Muscat (Migration)

[2021] AATA 4122

Muscat (Migration) [2021] AATA 4122 (18 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Elaine Muscat

CASE NUMBER:  1925156

HOME AFFAIRS REFERENCE(S):          BCC2019/4022918

MEMBER:Rosa Gagliardi

DATE:18 October 2021

PLACE OF DECISION:  Australian Capital Territory

DECISION:The Tribunal remits the decision not to grant the
visa applicant a Visitor (Class FA) visa with the direction the applicant meets:

·cl.600.215 of the Regulations.

Statement made on 18 October 2021 at 4:59pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – stay in Australia for over 12 months – exceptional circumstances – assistance with child care – dire COVID19 situation in Brazil – applicant’s arrangements for vaccination against COVID19 – factors beyond the applicant’s control – property ownership in Brazil – family in other countries – decision under review remitted          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.215

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 22 August 2019 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 14 August 2019. The delegate refused to grant the visa on the basis that it was considered that there were not exceptional circumstances exist for the grant of the visa.

3. The applicant appeared before the Tribunal on 23 August 2021 to give evidence and present arguments. The Tribunal also received oral evidence from her daughter, Ms Da Silva who invited the applicant for a stay in Australia.

4. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The applicant last arrived in Australia on 10 September 2018 as the holder of a Visitor visa (Tourist Stream)(FA600) which was in effect until 10 September 2019. The applicant  remained in Australia continuously since her last arrival on 10 September 2018.

7. On 14 August 2019 the applicant lodged an application for a Visitor visa (Tourist Stream) (FA600) via the internet. The applicant requested a further stay until 14 August 2020, which would have resulted in the applicant staying in Australia for a total period exceeding 12 consecutive months. To satisfy the requirements for the grant of a visitor visa, the applicant is required to demonstrate that exceptional circumstances exist for grant of the visa.

8. The applicant is therefore required to meet cl.600.215:

   600.215
   (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) visa;
   (d) a bridging visa.

9. Initially the applicant had come to Australia to assist her daughter look after her young son and to provide support to her daughter and partner while they went to work.  At hearing the Tribunal observed that at the time of application, the applicant had initially wanted to stay in Australia until 14 August 2020.  Now by the time of hearing, it had been a year after her initial request for an extension to her visa, and she had been the beneficiary of that additional year in Australia and it was unclear why the applicant needed the visa.  Her daughter would have been required to find a durable solution to care of her child after such time, as a Visitor visa was not an indefinite visa to care for grandchildren or for any other purpose.

10. The applicant gave evidence that she continued to remain on a Bridging visa while waiting for review of her application.  In that time Covid-19 had taken a trajectory for the worse, especially in Brazil, her home country.  She stated that the situation in Brazil was dire and that her family had known of someone who had had the virus and been seriously affected. 

11. The country information below sets out the seriousness of the spread of the Covid virus in its varying mutations in Brazil and its consequences on the health system:

    Brazil has long been a pariah in the pandemic, but the consequences of its failure to control SARS-CoV-2 are manifesting across Latin America, writes Luke Taylor
    
    
    When Brazil’s pandemic spiralled out of control in March 2021, leaders across South America scrambled to limit the regional fallout. From Colombia to Uruguay, flights were grounded, land borders were closed, and regional sports tournaments were cancelled in an effort to stop the spread of the more transmissible P.1 variant that had brought one of the region’s strongest health systems to the brink of collapse.

    However, those actions have not prevented the spread of P.1, with the variant exploiting the favourable conditions created by recent relaxations of health measures.

    Countries such as Chile and Uruguay, previously considered models of how to manage the pandemic effectively, have lost control of it. Uruguay recorded the lowest number of cases per capita in South America in 2020 as a result of widespread testing, swift contact tracing, and strong public compliance with social distancing…But on 22 April 2021 it recorded 22.17 daily deaths per 100 000 people, the highest rate in the region...
    ……

    Around 400 000 Brazilians have now died from covid-19—13% of the world’s covid-19 deaths and more than the country’s entire AIDS epidemic.

    Epidemiologists say poverty, multigenerational housing, and informal labour have hindered the public health response, as they have across South America. But a large slice of the blame is put squarely on Brazil’s outspoken president, Jair Bolsonaro, who continues to play down the threat of the virus, promote unproved cures, and refuse national lockdowns, which he says will harm the economy. A parliamentary inquiry that could lead to Bolsonaro’s impeachment was opened on 27 April to investigate his administration’s role in the public health crisis.

    “We couldn’t save lives nor the economy … It was a double and disastrous defeat for Brazil,” says Jesem Orellana, an epidemiologist at the Oswaldo Cruz Foundation (Fiocruz). Public health experts say the lacklustre response allowed the virus to spread rampantly, which caused unnecessary deaths and hospitals to collapse. This in turn allowed new, more dangerous variants of the coronavirus to evolve and spread throughout the country.

    “We knew the direction in which Brazil was heading, but none of us knew it could get this bad,” says Natalia Pasternak, a microbiologist and president of the Question of Science Institute in Saõ Paulo. More than half of the country’s covid-19 deaths were recorded in the third wave of the pandemic, fuelled by the P.1 variant, which is believed to have emerged in the Amazonian city of Manaus, Brazil, in November 2020.  Studies suggest that it is 1.7 to 2.4 times more transmissible than previous variants and better at evading immunity from infection. Venezuelan president Nicolas Maduro labelled Brazil “the world’s worst threat in terms of the coronavirus” on 21 March and criticised Bolsonaro for his “irresponsible attitude.” Maduro himself has faced criticism—Venezuela’s health system was predicted to buckle quickly under the strain of the pandemic owing to the country’s economic collapse. But ironically, this may have helped, say experts, as petrol shortages have reduced mobility and thus virus transmission.

    Venezuela’s government relaxed lockdowns in December, but new infections subsequently spiked. Julio Castro, an infectious diseases expert in Caracas, believes that easing of restrictions was the key driver of transmission. He had been hesitant to attribute recent increases in cases to the P.1 variant, but says its impact has become clearer in recent weeks: “Most of the transmission appears to be the Brazilian P.1 variant and it’s growing.”

    To prevent P.1 and more than 90 other variants circulating in Brazil from spreading, its neighbours tried to close themselves off from it. Argentina, Colombia, and Peru banned flights from the regional pariah, and most of the countries straddling the region’s longest land border have shut it off. Brazilian sports teams had to pull out of regional competitions as they were not permitted to land in Colombia despite Brazil having a travel bubble arrangement in place.

    Colombia prioritised its Amazon region for scarce vaccine supplies so it could create what its health ministry has called an “epidemiological barrier” on the frontier with Brazil to prevent P.1 slipping through the border. This may have lowered transmission there, but it has not prevented the spread of the new lineage to Bogotá and beyond…[1]

    [1] ‘Covid-19: How the Brazil variant took hold of South America’, accessed on 18 October 2021.

12. And further:

    Hospitals across Brazil are on the brink of collapse as the country faces the worst chapter of its pandemic yet.

    Out of the country’s 26 states, 24 have 80% or more of their covid-19 intensive care beds occupied and 15 states have at least 90%, according to Fiocruz, a Brazilian health institute, in a bulletin published on 17 March.  The pandemic is causing “an extremely critical situation across the country” and “the biggest health system collapse in the history of Brazil.”

    Last week saw the highest mortality in the country since the pandemic began, with daily deaths regularly exceeding 2000 and reaching a record high of 2841 on 16 March.

    To slow the spread of the coronavirus and ease pressure on hospitals, experts at Fiocruz called for non-essential activities to be restricted, greater enforcement of social distancing and mask wearing, and an acceleration of the vaccination campaign.

    President Jair Bolsonaro has refused to act on the latest calls for a national lockdown, saying it would damage the economy and calling regional governors who enforced local lockdowns “tyrants.” It is the latest in the political feud between Bolsonaro, who has consistently played down the threat of the coronavirus, and governors of cities and states requesting more radical action and support.

    João Doria, the governor of São Paulo who closed the city’s non-essential businesses on
    6 March, blamed the president for the ongoing crisis. His “denialism” has contributed to cases surging, a stuttering vaccination campaign, and shortage of syringes and intensive care beds, Doria told the BBC on 5 March. “There is no national coordination to combat the pandemic in Brazil,” he said.

    Brazil has recorded more than 12 million covid-19 cases and 295 000 deaths, the second highest numbers in the world after the US. The country’s population of 212 million and socioeconomic factors like multigenerational housing and poverty have aided the virus’ spread but mortality is particularly high. Nearly eight out of 10 Brazilians intubated in the past year have died, according to Fiocruz. The world average is around five out of 10.
    
    

    While Brazil’s vaccination campaign has been rolled out only 6% of the population has been vaccinated—ahead of some South American countries but behind Europe and North America. It has not proved enough to slow virus transmission, which could be accelerated by the variant known as P.1.
    
    
    P.1 is suspected to have emerged in the city of Manaus in the Brazilian Amazon in November 2020 before it caused hospitals there to collapse in January 2021 and spread to the rest of the country. Studies suggest that P.1 spreads and evades antibodies more easily than previous variants.
    
    

    Bolsonaro has set the task of bringing the virus under control to a new health minister, Marcelo Queiroga, the fourth to hold the office since the pandemic began, and like his predecessor, military general Eduardo Pazuello, a close ally of Bolsonaro. The cardiologist has ruled out implementing a national lockdown and is unlikely to bring the pandemic under control, says Paulo Lotufo, an epidemiologist at the University of São Paulo, who doubts the minister’s autonomy.

    “I have no hope in Queiroga,” Lotufo says. “There is only one boss in Brazil: Bolsonaro. The solution is to impeach him.”[2]

    [2] ‘Covid-19: Brazil’s hospitals close to collapse as cases reach record highs’, 23 March 2021, accessed on 18 October 2021.

13. It was argued that currently there were exceptional circumstances for the grant of the visa.  On the basis of the above country information, the Tribunal accepts that the applicant’s fear of returning to Brazil without being vaccinated, represents a real threat to her person.  The Tribunal accepts that such fears are not simply subjective.  The applicant at the time of hearing had not had any vaccination against Covid-19.  This was due to factors beyond her control.  The applicant had caught influenza and had only just recovered.  There were concerns that given the applicant’s age, having the vaccine while unwell was not optimal.  

14. Arrangements were now in place to enable the applicant to be vaccinated and then she would return home.  While the vaccination would not be total protection given she had to fly for a lengthy period, and given the situation in Brazil, at least it offered some comfort to the applicant and her daughter, that she would be able to have a fighting chance were the applicant to contract the virus.  The Tribunal concurs with this assessment that a further visa to enable the applicant to be fully vaccinated represents exceptional circumstances for the grant of the visa.  The applicant has now had an opportunity to obtain her first dose of a vaccine and her second dose will not be far off.

15. The Tribunal is particularly persuaded that exceptional circumstances for the grant of the visa exist because the applicant is pre-diabetic and has been a long-term smoker, which have compromised her immune system and would make her particularly vulnerable to the virus in its various manifestations in Brazil without vaccination.

16. The applicant assured the Tribunal she had no intention of remaining in Australia indefinitely as she had a son in Brazil and three grandchildren.  They were just as important to her as her Australian grandchild.  She also owns property in Brazil.  Another daughter lives in Portugal and the applicant was not in a position to prioritise being with her daughter in Australia.  The Tribunal was convinced by the applicant’s and her daughter’s claims that they were not attempting to achieve a long-term migration outcome for the applicant.  All they wanted was for her to be fully vaccinated and to return to Brazil with at least some form of protection.

    Conclusion

17. Having considered the evidence carefully, the Tribunal is satisfied that in this case there are exceptional circumstances for the grant of the visa

    DECISION

18. The Tribunal remits the decision not to grant the visa applicant a Visitor (Class FA) visa with the direction the applicant meets:

    ·            

    cl.600.215 of the Regulations.

    
    
    

    Rosa Gagliardi

    
    

    Member