apparent from all of that that the real remedy for the applicant lies elsewhere with another kind of visa. 

7. As the Tribunal appears to have concluded, in circumstances where the proposed length of the visa has been exceeded by a long period, and where the real purpose of the visa extension sought is to remain in Australia for a much longer period than a three-month extension, the Tribunal was satisfied that there were no exceptional circumstances to merit the extension of the period beyond the initial 12 months.  As the Tribunal points out, exceptional circumstances are not defined in the Act, though the Tribunal referred to case law to the effect that exceptional really carries its ordinary meaning of unusual or atypical or out of the ordinary. 

8. It appears to me that the Tribunal has referred to relevant considerations, has not referred to irrelevant considerations, and there is no indication before me that the Tribunal denied the applicant procedural fairness in any way. In particular, the allegation at Ground 1.8 of the application that procedural fairness required the Tribunal to give the applicant the opportunity to finalise care arrangements for his daughter is an allegation that I reject. 

9. While it is entirely understandable why the applicant would wish to extend his stay in Australia for as long as possible, I am not satisfied that the reasons he advanced for the grant of a visitor visa extension of three months are in any sense exceptional circumstances having regard to the context of the application for the extension and the period of the proposed extension.  It appears to me that, really, what the applicant was seeking was ill-suited to his real needs. I am not satisfied that there has been any jurisdictional error.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       21 March 2023