Yassa (Migration)

[2019] AATA 1078

Yassa (Migration) [2019] AATA 1078 (20 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rafik Noshy Yassa

CASE NUMBER:  1800165

HOME AFFAIRS REFERENCE(S):           BCC2017/4835409

MEMBER:Christine Kannis

DATE:20 May 2019

PLACE OF DECISION:  Perth

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

Statement made on 20 May 2019 at 5:31am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – stay in Australia more than 12 consecutive months – further visa requested – requires medical attention from Australian citizen children – pre-existing medical conditions – used carers in Egypt – no exceptional circumstances – decision under review affirmed

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

CASES

An v Minister for Immigration and Citizenship [2007] FCAFC 97

Hatcher v Cohn [2004] FCA 154

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 19 December 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 15 December 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). The delegate refused to grant the visa on the basis that the applicant did not meet cl.600.215 because the applicant was requesting a further visa which if granted would mean he would stay in Australia more than 12 consecutive months and he had not provided exceptional circumstances for the grant of the visa.

4. The applicant appeared before the Tribunal on 15 May 2019 to give evidence and present arguments.  The Tribunal also received evidence from the applicant’s daughter, Dr Gehane Yassa. The Tribunal was assisted by an interpreter in the Arabic and English languages.

5. The applicant was represented in relation to the review by his registered migration agent. Prior to the hearing the applicant’s representative provided a written submission (the pre-hearing submissions) but did not attend the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. In accordance with the President’s Direction Conducting Migration and Refugee Reviews (paragraph 8.2), the Tribunal has restricted its review to the particular criterion on which the primary decision was made. 

8. The issue in this case is whether the applicant satisfies cl.600.215 which provides that:

   (1)  If subclause (2) applies—exceptional circumstances exist for the grant of the visa.

   (2)  This subclause applies if the grant of the visa would result in the applicant being authorised to stay in Australia as the holder of one or more of the following visas for a total period of more than 12 consecutive months:

   (a)  one or more Visitor visas;

   (b)  a Subclass 417 - Working Holiday visa;

   (c)  a Subclass 462 - Work and Holiday (Temporary) visa;

   (d)  a Bridging visa. 

9. The criterion is one that must be satisfied at the time of the Tribunal’s decision.

10. The applicant was born on 3 January 1937. He is a citizen of Egypt.

11. The applicant most recently arrived in Australia on 19 December 2016 as the holder of a Subclass 600 (Visitor) visa which ceased on 19 December 2017. He applied for the visa which is the subject of this review on 15 December 2017 and requested a stay of a further 12 months up until 19 December 2018. The reason for seeking the extension was stated to be because he wanted to extend his visit to stay with his two daughters after he became widowed. His two daughters are Australian citizens and they are his last family members.   

12. The pre-hearing submissions contained the following information:

    ·The applicant is 81 years old and in 2016 he came to Australia to visit his only two daughters who are both Australia citizens.

    ·On 4 December 2017 the applicant was granted a waiver of condition 8503.

    ·On 15 December 2017 the applicant applied to renew his Visitor visa and his application was refused.

    ·In refusing the visa the delegate disregarded the Department's Procedures Advice Manual (PAM3) in relation to special circumstances.

    ·The Explanatory Statement to the Migration Legislation Amendment (2015 Measures No. 3) Regulation 2015 refers to preventing an applicant from being granted a Subclass 600 visa if it would mean their stay in Australia would exceed 12 consecutive months unless exceptional circumstances exist.

    ·Subclass 600 visas are sometimes handy visas to allow a person to re-calibrate their visa status onshore and allow a transition to student visa or whatever.

    ·The phrase “exceptional circumstances” is a broad term and the examples in the Explanatory Statement are not exhaustive.

    ·During the period in which the applicant has applied to the Tribunal his health has deteriorated. He had a fall and suffered fractures to his right leg bones and needed to stay in hospital for about 40 days for rehabilitation.

    ·The applicant is in need of medical treatment and currently his daughter (who is a doctor) is looking after him and his other daughter is a nurse.

13. Prior to the hearing Discharge Summaries for the applicant from Hollywood Private Hospital, Osborne Park Hospital and Sir Charles Gairdner Hospital (SCGH) were provided.

14. Prior to the hearing a Medical Certificate dated 4 May 2019 from Dr Sam Takla was provided. Dr Takla provided the following information:

    ·The applicant was living independently in Cairo before he travelled to Australia to visit his daughters in late 2016.

    ·On 5 November 2018 he suffered a fall which resulted in fracture in his right tibia just under his knee. He had an open reduction and internal fixation at SCGH and a month of rehabilitation in Osborne Park Hospital. His condition has markedly deteriorated after the fall, operation and rehabilitation.

    ·The applicant is currently bedridden or wheelchair bound and can only stand with the help of a hoist or frame with two persons for support. He has also developed multiple deep ulcers on both legs and feet with a critical deep ulcer on his right heel. The applicant had an angiography and angioplasty in November 2018 both of which were repeated in March 2019.

    ·The applicant’s condition requires the presence of his daughter as his caregiver.

15. Dr Takla also said the applicant has the following medical conditions:

    (i)Diabetes Mellitus Type I managed with insulin

    (ii)Reduced field of vision and diabetic retinopathy

    (iii)Able to mobilise with the help of a frame

    (iv)Chronic kidney disease

16. A letter dated 2 April 2019 from Professor B Patrice Mwipatayi of Royal Perth Bentley Group was provided. Professor Mwipatayi is the Vascular Surgeon treating the applicant. She said the applicant had a long history of vascular problems and continues to suffer from advanced peripheral vascular disease with deep ulcers on the right side and a critical deep ulcer on the right heel. She said he will require ongoing management of his peripheral vascular disease and it would be in his best interest to have access to the Vascular Surgery Department at Royal Perth Hospital or SCGH who will monitor his condition should an emergency arise.

17. A letter dated 5 May 2019 from the applicant’s daughter, Dr Gehane Yassa, was also provided. She said in November 2016 she invited her father to spend Christmas with his grandchildren. At that time he had Diabetes Mellitus Type I, Peripheral Vascular Disease and Cauda Equina Syndrome but he was stable. In November 2018 he had a fall and suffered fractures to his right leg bones just under his knee and he needed to stay in hospital for about 40 days for rehabilitation after surgery. Since then he has been gradually deteriorating at a fast rate and is nearly bedridden or wheelchair bound with hoist transfer. She said his prolonged recumbency has led to several deep critical pressure ulcers in both his feet, ankles and leg, necessitating further vascular surgeries to widen the arteries for more blood supply to his lower limbs. She said it is impossible to send the applicant back to Egypt in his condition with no close relatives there to look after him. She is his main carer and he had been living with her since he came to Australia. Her mother passed away 13 years ago. She urged the Tribunal to consider letting the applicant stay in Australia surrounded by his family and people who love him.

18. The Tribunal confirmed with the applicant that the delegate found that he 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 applicant to expand on and give evidence in relation to any reasons he believed amounted to exceptional circumstances for consideration.

19. In response the applicant told the Tribunal that the poor blood flow in his legs means that he is at risk of amputation or of having other organs affected.

20. The Tribunal noted that Professor Mwipatayi referred to the applicant as having a long history of vascular problems and asked him about those problems. He confirmed he had vascular problems before coming to Australia but said they had worsened over time. Noting that the medical evidence referred to the applicant’s condition worsening after a fall the Tribunal asked the applicant the reason he understood his problems had worsened. He said the reason was that he had suffered vascular problems for a long period of time. The Tribunal pointed out that the documentary medical evidence before it indicated that his condition had deteriorated following a fall. The applicant said the duration of the disease and the fall have both contributed to his health deteriorating since arriving in Australia.

21. The applicant told the Tribunal that there is nobody in Egypt who could provide the care his daughter provides. His only two children live in Australia and all his relatives in Egypt are deceased.

22. The Tribunal asked the applicant about his current mobility and his mobility prior to coming to Australia. He said before he came here his mobility was not good but it wasn’t as bad as it is now. Prior to coming to Australia he used a frame to walk.  He said he was assisted by airline/airport staff using a wheelchair when he boarded the plane in Egypt and disembarked in Australia.

23. The applicant told the Tribunal he had a nurse in Egypt who assisted him from Monday to Friday. He said she did everything for him including feeding him, helping him to the toilet, bathing him and helping him to dress. The Tribunal asked the applicant whether he could employ a nurse to assist him if he returns to Egypt. He said it would not be easy to find a nurse because she may not stay very long. He said normally they leave after a short time and sometimes they are unable to provide specific help such as helping him to the toilet. Noting that the applicant’s evidence indicated that he had more than one nurse and that he said “they” leave after a short time, the Tribunal asked him how long he had been assisted by a nurse in relation to his daily living activities. He said he had assistance for two or three years prior to coming to Australia.

24. The Tribunal asked the applicant how long he intended staying in Australia. He said he wasn’t sure how long he needed to stay because he needs his daughter to care for him.

25. Dr Yassa told the Tribunal that the applicant did not have a nurse helping him for two or three years. She said the applicant is a psychiatrist and prior to coming to Australia he was still working. She said he had a nurse he employed in his practice for 25 years and it was this nurse who helped him. Dr Yassa said after the applicant was discharged from ICU for urinary problems in October 2016 he retired and his nurse stopped working for him.  After that he had two carers. She said these carers only looked after the applicant for 19 days before he travelled to Australia.

26. Dr Yassa told the Tribunal that the applicant has had health problems, including Type 1 diabetes and vascular disease, for many years. Prior to 2016 she would travel to Egypt and stay for a couple of months to look after him. She was unable to continue these lengthy visits because of family commitments.

27. Dr Yassa said that after the applicant’s urinary problems in 2016 he still needed medical treatment. She and her husband are doctors and they decided the applicant should come to Australia and they could fix his problems. She said they have been to multiple medical specialists in Australia in relation to the applicant’s urinary problems.

28. Dr Yassa told the Tribunal that the applicant’s health deteriorated after he arrived in Australia. She said his mobility worsened and he now has pressure sores. The Tribunal asked Dr Yassa about the impact of the fall in November 2018 on the applicant’s mobility. She said it wasn’t really a fall and said he was leaning and lost his balance.

29. Dr Yassa said the applicant is a high care patient and he needs to stay in Australia so she can care for him. She said if he returns to Egypt he will die because there is nobody to look after him.

30. The Tribunal asked Dr Yassa the hardship she would suffer if the applicant has to depart Australia. In response she said she is unable to return to Egypt because her life is in Australia. She works in Australia and her husband and children are here. Dr Yassa said if the applicant returns to Egypt it will end his life and she cannot go with him.

31. The Tribunal explained that while it understood the applicant’s circumstances, the issue before it at the present time was whether he satisfies cl.600.215, and in particular whether there are exceptional circumstances.

32. At the hearing the Tribunal explained the temporary nature of the Visitor visa scheme and that it had to consider whether the granting of the Visitor visa would result in the applicant being in Australia for more than 12 consecutive months as the holder of one or more of the specified visas.

33. The Tribunal finds that the grant of the Visitor 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 those circumstances, exceptional circumstances needed to be established for the criterion in cl.600.215 to be met.

34. 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'.

35. 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.

36. 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.

37. 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:

    ocould not have been anticipated at the time their visitor visa was granted and

    ois beyond the visa applicant's control and

    owhere not granting a visa would cause significant hardship to an Australian resident or citizen.

38. The applicant has applied for a Visitor visa, which is a temporary visa for the purpose of staying with his daughters.

39. The Tribunal has carefully considered the applicant’s circumstances including the assertion that there is no one to look after him in Egypt; the Tribunal did not find the evidence in this regard to be satisfactory and is not prepared to accept that he would be unable to find a carer; the Tribunal does however accept that the applicant wishes to remain in Australia. It is also prepared to accept that he is elderly and may require some assistance in getting around (as he did prior to coming to Australia). The Tribunal accepts that the applicant has mobility problems and noted he attended the hearing in a wheelchair. The Tribunal accepts that the applicant’s mobility has deteriorated since he has been in Australia however it is not satisfied that his circumstances amount to exceptional circumstances in the sense of them being out of the ordinary or unusual. The Tribunal is not satisfied that the applicant’s desire to remain in Australia with his daughter and his needs, although genuine, as a result of his age and his health ‘form an exception’, or are ‘extraordinary’ or ‘unusual’. 

40. There is no evidence before the Tribunal to suggest the applicant falls into the circumstances identified in the Department's policy, such as death, serious illness or serious medical condition of a member of the visa applicant’s family, or any other types of circumstances which are unusual or out of the ordinary. 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. At the time the visa was granted the applicant was 79 years old and had multiple medical conditions including vascular disease. At the time the applicant’s visa was granted he was receiving assistance from a nurse or a carer in relation to daily living activities. At the time the visa was granted the applicant used a frame to walk and required wheelchair assistance to undertake air travel. The Tribunal decided that the deterioration in the health of an unwell elderly man, particularly in relation to mobility issues that were pre-existing, is not a circumstance that could not have been anticipated at the time the visitor visa was granted. Furthermore, in the Tribunal’s view, it is not an unusual or extraordinary circumstance.

1. The Department’s policy is a guide only, but having considered the applicant’s circumstances, the Tribunal is not satisfied there are other exceptional circumstances warranting the grant of the visa.

2. The Tribunal also noted that the evidence indicates the applicant is not seeking a further temporary stay. The Tribunal finds that the applicant wishes to stay permanently in Australia.  While the Tribunal accepts that the applicant wants to stay permanently in Australia with his daughters, it notes that he has now been in Australia for two and a half years as a visitor/holder of a bridging visa. The visa currently sought is also a Visitor visa, for temporary stays only, and the criteria require exceptional circumstances for renewal. As noted at hearing, other visas may be more appropriate for this applicant.

3. Accordingly the Tribunal finds the requirements of cl.600.215 are not met and the decision under review should be affirmed.

   DECISION

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

   Christine Kannis
   Member