Mai (Migration)

[2024] AATA 4048

Mai (Migration) [2024] AATA 4048 (10 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Phuong Thao Mai

CASE NUMBER:  2310156

HOME AFFAIRS REFERENCE(S):          BCC2023/2641722

MEMBER:Member Nathan Goetz

DATE:10 October 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision of the delegate of the delegate dated 23 June 2023 refusing to grant the applicant a Visitor (class FA) Visitor (Tourist) (subclass 600) visa and remits the visa application back to the delegate for reconsideration, with a direction that the applicant satisfies the following criteria for the grant of the visa:

· Clause 600.215 of Schedule 2 to the Migration Regulations 1994 (Cth)

Statement made on 10 October 2024 at 4:54pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – children are Australian citizens – applicant’s child’s condition is a serious medical condition – exceptional circumstances are present – significant carer responsibilities – decision under review remitted 

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 600.215

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made under s 65 of the Migration Act 1958 (Cth) (the Act) by a delegate of the Minister who refused to grant the applicant a Visitor (class FA) Visitor (Tourist) (subclass 600) visa.

2. The applicant was not represented in the review.

   BACKGROUND AND CRITERIA FOR THE VISA

3. On 3 May 2023 the applicant applied for the visa. At the time of visa application, the Class FA visa had one subclass 600 with several different streams. The applicant applied for the visa in the tourist stream.

4. The criteria for the grant of the Class FA visa are contained in cl 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

5. On 23 June 2023 the delegate refused to grant the applicant the visa. The delegate found that the applicant did not satisfy cl 600.215 of Schedule 2 to the Regulations.

6. This clause provides the following:

   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) visa;

   (d) a bridging visa.

7. On 11 July 2023 an application was made to the Tribunal for review of the decision. In the visa application form, the applicant indicated she resided in Mitcham, Victoria.

8. On 4 September 2024 the Tribunal wrote to the applicant under s 360(1) of the Act and invited the applicant to appear at a Tribunal hearing scheduled to commence at 11:00am on 11 October 2024 via MS Teams.

9. On 7 October 2024 the applicant wrote to the Tribunal indicating that she would participate in the Tribunal hearing.

10. The Tribunal considered the material provided in the visa application and the material provided in the review. Having considered the material, the Tribunal is satisfied that it can make a decision on the review that is favourable to the applicant. In those circumstances, the Tribunal is no longer able to hold a Tribunal hearing: s 360(2)(a) of the Act.

11. Accordingly, the Tribunal hearing was cancelled and the Tribunal has made a decision on the review.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the review is whether the applicant satisfies cl 600.215 of Schedule 2 to the Regulations.

13. If the Tribunal finds that the applicant satisfies cl 600.215 of Schedule 2 to the Regulations, the correct or preferable decision is to set aside the decision of the delegate and remit the visa application back to the delegate for reconsideration with a direction that the applicant satisfies cl 600.215 of Schedule 2 to the Regulations.

14. If the Tribunal finds that the applicant does not satisfy cl 600.215 of Schedule 2 to the Regulations, the correct or preferable decision is to affirm the decision of the delegate.

15. The Tribunal has considered all the material provided in support of the visa application and the review application. That material can be summarised as follows:

16. The applicant provided a completed visa application form where she indicated that she is a female citizen of Vietnam who was born on 6 October 1976 in that country and is presently located in Australia, but her usual country of residence is Vietnam. She holds a Vietnamese passport issued on 1 March 2023 valid until 6 October 2036. She identified that she is divorced and that her address in Vietnam is 89 Phan Khiem Ich Street. District 7, Ho Chi Minh city, Vietnam. The applicant provided a copy of her Vietnamese passport.

17. In the visa application form, the applicant detailed her employment in Vietnam as ‘other.’ Her employment was derived from rent she obtained from a property in Vietnam. She detailed that funding for her stay in Australia would be met from savings, available credit, and rental income from the Vietnam property. She provided documents to corroborate her savings, available credit and that she operates a business letting a house for rent in Vietnam. The address for this property was identified 89 Phan Khiem Ich Street. District 7, Ho Chi Minh city, Vietnam which the registration document also identifies as the applicant’s residential address.

18. The applicant identified that she had a daughter Miss Tristina Pham, born on 19 October 2003, and a daughter Miss Jenny Pham born on 3 November 2008 in Australia. She identified her children as Australian citizens.

19. Department records show that the applicant was offshore and granted a visitor visa on 18 April 2012 to come to Australia. She arrived in Australia on 12 May 2012 and departed on 31 May 2012. On 31 May 2012 that visa ceased.

20. On 4 August 2017 the applicant was offshore and granted a visitor visa to come to Australia. On 14 August 2017 she arrived in Australia; on 12 November 2017 she departed Australia; on 10 February 2018 she arrived in Australia; on 6 May 2018 she departed Australia; 23 May 2018 she arrived in Australia and on 19 August 2018 she departed Australia. On 19 August 2018 that visa ceased.

21. On 18 April 2018 the applicant applied for a migrant/contributory parent visa. No decision has been made to date about this visa application.

22. On 29 August 2018 the applicant was offshore and granted a visitor visa to come to Australia. On 25 November 2018 she arrived in Australia; on 9 March 2019 she departed Australia; on 31 March 2019 she arrived in Australia; on 22 June 2019 she departed Australia; on 7 July 2019 she arrived in Australia; on 21 September 2019 she departed Australia; on 8 October 2019 she arrived in Australia and on 12 December 2019 she departed Australia. On 12 December 2019 that visa ceased.

23. On 17 February 2020 the applicant was offshore and granted a visitor visa to come to Australia. On 3 March 2020 she arrived in Australia. On 3 June 2020 that visa ceased.

24. On 9 May 2020 the applicant was granted a bridging A visa. That visa ceased on 9 July 2020.

25. On 9 July 2020 the applicant was granted a visitor visa. That visa ceased on 3 July 2021.

26. On 17 February 2021 the applicant was granted a bridging A visa. That visa ceased on 26 May 2021.

27. On 26 May 2021 the applicant was granted a visitor visa. That visa ceased on 16 November 2021.

28. On 14 November 2021 the applicant was granted a bridging A visa. That visa ceased on 11 November 2022.

29. On 11 November 2022 the applicant was granted a visitor visa. That visa ceased on 11 May 2023. During the currency of that visa, the applicant departed Australia on 6 February 2023 and returned on 1 March 2023. The applicant has remained in Australia since that arrival.

30. On 3 May 2023 the applicant was granted a bridging A visa in connection her application for the visitor visa that is the subject of the review. The applicant continues to hold this visa.

31. On 5 September 2024 the applicant applied for a combined partner visa application. In that application, the sponsor for the partner visa is Mr Alex Pham.

32. Department records show that Miss Tristina Pham (Miss Tristina) became an Australian citizen on 4 February 2019. She was born in Vietnam and came to Australia on 9 July 2013 on a visitor visa. On 4 March 2015 she was granted a temporary partner visa and on 16 August 2017 prior to becoming an Australian citizen. The father in the temporary partner visa application is Mr Alex Pham.

33. Department records show that Miss Jenny Pham (Miss Jenny) became an Australian citizen on 4 February 2019. She was born in Vietnam and came to Australia on 9 July 2013 on a visitor visa. On 4 March 2015 she was granted a temporary partner visa and on 16 August 2017 prior to becoming an Australian citizen. The father in the temporary partner visa application is Mr Alex Pham.

34. In the visa application form, the applicant indicated that she wished a further stay in Australia up to 2 May 2024. She declared that she would like to stay with her children, noting that Miss Jenny is attending the Heatherwood Special School for her intellectual disability. The applicant declared that Miss Jenny needed help with her daily development to overcome life’s challenges and to assist her to grow into an independent person.

35. In the course of the review, the applicant provided the following documents:

    ·     A letter dated 5 September 2024 from Ms Jenni Hoffner, who is identified as a social worker and mental health practitioner at the Emerson School. The letter detailed that Miss Jenny was a full-time student at that school from 2019 to 2022 and that the school provides a specialist setting for students with mild intellectual disability between the ranges of 50-70 FSIQ. The letter identified that Miss Jenny has an FSIQ of 56 and experiences a range of difficulties with require ongoing support from family.

    The letter detailed the assistance that Miss Jenny requires and noted that Miss Jenny is predominately reliant on her mother for all problem solving and decision making as Miss Jenny’s father works long hours. The social worker recommended that Miss Jenny receives ongoing support from the applicant who is identified as her primary carer.

    ·     A letter (undated) from Ms Michelle Cao, who is identified as an occupational therapist from OT Team Lead from Connect Therapy Solution Australia. The letter detailed the importance of the applicant’s mother supporting Miss Jenny, noting Miss Jenn’s intellectual disability and language delay by her paediatrician.

    The letter detailed that Miss Jenny is also a participant in the National Disability Insurance Scheme (NDIS) and that the author of the letter has been working as Miss Jenny’s occupational therapist since 2023. The letter detailed that the applicant plays an essential role in Miss Jenny’s physical, emotional and development well-being and that the applicant’s presence in Australia is indispensable to Miss Jenny’s current and future stability and development.

    ·     A letter dated 2 September 2024 from Miss Tristina, who wrote a letter to support her mother’s partner visa application. It repeated the information about Miss Jenny’s intellectual disability and noted that Miss Jenny shares a strong bond with the applicant, learning skills like cooking and money management.

    Miss Tristina noted that since Miss Tristina moved to Australia, she took on a carer’s role for Miss Jenny, and shared house chores with her father but often had to call the applicant in Vietnam for help when Miss Jenny would not cooperate which was challenging with different time zones. Miss Tristina noted that this was now becoming difficult because Miss Tristina intended to move out of the family home and that Miss Jenny would be left alone as their father works long hours. Miss Tristina indicated her desire for the applicant to be in Australia permanently as a happy family.

36. The delegate decision record noted that the visitor visa program is designed to allow tourist an opportunity to travel to Australia temporarily for the purpose of genuine tourist activities and is not designed to allow people to maintain ongoing residence in Australia on ‘rolling’ visitor visas. However, the visa was not refused on the basis that the applicant did not genuinely intend to stay temporarily in Australia per cl 600.211 of Schedule 2 to the Regulations. The visa was refused on the basis that the applicant did not satisfy cl 600.215 of Schedule 2 to the Regulations. The decision record noted that the delegate considered the applicant’s claims and supporting evidence but did not find that exceptional circumstances exist for the grant of the visa.

37. According to the Department’s procedural instruction dated 4 October 2024 (VM-3190) which provides policy guidance on the legal requirements for the grant of visitor visa, exceptional circumstances are not defined in the Regulations and should be given their ordinary dictionary meaning which may include:

    ·     an unanticipated change in an applicant’s circumstances (or the circumstances of an Australian citizen or permanent resident) that are beyond the applicant’s control and are extraordinary; or

    ·     if an applicant is required to stay in Australia to provide assistance or support due to the death, serious illness or serious medical condition of a member of the applicant’s close family in Australia.

38. Although the Tribunal is not bound by these guidelines, the guidelines should be taken into consideration to provide consistency in decision-making.

    FINDINGS AND REASONS

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

40. The Tribunal accepts that the visa applicant has a long history of travelling to Australia, and that she last arrived in Australia on 1 March 2023, meaning that at the time the Tribunal makes a decision, the applicant has been in Australia consistently for about 19 months.

41. The Tribunal notes the applicant’s migration history which does demonstrate a willingness to depart Australia in accordance with visa conditions, and an ability to lodge offshore visa applications. The Tribunal also notes that from the period of 11 July 2023 (when the applicant lodged the review with the Tribunal) until 10 October 2024 (a period of 15 months) has been a result of the review application being pending. The Tribunal notes that the applicant applied for the visitor visa while she had been in Australia for approximately two months and that, had she requested a stay in the visa application form for only six months, it would appear that the issue of whether the applicant satisfied cl 602.215 of Schedule 2 to the Act would not have arisen.

42. However, the circumstances concerning the applicant’s youngest daughter are not circumstances that would ordinarily face applicant’s for visitor visas to come to Australia, as most visa applicants come to Australia and do not have significant carer responsibilities such as this applicant.

43. The Tribunal takes into account that if the visitor visa is refused, an Australian citizen will be deprived on the level of care that is currently being provided to her via the applicant who does not work in Australia and has the primary responsibility of assisting her Australian citizen child because of the child’s father’s work commitments. The Tribunal is satisfied that the applicant’s child’s condition is a serious medical condition as envisaged by the Department policy and that, in the circumstances of this particular applicant, exceptional circumstances, being circumstances out of the ordinary, are present.

44. For those reasons, the Tribunal finds that the applicant satisfies cl 600.215 of Schedule 2 to the Regulations.

    DECISION

45. The Tribunal sets aside the decision of the delegate of the delegate dated 23 June 2023 refusing to grant the applicant a Visitor (class FA) Visitor (Tourist) (subclass 600) visa and remits the visa application back to the delegate for reconsideration, with a direction that the applicant satisfies the following criteria for the grant of the visa:

    · Clause 600.215 of Schedule 2 to the Migration Regulations 1994 (Cth)

    Nathan Goetz

    
    

    Member