Huynh (Migration)

[2021] AATA 4260

Huynh (Migration) [2021] AATA 4260 (30 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Van Bich Thi Huynh

VISA APPLICANT:  Mr Thanh Tuan Huynh

CASE NUMBER:  1905465

HOME AFFAIRS REFERENCE(S):          BCC2018/5392696

MEMBER:Donna Petrovich

DATE:30 August 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 30 August 2021 at 1:08pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine temporary entrant – intention to comply with visa conditions – must not remain in Australia after end of permitted stay – risk of overstay and non-compliance – family’s ongoing need for support – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211

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 23 January 2019 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 applied for the visa on 1 December 2018. 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 Sponsored Family stream.

3. 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.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.211 because the delegate was not satisfied that the applicant sufficiently demonstrated that he intends to genuinely stay temporarily in Australia.

5. The review applicant appeared before the Tribunal on 4 August 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s representative, Ms Sandra Margaret Tempest. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

6. The review applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether cl 600.211 is met, which 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.

9. In the present case, the visa applicant seeks the visa for the purposes of visiting the review applicant and her family. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

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 has not travelled to Australia previously and has not provided any evidence of previous travel. The visa applicant provided the Tribunal with a copy of his passport but did not provide any evidence with respect to previous visa compliance. Therefore, there is no evidence before the Tribunal of non-compliance.

12. The review applicant provided evidence to the Tribunal of her desire for her brother and his 20 year old daughter to come to Australia, and extensive evidence in relation to her family situation.

13. The evidence submitted to the Tribunal with respect to the review applicant’s 9- year old autistic child included a NDIS report, a Department of Education and Training Autism Spectrum Disorder summary report, an occupational therapy report, and a speech pathologist support letter. The evidence submitted with respect to the review applicant’s drug dependent husband included a psychiatric report. Witness statements were also submitted to the Tribunal in support of the review applicant.

14. 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 would be subject are as follows (cl 600.612):

    ·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.

    8101

15. The Tribunal was not able to hear from the visa applicant who did not appear before the Tribunal at hearing but was told by the review applicant that her brother worked as a gardener and also in security in his home country. The Tribunal was told by the review applicant that the visa applicants’ daughter was a beautician and worked in a nail salon.

16. The Tribunal heard from the review applicant that the visa applicant and his daughter would be coming to provide assistance to her for three months only, and that they would then return home.

17. The Tribunal, in considering this, is not satisfied that there is sufficient evidence provided to the Tribunal that the visa applicant would not work whilst in Australia and therefore places no weight in favour of the visa applicant in this regard.

    8201

18. The Tribunal in considering whether the visa applicant will pursue a course of study whilst in Australia was not provided with sufficient evidence that this would not be the case, and therefore the Tribunal does not place any weight in favour of the visa applicant in this regard.

    8503

19. The Tribunal was not provided evidence which would indicate a desire to apply for a substantive visa, or evidence in relation to a protection visa, while in Australia. The Tribunal gives no weight in this regard.

    8531

20. The Tribunal has considered the circumstances of the review applicant and her family and is not satisfied that there is sufficient evidence to strongly support that the visa applicant will not remain in Australia after the end of the permitted stay. The Tribunal places no weight in favour of the visa applicant in this regard.  

21. The Tribunal has also considered all other relevant matters (cl 600.211(c)). The Tribunal heard in evidence from the review applicant of her issues with depression and her desire for support from a family member. She told the Tribunal that she has no family support and is the primary caregiver for her autistic son and her husband who is drug dependant and currently undertaking methadone treatment, which prevents him from taking medication for schizophrenia. 

22. The applicant does receive some respite care for her son, but the Tribunal heard that when this is the case she then uses this time to take her husband to his medical appointments and attend the chemist for his methadone treatment. The Tribunal has regard for the review applicants’ circumstances and demands placed upon her as carer for both her disabled son and her drug affected husband.

23. The Tribunal received extensive submissions in relation to the review applicant’s autistic son, reports relating to her husband’s mental health and addiction, and submissions regarding the difficulty being experienced by the review applicant in dealing with the complex needs of her two family members and her own mental health. The Tribunal in considering the submissions provided by the review applicant about her circumstances has sympathy for her situation, and accepts the evidence provided in relation to her and her family. In this case, the Tribunal recognises the ongoing nature of this family’s need for support and is concerned that a three month visit will not be sufficient as these issues are ongoing and therefore the risk of overstay and non-compliance is substantial. The Tribunal in considering these circumstances places no weight in favour of the visa applicant in this regard.

24. The Tribunal has considered the difficulties and demands that the review applicant is facing and acknowledges the circumstances facing her in her day to day life as a result of her being a caregiver for her disabled son and drug affected husband. Availability of respite and support for caregivers is a well recognised issue, and the Tribunal is sympathetic to caregivers in this position. However, in assessing the evidence in relation to the visa applicant the Tribunal has not been convinced that there is sufficient evidence provided to satisfy the Tribunal that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

25. For the above reasons the Tribunal is not 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 not met.

    DECISION

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

    Donna Petrovich
    Member