Wong (Migration)

[2018] AATA 1793

Wong (Migration) [2018] AATA 1793 (2 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Sai Ngan Linda Wong

CASE NUMBER:  1718816

DIBP REFERENCE(S):  BCC2017/2909587

MEMBER:Jane Marquard

DATE:2 May 2018

PLACE OF DECISION:  Sydney

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

Statement made on 02 May 2018 at 1:25pm

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Grandson’s mental health – Family circumstances – Psychologist report – Decision under review affirmed

LEGISLATION
Migration Act 1958, s
Migration Regulations 1994, Schedule 2 cls 600.211, 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 and Border Protection on 21 August 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 14 August 2017. 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.

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.600.211, which 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. Clause 600.215 requires that where the grant of the visa would result in the applicant staying consecutively in Australia for more than 12 months, there must be exceptional circumstances for the grant of the visa.

   EVIDENCE BEFORE DEPARTMENT AND DEPARTMENT’S DECISION

4. The applicant is from Hong Kong, China. Her husband has passed away and she has two sons living in China with their families. She works as a sales manager.

5. She provided reasons for her further stay until 27 August 2018 as ‘take care of my two grandsons when my daughter is on a business trip”.

6. In a telephone interview with the Department on 21 August 2017 the applicant asked her daughter Ms Pui Shi Nina Ng, to speak on her behalf. Ms Ng told the Department that she travelled frequently overseas on business, was divorced, and needed her mother to take care of her children. She has two twin boys aged 15. She works for a Hong Kong trading company and has more than 6 business trips a year, for 2 to 3 weeks at a time. She has no other family or friends who can take care of the children. The company is looking to open a Sydney office. She said that her mother had no health issues, or other exceptional circumstances. She also said that the children were in perfect health and there were no other special circumstances.

7. The delegate of the Department of Immigration and Border Protection (the Department) noted that the applicant had last arrived in Australia on 27 August 2016 as the holder of an UD-601 Visitor visa which ceased on 27 August 2017. She is currently the holder of a Bridging visa A granted in association with her FA 600 application. She has remained continuously in Australia since her last arrival on 27 August 2016. In her application for this visa the applicant stated her reasons for further stay as ‘take care of my two grandsons when my daughter is on a business trip’.

8. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.215. The delegate noted that cl.600.215 required that an applicant who applied for a subclass 600 (Visitor) visa in Australia, and for whom the grant of a further visa would result in that applicant staying in Australia consecutively for more than 12 months, had to demonstrate that exceptional circumstances existed for the grant of the visa. The delegate found that the applicant had not met the requirements of the mandatory clause 600.215 by demonstrating exceptional reasons for the grant of the visa.

   EVIDENCE BEFORE THE TRIBUNAL

9. The applicant submitted through her representative that there had been a change in an Australian resident’s circumstances. The applicant’s grandsons are Australian citizens, who grew up with their grandmother in Hong Kong, and rely on their grandmother. They arrived in Australia on 29 August 2016, a new environment without any friends. Their mother and grandmother were their whole world. Their grandmother would like to extend her visa to help them adapt to their new world. Their mother is a single mother who needs to go on business trips.

10. The applicant also submitted that not granting a visa would cause significant hardship to Australian residents. The grandsons feel sad and upset knowing their grandmother must leave.

11. The applicant provided three letters to the Tribunal, summarised below:

    ·    A letter from Joyce Woon Kum Chiu, Clinical Psychologist, Better Medicine Family Practice, dated 27 August 2017 stating that the applicant’s grandson (born 2003) had been referred to her for diagnostic assessment and therapy in May 2017 due to emotional and behavioural difficulties since he arrived in Sydney. She diagnosed him with ‘adjustment disorder’ with anxiety. With therapy, the intensity and severity of the symptoms had reduced significantly. However recently he had a relapse. Her view was that this related to his grandmother’s visa application. She has been his primary carer and he is very close to her. She has provided full time care to him emotionally and physically. The distress at her possible departure has caused clinical significant impairment in his social, academic and daily functioning. It was her view that he needed more time to develop strategies to manage his anxiety, and requested an extension for a view months;

    ·    A letter from Joyce Woon Kum Chiu, Clinical Psychologist, Better Medicine Family Practice, dated 18 March 2018 stating that she had been providing therapy to the grandson of the applicant over a period of time. She said that he had been diagnosed with adjustment disorder with anxiety in 2017. As he attended therapy, he improved. However as the time for his grandmother’s appeal is approaching, he has become anxious with excessive worry for his grandmother as he has been the primary carer for him and his twin brother. He is suffering from severe anxiety. If she could extend her visa for a few months, then he could gradually develop coping strategies.

12. The applicant provided a copy of the Australian passport for her grandson.

13. A statement of Pui Shi Ng, the applicant’s daughter was also provided. She said that on 29 August 2016 she, her mother and her two sons travelled to Australia from Hong Kong. She said that her agent told her to apply for a Visitor Visa, and nobody told her about applying for a parent visa. School reports were provided for the grandson indicating he was doing well at school.

14. The applicant’s daughter, Mrs Ng, appeared before this Tribunal on 28 March 2018 on behalf of the applicant to give evidence and present arguments. She explained that the applicant needed to take her sons to school and had consented for her to appear on her behalf before the Tribunal.

15. The Tribunal explained the procedural aspects of the hearing and the criteria for the grant of the visa.

16. Mrs Ng confirmed that the applicant had last arrived in Australia on 29 August 2016 and that the grant of the visa would amount to her staying for a consecutive period of more than 12 months. She confirmed that she had stated her reason as ‘take care of my two grandsons when my daughter is on a business trip’.

17. The Tribunal confirmed with Mrs Ng that the delegate had found that the applicant failed to satisfy cl.600.215 of Schedule 2 to the Regulations which requires there be exceptional circumstances for the grant of the visa sought in his particular circumstances The Tribunal invited the Mrs Ng to expand on and give evidence in relation to any reasons she believed amounted to exceptional circumstances for consideration.

18. Mrs Ng said that her mother looked after her sons while they were living in Hong Kong and also in Australia. One of her sons relied on his grandmother. When he realised that she was leaving Australia, he was crying and did not want to go to school, so she had to send him to see a doctor. She and her sons are Australian citizens.

19. She was asked about the letter from the psychologist in August 2017, which stated that her grandson needed a few more months to adjust to her leaving. The Tribunal noted that this was in August 2017 and because of the time taken for the matter to come before the Tribunal, her mother had had a further 6 months stay. She said that she needs to go on business trips more often, so no-one can take care of her sons. She sells property in Hong Kong and China. So she needs to travel although for the first year she has stayed in Australia to settle the children. Asked about whether her son’s anxiety had improved, she said that he had got upset knowing the case was before the Tribunal.

20. The Tribunal put to the applicant’s daughter information which would be the reason or part of the reason for affirming the decision under review. The information was contained in an interview she held with the Department. Mrs Ng had told the Department that the reason they wanted to extend her mother’s stay in Australia trip that she went on many business trips and needed her mother to look after her children, who were in perfect health. However Dr Chiu’s report suggested that Dr Chiu had seen her son for treatment since May 2017, Furthermore, she had not mentioned her son’s anxiety in the application in August 2017. She was asked to respond or comment and said she that she was very nervous.

21. The Tribunal explained that while the term exceptional circumstances  is not defined in the Act or the Regulations, it is taken to mean circumstances that are out of the ordinary, unusual, or in some way special although not necessarily unique. The Tribunal also explained that the Department's policy, which though not binding on the Tribunal, provides guidance as to what exceptional circumstances may include. These circumstances may include 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.

22. The Tribunal explained the Department's policy also indicates a further example of exceptional circumstances may include 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. The Tribunal emphasized that the policy guidelines are not an exhaustive statement of what might be considered exceptional circumstances.

23. Mrs Ng stated that she wants her sons to settle for another few months. In 2019, they will be 16 years old, and will be able to accept their grandmother going back and forth.

24. The representative submitted that Mrs Ng is a single mother whose sons were looked after by their grandmother since birth. The grandsons came to Australia in August 2016 with their grandmother. They had problems adjusting and did not want their grandmother to leave. The refusal of the visa had caused hardship to them, and they are sad and upset. Although the applicant is eligible for permanent visas, she has not applied as she has been on visitor visas only, portraying her intention to stay temporarily only. She wants to return to Hong Kong on the expiry of her visa. Her brother lives there with his children.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

26. The visa applicant sought the visa for the purpose of ‘take care of my two grandsons when my daughter is on a business trip’. Visiting family is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

27. She has elaborated on her reasons for wishing to extend her visa, to the Tribunal, submitting that her grandson suffers from adjustment disorder and anxiety and needs her close by.

28. 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.

29. The specified visas are:

    ·     (a) one or more visitor visas;

    ·     (b) a Subclass 417 (Working Holiday) visa;

    ·     (c) a Subclass 462 (Work and Holiday) visa;

    ·     (d) a bridging visa.

30. In considering whether exceptional circumstances exist for the grant of the visa, the Tribunal had regard to, but is not bound by, the guidelines set out in the Department's Procedures Advice Manual (PAM3). Relevantly PAM3 states:

    If the total stay will exceed 12 consecutive months

    Exceptional circumstances must exist for granting an FA-600 visa if the period of authorized stay in Australia as the holder of one or more visitor visas (that is, FA-600, UD-601 ETA, TV-651 eVisitor and all former equivalents) and/or

    Working Holiday (TZ-417) visas

    Work and Holiday (US-462) visas and/or

    bridging visas

31. For applications made on or after 21 November 2015, bridging visas are included in the list of visas that count towards the '12 consecutive months' referred to in 600.215.

32. The Tribunal finds that the applicant entered Australia on 14 August 2017 as the holder of a subclass UD-601 Visitor visa. It ceased to be in effect on 27 August 2017. The applicant made her current subclass 600 visa application on 14 August 2017 and was granted a bridging visa A in association with that visa application.

33. 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 subclass 600 visa and a bridging visa A, which are visas specified in cl.600.215.

34. The Tribunal has considered the applicant's circumstances carefully. It accepts that she wishes to spend more time in Australia to care for her grandchildren, and that her daughter, Mrs Ng, would like her to look after the boys while she is on business trips, particularly before they turn 16 in 2019. Notwithstanding the fact that she did not raise the issue of her grandson’s health to the Department, the Tribunal accepts that one of the grandsons has suffered from adjustment disorder and that the grandsons are sad about their grandmother leaving.

35. 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’.

36. 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.

37. 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.

38. 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.

39. 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:
    • 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. 

40. The Tribunal is not satisfied that the applicant’s circumstances amount to exceptional circumstance in the sense of them being out of the ordinary or unusual.

41. While it would be useful for Mrs Ng, a single working mother, to have her mother in the country to continue to help her with her sons, this is not an exceptional circumstance or one which has arisen since the grant of the first visa.

42. In regard to her grandson’s anxiety, the Tribunal has taken into consideration the fact that the psychologist’s report dated August 2017 suggested that he would need a few more months to adjust to the concept of his grandmother’s departure. He has had over eight months to adjust since then, due to the time taken for the matter to come before the Tribunal. A later report from the psychologist dated March 2018 suggested that her grandson would need a few more months to learn coping strategies. The Tribunal notes that he has had at least a month and a half since that date for this purpose as well as earlier months.  Further, the applicant and Mrs Ng did not emphasise that Mrs Ng’s son’s mental health was a concern in the application or at the Department interview in August 2017, despite the fact that the psychologist’s report was dated May 2017. She told the Department that her sons were in perfect health. The Tribunal accepts that Mrs Ng may have been nervous at the interview and this may mean she omitted information, but if her son’s mental health was a significant concern, it would be expected that she would have made submissions about it of some sort at the time. Considering all these factors the Tribunal does not accept that the grandson has a serious illness or that the refusal of the grant of the visa would cause significant hardship to an Australian citizen.

43. The Tribunal considered the applicant's circumstances individually and cumulatively and is unable to be satisfied that her circumstances can be described as 'exceptional' in that they are out of the ordinary or unusual.

44. 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.

45. Cl.600.215 (1) requires there to be exceptional circumstances in existence as a condition to the grant of the visa. 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.

1. 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.

   DECISION

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

   Jane Marquard
   Member