2202775 (Migration)

[2022] AATA 5262

2202775 (Migration) [2022] AATA 5262 (8 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mrs D Chandrani Buddhipala (MARN: 9581168)

CASE NUMBER:  2202775

MEMBER:Jane Marquard

DATE:8 August 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl 600.211 of Schedule 2 to the Regulations.

Statement made on 08 August 2022 at 7:14am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – visit sons – emotional and psychological wellbeing – mental health issues – applicant complied with conditions of her last visa – strong compassionate need for visits with her children – visa applicant genuinely intends to stay temporarily in Australia – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 600.211

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 Home Affairs on 27 January 2022 to refuse to grant the visa applicant [a] Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant is a woman from Fiji. Her husband and daughter live in Fiji, and her three sons live in Australia. Her first son is the primary review applicant, [Mr A], aged [age]. He acquired Australian citizenship on 19 June 2021. The second son, [Mr B], is aged [age] and acquired Australian citizenship on 2 April 2012. The third son, [Mr C], is aged [age]. He acquired citizenship on 2 November 2016.

3. The visa applicant [applied] for the visa on 8 October 2021. 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.

4. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (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 (in this case visiting family).

5. The delegate of the Department refused to grant the visa on the basis that the visa applicant did not meet cl 600.211 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant genuinely intends to stay temporarily for the purpose for which the visa was granted.

6. The review applicant, [Mr A] and the visa applicant [appeared] before the Tribunal by MS Teams video on 3 August 2022 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr B] , the second son. The applicants’ representative, Mrs Chadrani Buddhipala, was also present. All parties could communicate clearly. The Tribunal is satisfied that this forum provided a satisfactory opportunity to be heard.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The key issue in this case is whether cl 600.211 of Schedule 2 to the Regulations is met. This clause requires the Tribunal to be satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter. The Tribunal is satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, for the reasons set out below.

   Purpose of visit

9. In order to decide whether the applicant meets cl 600.211, it is important to specify the purpose of the visit. According to her application and evidence to the Tribunal, the visa applicant seeks the visa for the purposes of visiting her children. Visiting family is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

   Has the visa applicant complied substantially with the conditions of the last substantive visa or subsequent bridging visa?

10. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether he or she has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl 600.211(a)).

11. The visa applicant's last Bridging Visa E was granted on 2 April 2020 and ceased [in] April 2020. The visa applicant departed Australia on that same date. There is no evidence before the Tribunal to indicate that she did not comply substantially with this visa and this is considered favourably in regard to the consideration of whether she genuinely intends to stay temporarily for the purpose for which the visa is granted.

    Does the visa applicant intend to comply with the conditions of the visa?

12. The Tribunal must also consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject (cl 600.211(b)). The conditions to which a visa in the circumstances of this case may be subject are as follows:

    ·8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than 3 months

    ·8503 – not entitled to a substantive visa, other than a protection visa, while remaining in Australia

    ·8531 – must not remain in Australia after end of permitted stay.

13. Given there is no evidence of non-compliance with work or study visa conditions in the past, the Tribunal is satisfied that the visa applicant intends to comply with these conditions, as well as condition 8531 which refers to entitlement, rather than obligation on the applicant.

14. The Tribunal has also considered Condition 8531, ‘must not remain in Australia after end of permitted stay’. The Tribunal is satisfied that the applicant intends to comply with this condition after listening to her evidence at the Tribunal hearing, where she emphasised that she only wanted to visit for a short time and return to Fiji, and wanted to be able to visit again in the future due to the need to spend time with her sons. In reaching this conclusion, the Tribunal has accepted submissions from the representative dated 20 June 2022 that the applicant wishes to visit her sons for a short time and that a visit for even 6 months ‘would make a drastic change in their lives’. The evidence which formed the basis for this conclusion is discussed further below in relation to consideration of the migration history and purpose of visit.

    Are there other relevant matters?

15. The Tribunal has also considered other relevant matters (cl 600.211(c)) relevant to a genuine intention to stay temporarily in Australia for the purpose for which the visa is granted. The Tribunal has considered the visa applicant’s migration history, the purpose of the visit, and incentives to return to Fiji at the end of the temporary visit.

    Migration history

16. The Tribunal has taken into consideration the fact that the visa applicant lived in Australia for a lengthy period, from 1999 to 2020, during which time she applied for a number of visas, which does suggest a desire to live in Australia permanently. The visa applicant’s migration history is summarised below. While there is no evidence of non-compliance with visa conditions such as ‘no work’ or limited study, there were some periods of time where she overstayed her visa, which again, without explanation, may indicate an intention to stay permanently.[1]

    [1] See POLICY-MIGRATION REGULATIONS- OTHER -GenGuide H – Visitor Visas – Visa application and related procedures – ‘The genuine temporary stay requirement’ (re-issue date 10/9/16)

17. The visa applicant was first granted a Tourist (TR 676) visa on 22 December 1999 and arrived onshore on [date] December 1999. This visa ceased on 10 February 2000. On the same date the visa applicant commenced and was granted a Tourist (Long stay - TN 686) visa. This visa ceased on 18 May 2000. The visa applicant was a dependent applicant on her husband's Protection (XA 866) visa application commenced on 13 April 2000 and was granted a Bridging Visa A. This visa was refused by the Department on 4 May 2000. The applicant and her husband commenced a review with the Tribunal on 8 June 2000 which was affirmed on 1 June 2001. The applicants requested Ministerial Intervention pursuant to s 417 visa of the Act on 2 July 2001 which was not considered on 29 September 2001. The applicants commenced judicial review on 29 May 2003, which was unsuccessful, with a decision on 20 February 2004. The visa applicant had been granted a number of Bridging Visas during this period. She was never unlawful during this period, from 1999 to 2004.

18. However there were periods of unlawfulness later, as discussed with the applicant at the Tribunal hearing. The visa applicant's Bridging Visa E ceased on 19 March 2004. She remained onshore unlawfully until 28 May 2004 when she was granted a further Bridging Visa E (a period of 70 days).  The visa applicant was granted a further Bridging Visa E on 29 July 2004, which ceased on 29 October 2004. The visa applicant remained onshore unlawfully from this date until she was granted another Bridging Visa E on 19 December 2008. The visa applicant was then granted a number of consecutive Bridging Visa Es from this date until 26 February 2018. This visa ceased on 12 March 2018 and the visa applicant was onshore unlawfully from this date until 27 March 2018 when another Bridging Visa E was granted (a period of 14 days). The visa applicant was granted a number of consecutive Bridging Visa Es from this date. The visa applicant's last Bridging Visa E was granted on 2 April 2020 and ceased on [date] April 2020. The visa applicant departed Australia on that same date. When asked about the periods of unlawfulness at the Tribunal hearing the applicant said that she was dependent on lawyers who did not advise her about the periods when she overstayed, and she and her husband did not understand the rules. However she emphasised that when she became aware that her protection visa had been refused, she voluntarily returned to Fiji.

19. Notwithstanding that her history indicates that the periods of unlawfulness appeared to relate to dependency on agents and a non-vigilant attitude to end dates, rather than necessarily a desire to remain permanently unlawfully, these periods of unlawfulness do demonstrate a disrespect of migration laws. At the Tribunal hearing the applicant was asked how the Tribunal could be sure that the applicant would return to Fiji at the end of her visit, given how long she lived in Australia and her periods of unlawfulness.

20. The visa applicant emphasised that she will be vigilant in complying with visa conditions given her desire to see her sons regularly. In submissions from the representative it was submitted that the visa applicant and her husband lived and were well-integrated in Australia for nearly 20 years but in April 2020 when they ‘reached the end of their visa process’ they voluntarily departed, having to leave their children including two minor children. [Mr A] told the Tribunal that it has been difficult for his mother in the past 20 years and now she has settled back into Fiji. He said that he knows that there were periods of unlawfulness but in the end she departed voluntarily even though she could have stayed because of COVID-19, but her husband was sick so she had to go back to care for him. He said that the three sons are Australian citizens and they will ensure that she complies with all laws.

21. The Tribunal accepts the submissions that the visa applicant voluntarily departed Australia in 2020, and that she intends to comply with visa conditions, given the unique circumstance of the purpose of her visit, discussed below.

    Purpose of visit

22. In reaching a decision that the visa applicant intends to comply with visa conditions, and genuinely intends to stay temporarily, the Tribunal has given significant weight to the unique circumstances of the visa applicant’s situation.[2]

    [2] Khanam v MIAC (2009) 111 ALD 421

23. After living in Australia for 20 years, the visa applicant returned to Fiji. Her three children, who are Australian citizens, have remained in Australia. Since then two of the sons have developed mental health conditions which are causing significant concern for the family. The visa applicant wishes to visit to alleviate the responsibilities of her eldest son, [Mr A] in taking care of the younger two sons by travelling to Australia for a period of up to six months to spend time with her sons. The Tribunal is satisfied on the evidence that this is the purpose of her visit, and that she only wishes to visit temporarily to help with her sons, and so that she can visit again on other occasions.

24. In a Statutory Declaration of the review applicant, [Mr A] , the second oldest child of the visa applicant, dated 21 May 2022, he explained that his youngest brother, [Mr C] , is now [age] years old. His other brother, [Mr B], was born on [date] and is [age] years old.

25. He said that his parents first arrived on [date] December 1999 with him and his sister, [name]. On 13 April 2000 his mother applied for a protection visa which was refused on 4 May 2000. She lodged a new application on 10 April 2014. This was refused on 17 December 2014. The RRT affirmed the decision and she then took the matter to judicial review. He said that despite the ‘overwhelming medical and other supporting evidence submitted to the Minister regarding the mental and physical wellbeing of her two minor children’, his parents were forced to leave Australia leaving three children in Australia. When the parents left his brothers were [age] and [age] years old.

26. He said that [Mr C], who is [age] years old, has anxiety which worsened when his parents were asked to leave. He depended on his mother and ‘got worse day by day’ after she left. He said that the thought of her returning for a visit, was ‘the only hope he had’. He said that [Mr C] was devastated by her visa refusal and his mental health has worsened. In submissions from the representative dated 30 June 2022 it was confirmed that [Mr C] was diagnosed with stress, anxiety and Adjustment Disorder in May and that he is showing a lack of interest in his studies and is ‘distressed, fearful and unsecured’. A report from [a named] psychologist, dated 23 February 2021 confirmed that [Mr C] had been attending counselling at the [Centre] after being referred by the family doctor, as he suffers anxiety, which had been exacerbated by the prospect of his father’s deportation. She said that since then his mother had left Australia and he had struggled emotionally. She said that [Mr C] was finding it difficult to cope since his mother’s departure. She recommended on compassionate grounds that his parents return as soon as possible as his mental health is worsening. At the hearing, [Mr A] mentioned that [Mr C] is not doing well at school and he got called by the school as [Mr C] has skipped school on occasion. He said that [Mr C] misses his mother terribly and cannot sleep. He is seeing a school counsellor and a counsellor in the community. He also mentioned that he cannot send [Mr C] to Fiji for a visit as he does not have a passport. As he is a minor they need his mother here, so he can organise this.

27. [Mr A] said in his submissions that his brother [Mr B] has experienced ‘chaos and instability’ and since his mother’s departure his health has deteriorated. He has lost interest in his part-time job at [Workplace 1], and always looks fearful, sad and distressed. He said that as an older brother he tries to help him but he cannot be a mother to him. He said that [Mr B] was diagnosed with Adjustment Disorder at the age of [age], and has refused to go to counselling. In submissions from the representative dated 30 June 2022, it was stated that [Mr B] was diagnosed with Adjustment Disorder in October 2018, requiring special care and attention from his family. A medical report was provided from [a named doctor] dated 9 October 2018. [The doctor] said that [Mr B] was suffering from Adjustment Disorder with Anxious Mood, ‘following an unexpected and sad news that his parents have to leave Australia for good’. He said that [Mr B] was born in Australia and used to be a ‘happy teenager busy with studies and Footy’. However his behaviour had changed significantly since his parents’ departure. He ‘remains within himself’ and takes no joy in school or footy, and no longer meets his friends. He had feelings of separation anxiety and ‘I don’t belong here’. He had been referred to a psychologist. At the hearing [Mr B] mentioned that he could not study as he tried to help [Mr A] look after [Mr C]. He said that he had spent his last few birthdays in tears and had separation anxiety from his mother.

28. [Mr A] said that he is ‘providing everything’ for his younger brothers ‘to the best of his ability’. He is an essential worker [at] [Workplace 1], responsible for [deleted] in the [area]. He said that the added responsibilities during the COVID-19 pandemic have added tremendous pressure on him. He mentioned that he is also heavily involved in various community projects providing support for disadvantaged and vulnerable members of the community. He works fulltime and on weekends and has less time for his brothers. He said that his mother took care of his brothers, their food, studies and other activities and he feels that he cannot play that role. He said that it is difficult for him juggling his job and looking after his brothers, whom he loves and wants to take care of, and speaking to his mother in Fiji. He would like to her to come and visit sporadically to assist with the care of the family. He said that he has no days off when he can switch off and relax. He said that the three boys have not seen their mother for two years. They know that his mother cannot stay in Australia, but he just wants her to visit.

29. [Mr A] said that his parents lived in Australia for 20 years and worked hard and were never a burden to the state. They brought up four law abiding Australian citizens. They had integrated well when they had to leave. He said that they are of excellent character and complied with Australian laws. They are caring and loving and the family has a special bond. He asked the Tribunal to consider the mental health of [Mr B] at the age of [age].

30. The visa applicant said that she ‘would not break the rules’ because she knows that she would not be able to return to Australia on other occasions if she did not return to Fijia at the cessation of her visa, in compliance with the visa conditions. She said that it is an incentive to return knowing she could get future visas.

31. The representative made reference in her request for priority processing (which was granted) to Article 3 of the Convention on the Rights of the Child, which states that in all actions concerning children, the best interests of the child shall be a primary consideration.

32. The Tribunal is satisfied after considering the clearly sincere and heartfelt testimony of the applicant and her sons at the hearing, that the sons in Australia genuinely require visits from their mother for their emotional and psychological wellbeing. Furthermore, their mother’s wish is to care for her children (she said that she was ‘desperate’ to help, having never left them previously), however she understands fully that if she does not comply with the terms of the visa, she will not be granted further visas. The Tribunal is satisfied that the purpose and proposed duration of her visit and her desire to care for her children is reasonable and consistent[3] with a temporary visit.

    Incentives

    [3] POLICY-MIGRATION REGULATIONS- OTHER -GenGuide H – Visitor Visas – Visa application and related procedures – ‘The genuine temporary stay requirement’ (re-issue date 10/9/16)

1. The Tribunal has also considered a number of incentives to return to Fiji[4]. It does appear that the visa applicant’s circumstances have changed and that while she initially wanted to remain in Australia, she has accepted that she could not get a protection visa and has settled into life in Fiji. Her husband is now living in Fiji and she wishes to return to him after her visit with her children. She explained to the Tribunal that she departed willingly from Australia to look after her husband who has diabetes. [Mr A] told the Tribunal that they sent [Mr B] to look after their father for a while and then he returned to Australia and now their mother needs to look after their father. The sons ‘fully understand the need to look after their father.’ The visa applicant said that her husband is ‘doing ok’ but she needs to check his sugar levels, cook for him, and make sure he takes his tablets. She said that they have three dogs which she looks after.

   [4] As suggested in POLICY-MIGRATION REGULATIONS- OTHER -GenGuide H – Visitor Visas – Visa application and related procedures – ‘The genuine temporary stay requirement’ (re-issue date 10/9/16)

2. The visa applicant also told the Tribunal that when she returned to Fiji her friends and family were very happy to see her and she has integrated back into the Fijian community well even though she had to leave her sons in Australia. She said that she and her husband own a property there and they farm vegetables and chickens. They sell any surplus and have also provided food for some young children. She said that they have a close and supportive community in Fiji and she attends church regularly. This was confirmed by [Mr A] who said that there was a great deal of uncertainty in her life the last 20 years, but since she returned voluntarily to Fiji, she has been more secure and happy, apart from being separated from her children.

3. The visa applicant also spends time with her other family members in Fiji, including her mother, daughter, brother, sister and her husband’s sister and brother. She takes care of her mother who is [age] years old, taking her shopping, socialising with her and making food for her. She also takes her to medical appointments. She gets together with her family members for birthdays and casually on Saturdays, cooking and enjoying time together.

4. Notwithstanding that the visa applicant’s three sons reside in Australia, the Tribunal is satisfied that there are significant incentives for the visa applicant to return to Fiji at the end of her visit, including her husband, daughter and mother, and her community in Fiji and her mother and husband’s need for medical assistance.

   Conclusions

5. Considering the findings that the applicant complied with conditions of her last visa, that the Tribunal is satisfied that she intends to comply with conditions of her visa, the strong compassionate need for visits with her children, and the incentives to return to Fiji, the Tribunal is satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, and finds that the requirements of cl 600.211 are met.

   DECISION

6. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

   ·cl 600.211 of Schedule 2 to the Regulations.

   Jane Marquard
   Member