1702606 (Migration)

[2018] AATA 5418

1702606 (Migration) [2018] AATA 5418 (29 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1702606

MEMBER:John Billings

DATE: 29 October 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Confirmatory (Residence) (Class AK) visa.

Statement made on 29 October 2018 at 11:37am

CATCHWORDS
MIGRATION – Confirmatory (Residence) (Class AK) visa – Subclass 808 (Confirmatory) – medical needs of daughter-in-law and grandchildren – ongoing assistance to daughter-in-law – ‘crucial protective factor’ for grandchildren in Australia – serious, ongoing and irreversible harm – continuing hardship to Australian citizens and family unit – best interests of the children – Ministerial Intervention requested – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), Schedule 2, cl 808.211

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 3 February 2017 to refuse to grant the visa applicant a Confirmatory (Residence) (Class AK) Subclass 808 visa under s.65 of the Migration Act 1958 (the Act).

2. The [visa applicant] applied for the visa on 2 February 2017. The delegate refused to grant the visa on the essential basis that at the time [the applicant] applied for the visa she was the holder of a Class FA Subclass 600 visa and so was not the holder of one of the types of visas required for eligibility for the Class AK visa.  Accordingly [the applicant] did not meet cl.808.211 of Schedule 2 to the Regulations. 

3. [The applicant] was represented in relation to the review by her registered migration agent.

4. In a letter that accompanied the visa application [the applicant]’s representative informed the Department that [the applicant] was aware that her visa application had no prospect of success but that she had instructed him to lodge the application because she wished ultimately to “access the Minister’s powers pursuant to s.351” of the Act. 

5. [The applicant] applied for review on 15 February 2017.  She provided a copy of the primary decision to the Tribunal.

6. [The applicant] appeared before the Tribunal on 26 October 2018.   The Tribunal also received oral evidence from [the applicant]’s son, [Mr A], and daughter-in-law [Ms B]. 

7. The representative attended the hearing and made oral submissions. 

8. Following the hearing, the Tribunal received an email dated 28 October 2018 containing further evidence and submissions.  

9. [The applicant] is a [age] year old national of the Republic of South Africa.  She is retired.  She has been divorced for many years.  Her former husband resides in [Country 1] where [a number of her] children also reside with their families.   [The applicant] left South Africa five years ago.  She does not have any close family or any assets left in that country.  She has an entitlement to reside indefinitely in [Country 1] but she is required to visit that country at least once a year to preserve that entitlement.  She has no property in [Country 1].  Apart from the members of her family who are there she has no connection to that country.  

10. [Mr A] and [Ms B] and their three children are Australian citizens.  The children are a son, [Child 1], aged [age], a daughter, [Child 2], aged [age], and another daughter, [Child 3], aged [age]. 

11. [Mr A] and [Ms B] migrated to Australia in or about 2000.  [The applicant] visited Australia briefly in the early 1990s.  Since 2003 [the applicant] has visited Australia on very many occasions.  She has lived with the family in their home for several months at a time.  At present she is living nearby in accommodation that [Mr A] owns.  (In the email dated 28 October [the applicant] clarified that she lives separately to give [Mr A] and [Ms B] space but she has moved back into the family home as required by [Ms B]’s health.  Living close by she is able to make the children’s breakfast regularly.  She takes [Child 3] to school and from school to afternoon activities).  For the most part, when [the applicant] has left Australia it has been to visit family in [Country 1], but [the applicant] recently visited South Africa to say goodbye to old friends to sort out some remaining financial matters.  (In the email dated 28 October [the applicant] mentioned that for security reasons she had to attend to her financial affairs in person). 

12. A report dated in early 2017 by psychiatrist, [Dr C], and two recent reports by psychologist, [Ms D], were submitted to the Tribunal.  [Dr C]’s report concerns [Ms B].  [Ms D]’s reports concern [Child 2] and [Child 3]. 

13. [Dr C] described [Ms B] as “a highly anxious personality with unstable emotionality, frequently suffering anxiety depression”.  He described her medical history as “horrific”, saying that she had had one major medical problem after another since 2009.  [Dr C] noted that each time there was a medical crisis [the applicant] came to Australia to support her and the children and that for months on end she assisted in the “running of the family”.  He described [Ms B] as “medically unfit and psychologically struggling to cope with her personality, and her reaction to all [her] illnesses”.  He said without [the applicant]’s assistant it would have been almost impossible for the family to survive all the stresses they had had “without serious sequelae”.  He expressed the view that there is no doubt that [Ms B] requires the ongoing assistance of [the applicant] to help cope with her life, and her family.  (In the email dated 28 October [the applicant] said that she is very blessed to have a great relationship with [Ms B].  She said that [Ms B] is emotional and “highly strung” and that she, [the applicant], is able to keep the household calm and running smoothly in times of need). 

14. [Dr C]’s reports, read together with [Ms D]’s reports, provide considerable detail about [Ms B]’s complex medical history and the impact that has had on [Child 2] and [Child 3] especially. 

15. Summarised briefly, the history is as follows.  In [year] [Ms B] was diagnosed with [a medical condition].  [Child 2] turned [age] that year and was in Grade [number] at school.  [Child 3] was born that year.  [Ms B] had major surgery and was hospitalised for 10 days.  She underwent high dose radio iodine treatment and had to live with her parents because the treatment necessitated that her children not get physically close to her.  [Ms B] told the Tribunal about Mother’s Day that year when [Child 2] wanted a hug from her but was not allowed to go closer than to the top of the stairs.  During this time [Mr A] had to keep working and the family relied heavily on [the applicant].  The next [year], [Ms B] was diagnosed with a different condition that required 11-hour surgery [and] two weeks’ hospitalisation followed by three months’ rehabilitation.  [The applicant] moved into the family home during this time.  When [Child 2] was [age], and [Child 3] about [age], [Ms B] required major knee surgery and was immobile.  Then, in 2015, when [Child 2] was [age], and [Child 3, age], [Ms B] was diagnosed with [another medical condition].  She underwent a [procedure] followed by [therapy].  [The applicant] lived with the family during this time.  [Ms B] has frequent ongoing health care and check-ups.  [Ms D] said that the “permanent ongoing nature of [Ms B’s] health and medical issues requires support and assistance, particularly on a practical level, but also on an emotional level for her children.”

16. Concerning the impact of this history on [Child 2], [Ms D] said that [Child 2] has clearly had to cope with significant stress through her early childhood years because of [Ms B]’s health.  [Ms D] expressed the opinion that the support [Child 2] has received from [the applicant] has served as a “crucial protective factor” which has “facilitated [Child 2]’s ability to cope with the uncertainty, instability, fear and sadness around [Ms B]’s hospitalisations”.   [Ms D] then mentioned in her report that [Child 2] has been diagnosed with Autism Spectrum Disorder.  She said that it is well known that children with the disorder require high levels of ongoing support to cope with the stress and demands of the world around them as they are predisposed to experiencing debilitating levels of anxiety.  [The applicant] can assist [Mr A] and [Ms B] with the daily practical demands of child rearing and supporting a child with additional needs, [Ms D] said.  The support of someone “reliable, familiar and secure” facilitates a sense of structure, predictability and certainty, all of which are fundamental to keep [Child 2]’s anxiety at bay, [Ms D] said.  She concluded her report about [Child 2] by noting that [Child 2] is approaching her final school years and will require as much support as possible during this time so that the “stable presence of her grandmother [the applicant] will be of invaluable benefit to [Child 2]’s social and emotional well-being”. 

17. In her report about [Child 3], [Ms D] described [the applicant] as a critical figure for [Child 3] who had played both a protective and a nurturing role for her.  She said that [the applicant] had been pivotal in holding the family together in a practical as well as an emotional sense. [Ms D] said that [Child 3] has a “deep fundamental bond” with [the applicant].  [Child 3], described by [Ms D] as a sensitive child, is anxious and has experienced “several psycho-social difficulties both at home and at school” when separated from her grandmother.  The report gives a number of instances.  [Ms D] referred to [Ms B]’s medical history, noting that at the time [Ms B] was diagnosed with [a medical condition], breastfeeding of [Child 3] had to cease abruptly.  [Ms B]’s treatment separated her from the children.  [Mr A] had to keep working.  [Mr A] and [Ms B] depended on [the applicant]’s support.  [The applicant] resided in the family home for three months.  During [Ms B]’s illness and recovery [Child 3] was cared for full-time by [the applicant]. [Child 3] was aged [age] when [Ms B] required surgery [and] had a long period of recovery.  Once again [the applicant] lived in the family home and cared for her.  [Child 3] was [age] when [Ms B] had major knee surgery.  [The applicant] lived with the family while [Ms B] was immobile.  [The applicant] returned to live with the family the next year when [Ms B] was diagnosed with [another medical condition].  [Ms D] referred to further tests and examinations [Ms B] requires now, commenting that “these are always extremely anxiety provoking times for the family and it is essential that there is access to adequate and effective support structures”.  [Ms D] expressed the opinion that as [Child 3] is growing older “she will develop an increased awareness of the uncertainty surrounding her mother’s health and this is particularly frightening for a child”.

18. [Ms D] said that it is imperative for [Child 3]’s psychological and social well-being that a “primary care preventative model” be applied.  She said that early loss, trauma and separation predisposes children to a range of depressive illnesses and anxiety in later years.  [Ms D] said that [Child 3]’s most powerful protective factor lies in the relationship she has established with her grandmother and that if this emotional bond is threatened, it may have very damaging psychological consequences for [Child 3].  [Ms D] concluded her report by expressing the opinion that to “deny this young girl access to a consistent and predicable relationship with her grandmother is knowingly to predispose her to psychological distress”. 

19. At the hearing the Tribunal noted that, according to the Department’s records, since [the applicant] applied for the visa in February 2017 she has travelled overseas on three occasions.   The Tribunal asked how that could be, given the family’s stated reliance on [the applicant].  The Tribunal heard that apart from [the applicant]’s trip to South Africa mentioned earlier she went to [Country 1] for son’s birthday.  [Mr A], [Ms B] and the children went with her.  And earlier this year [the applicant] went to [Country 1] for a grandson’s bar mitzvah.  On this occasion [Child 2] accompanied her but she had to return sooner to go back to school.   (In the email dated 28 October [the applicant] stated that there were further trips to [Country 1] that the family made together in whole or part). 

20. [The applicant] told the Tribunal about the special relationship she has with her grandchildren.  In relation to [Child 2]’s Autism Spectrum Disorder diagnosis, [the applicant] effectively described the condition as mild.  She confirmed that [Child 2] attends a mainstream school.   Still [the applicant] said in effect that she and [Child 2] have a special rapport: [Child 2] is quiet and would often rather sit reading, but she talks to [the applicant] in ways that she does not with other people. 

21. The Tribunal inquired as to how the family has managed at times when [the applicant] has been overseas.  It was at that point that the Tribunal heard about the time [Child 2] went with her and the time when the whole family went with her.  The Tribunal heard that on other occasions when [the applicant] has been overseas, there has been a noticeable decline in the way that [Child 2] and [Child 3] especially manage their routines.  They have been unsettled and [Child 3] has found it harder to control herself emotionally.  Further to this, [Mr A] told the Tribunal that he has had to suspend his [work] so that he could be present more of the time to assist [Ms B] and the family.  (He explained that his work involves [details deleted].  These two days have been given up when [the applicant] has been overseas). 

22. The Tribunal inquired about other possible sources of support within the family.  The Tribunal heard that [Ms B]’s parents and live nearby.  Because they are elderly they have not been able to help much [Ms B] although her mother has helped a bit.  [Ms B] has two sisters but they have their own families and concerns.  [Ms B]’s father has recently been diagnosed with [a medical condition].  He is living at home in the care of [Ms B]’s mother.  This means that [Ms B]’s mother is less able to support [Ms B] than she might once have been.  Rather, it is [Ms B] who helps her parents when she can. 

23. The Tribunal mentions that it was told that [Child 2] had been prescribed new anti-depressant medication two months ago or thereabouts.  [Mr A] and [Ms B] have been very concerned that [Child 2] was contemplating harming herself.  There had been some improvement in [Child 2]’s mental state but she will be seeing a psychiatrist.  The Tribunal further mentions that [Dr C]’s report indicates that [Ms B] uses medication at times to control her anxiety levels.  [Ms B] told the Tribunal that she still does this sometimes but she is not at present. 

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

25. The issue in the present case is whether [the applicant] meets cl.808.211 of Schedule 2 to the Regulations.  As [the applicant] concedes that she does not meet the requirements for the visa, the Tribunal must affirm the decision to refuse the visa. 

26. The Tribunal has decided that the case should be referred to the Minister. 

    REFERRAL TO THE MINISTER

27. Section 351 of the Act provides that if the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.  In deciding whether to refer the matter to the Minister for consideration under s.351 the Tribunal has had regard to the President’s Direction Conducting Migration and Refugee Reviews, especially at paragraphs 16.1 – 16.7 concerning referrals for ministerial intervention and the Minister’s Guidelines on ministerial powers (s345, s351, s391, s417, s454 and s501J) available in the Procedures Advice Manual 3 (“the Minister’s Guidelines”).

28. The Tribunal notes that [the applicant] is in the community and that she holds a bridging visa.  There is nothing before the Tribunal to indicate that there is any compliance or other concern about her.

29. Among other things, the Minister’s Guidelines state that the Minister may consider exercising his discretion in cases that exhibit one or more “unique or exceptional circumstances”.  The Guidelines then identify factors that may be relevant, individually or cumulatively, in assessing whether a case involves unique or exceptional circumstances.  Most relevantly, they include:

    ·     strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident; and

30. In the Tribunal’s view, this case involves the likelihood of serious, ongoing and irreversible harm and continuing hardship to Australian citizens and to an Australian family unit.    The Tribunal therefore refers the case for possible consideration by the Minister of the use of his intervention powers. 

31. In the email dated 28 October the representative referred to some further considerations.  The Tribunal has focussed on the matters falling within Part 4 of the Guidelines for which evidence has been submitted.  The Minister may of course have regard to the further considerations and any evidence relevant to that.

32. In Part 5, the Guidelines contemplate that for cases referred to the Minister the Department would inform the Minister on relevant issues including the following:

    ·     circumstances that may bring Australia’s obligations under the Convention on the Rights of the Child into consideration, including the best interests of the child - which must be treated as a primary consideration, but can be balanced against other primary considerations

33. These issues are relevant in the present case. 

34. Examining relevant factors individually and cumulatively, the Tribunal considers that it would be appropriate to make a referral to the Minister in this case.

    DECISION

35. The Tribunal affirms the decision not to grant the visa applicant a Confirmatory (Residence) (Class AK) visa.

    John Billings
    Senior Member