Nguyen (Migration)

[2021] AATA 5423

Nguyen (Migration) [2021] AATA 5423 (15 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Vinh Thi Nguyen

CASE NUMBER:  2006093

HOME AFFAIRS REFERENCE(S):          BCC2020/204583

MEMBER:Naomi Schmitz

DATE:15 December 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 15 December 2021 at 12:37pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – tourist stream– applicant had stayed in Australia for a total period of more than 12 consecutive months – exceptional circumstances don’t exist –visa applicant has remained onshore continuously for approximately three and a half years – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 600.215

CASES
An v Minister for Immigration and Citizenship [2007] FCAFC 97
Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 918

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 9 March 2020 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 28 January 2020. 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 visa applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream.

3. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl. 600.215 which required that an applicant who applied for a subclass 600 (Visitor) visa in Australia, and for whom the grant of a further visa would result in that applicant staying in Australia consecutively for more than 12 months, had to demonstrate that exceptional circumstances existed for the grant of the visa.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.215. The delegate found that the applicant had not met the requirements of 600.215 because she had not demonstrated exceptional circumstances for the grant of the visa.

5. The visa applicant appeared before the Tribunal on 13 December 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant’s daughter Ms Nguyen and son-in-law Mr Capalb. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

6. The Tribunal exercised its discretion to hold the hearing by Microsoft Teams. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by Microsoft Teams, having regard to the nature of this matter and the individual circumstances of the visa applicant and Ms Nguyen who have relocated from Melbourne to Brisbane and are only able to provide evidence ‘virtually’. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by Microsoft Teams. No concerns were expressed by the review applicant or visa applicant about the hearing being conducted in this manner, nor was there any indication that the review applicant or visa applicant had any difficulty in understanding or responding to the questions being put during the hearing.

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

   BACKGROUND and EVIDENCE AT HEARING

8. After this matter was constituted to the Tribunal Member on 26 November 2021, the Tribunal wrote to Mr Capalb and requested that the following be provided by 6 December 2021; any evidence in support as to why exceptional circumstances exist for the grant of the visa applicant’s visa pursuant to cl.600.215 of the Migration Regulations 1994 (Cth).

9. The Tribunal did not receive any evidence in support of the application for review.

10. The visa applicant is a 66-year-old citizen of Vietnam who arrived in Australia on 2 August 2018 as the holder of an FA-600 Tourist Visa. The visa applicant gave evidence that the purpose of her original visit was to assist her daughter whilst she was pregnant with her first child and stay for six months. The visa applicant’s daughter gave birth to her first and only child on 15 July 2019. The child is currently aged two years and five months.

11. The visa applicant gave evidence that she made two subsequent applications for a FA600 Visitor visas (Tourist Stream) pursuant to cl 600.215. The basis for these prior claims was that her daughter was a first-time mother, with a newborn baby, adjusting to motherhood and the visa applicant wished to extend her stay to provide care and support to her daughter and grandchild. Travel movement records obtained by the Tribunal show that she obtained a second Visitor visa on 21 January 2019 which was valid until 2 August 2019 and a third Visitor visa on 14 August 2019 which ceased on 2 February 2020. These records were put to the visa applicant at the hearing who confirmed they were correct. The Tribunal also notes these two previous visa grants were referred to in the Delegate’s decision, a copy of which was provided to the Tribunal by the visa applicant.

12. To satisfy the requirements for the grant of a Visitor visa, the applicant is required to demonstrate that exceptional circumstances exist for the grant of the visa.

13. On 28 January 2020, the visa applicant requested a further stay of up to 12 months until 28 January 2021, which would result in the visa applicant being authorised to remain in Australia for a total period exceeding 12 consecutive months. The visa applicant provided the following reasons for her further stay:

    ‘My wife is in constant back pain, sleep deprivation, pre-natal depression and no time even to eat, drink due to my daughter’s high demand of daily caring. We need aid with childcare, respite from the emotional rollercoaster and my mother-in-law is a family member that wants to aid our situation’.

14. At the hearing, the visa applicant gave evidence that she wanted to stay a further six to 12 months, bringing her stay to June or December 2022. She sought the visa to provide care and support to her daughter and grandchild. She also sought the visa due to an alleged COVID-19 outbreak in Vietnam and to allow time to receive the COVID-19 booster shot. She stated she is fully vaccinated, receiving her second COVID-19 vaccination on 21 October 2021, making her eligible for the COVID-19 booster shot in March 2022.[1] 

    [1]

15. The visa applicant also claimed that her daughter was suffering from ‘medical conditions’. The Tribunal Member asked Ms Nguyen what conditions she was suffering from. Ms Nguyen stated that since being administered an epidural when giving birth, she has suffered from back pain. She also claimed she suffered a ‘little bit’ from depression. The Tribunal Member asked Ms Nguyen if she had sought any medical treatment or diagnosis for her alleged backpain and depression, such as consulting a doctor, physiotherapist, psychologist or psychiatrist. The Tribunal Member also asked if she was taking any prescription medication such as pain killers or anti-depressants. Ms Nguyen confirmed that she had not sought any medical treatment and was not taking any medication. The Tribunal Member also asked Ms Nguyen if her child suffered from any medical condition or had special needs, such as a disability. Ms Nguyen replied that her child had no such issues. No medical evidence was submitted in support of Ms Nguyen suffering from any medical conditions.

16. The Tribunal Member asked the visa applicant, Ms Nguyen and Mr Capalb what childcare arrangements if any, had made since the visa applicant’s visa application. All witnesses confirmed that no childcare arrangements had been undertaken. The Tribunal Member put to them that they have had ample opportunity, given the child is now almost two and half years of age and eligible for childcare, the large range of childcare providers and childcare subsidies available to parents.

17. Mr Capalb then gave evidence that he did not want his child to attend childcare because of COVID-19 and stated that family is more important for self-healing. He also claimed he needed his mother-in-law to provide childcare as his parents were both deceased and he was not on speaking terms with the remainder of his family in Melbourne. Ms Nguyen gave evidence that her husband’s mother passed away in 2009 and his father in 2016..

18. The visa applicant gave evidence that she, Ms Nguyen and Mr Capalb relocated from Melbourne to Brisbane in July 2021, as the warmer weather is better for the visa applicant’s health. She also stated that her daughter is currently unemployed, does not own a car, does not have a drivers licence and cannot drive. Mr Capalb is currently undertaking a PhD.

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. The issue in this matter is whether cl.600.215 is met for the grant of a visa.

20. The criteria for a subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.600.215, which requires exceptional circumstances for the grant of the visa where the visa would result in the applicant being authorised to stay in Australia as the holder of one or more of the specified visas for a total period of more than 12 consecutive months.

21. The Tribunal finds that the visa applicant entered Australia on 2 August 2018 as the holder of a FA-600 visitor (Tourism Stream) visa. She was granted two further Visitor visas. She has remained onshore continuously for approximately three and a half years. Accordingly, the Tribunal finds that the grant of the visa sought would result in the applicant being authorised to stay in Australia as the holder of one or more of the specified visas for a total period of more than 12 consecutive months.

22. As discussed with the visa applicant, Ms Nguyen and Mr Capalb at hearing, the term 'exceptional' is not defined in the legislation and is given its ordinary English meaning. The Macquarie Dictionary refers to 'exceptional' as 'forming an exception or unusual instance, unusual, extraordinary'.

23. The Tribunal is not aware of any specific relevant court authority on the meaning of ‘exceptional circumstances’ in the context of cl.600.215. However, the meaning of exceptional circumstances has been considered in the context of other visa criteria. In An v Minister for Immigration and Citizenship [2007] FCAFC 97 the majority of the Full Federal Court (per Emmett and Lindgren JJ) held that ‘exceptional circumstances’ is a simple, non-technical phrase and should be understood as meaning unusual or atypical.

24. The meaning of ‘exceptional circumstances’ in the context of section 137L of the Act was considered by Walters J in Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 918. In particular, the court referred with approval to the comments of Kiefel J in Hatcher v Cohn [2004] FCA 1548 in which she stated:

    ‘Exceptional circumstances, in general terms, are those circumstances, which are unusual or out of the ordinary. But the term is also one which may have a wide operation. Factors affecting a person and which set them apart from other persons in a comparable situation may amount to exceptional circumstances…The words ‘exceptional circumstances’ may apply to a variety of circumstances, and no definition which limits their application, should be adopted, unless the limitation appears from the relevant statutory provision.’

25. The Tribunal has also had regard to the Department's Procedures Advice Manual (PAM3) in relation to exceptional circumstances, noting that while it provides guidance, it is in no sense binding on the Tribunal. The policy gives examples of exceptional circumstances for authorising a stay longer than 12 consecutive months, including:

    • The death, serious illness, or serious medical condition of a member of the visa applicant's close family in Australia, in circumstances where the visa applicant is required to stay in Australia to provide assistance or support
    • A change in the applicant's circumstances (or the circumstances of an Australian resident) that:
    • Could not have been anticipated at the time their visitor visa was granted and
    • Is beyond the visa applicant's control and
    • Where not granting a visa would cause significant hardship to an Australian resident or citizen.

26. The Tribunal has carefully considered the evidence of the visa applicant, Ms Nguyen and Mr Capalb and the fact that the visa applicant has remained onshore continuously for approximately three and a half years. The Tribunal has considered the visa applicant claims of wishing to remain in Australia to assist her daughter, care for her grandchild, receive her COVID-19 booster shot and her claims of a COVID-19 outbreak in Vietnam. However, after balancing all the evidence the Tribunal is not satisfied that exceptional circumstances exist for the grant of the visa. The genesis of the visa applicant’s exceptional circumstances claim is that her daughter is suffering from multiple ‘medical conditions’. However no medical evidence was submitted in support. Furthermore, Ms Nguyen did not give evidence that she was suffering from a major or chronic illness. In fact, in two and a half years since her child’s birth, she has not sought any medical treatment, has not consulted any health practitioner and has never taken any medication. No medical evidence was submitted to support that the visa applicant’s grandchild has special needs or a medical condition which would require the visa applicant’s assistance.

27. Unlike the visa applicant’s past two visa applications, which were granted on the basis of exceptional circumstances, the visa applicant’s daughter is no longer a new mother and her grandchild is no longer a newborn baby, but is almost two and half years of age and is eligible for childcare. Mr Capalb admitted that despite being eligible for childcare and there being numerous childcare providers in the area, he does not wish to send his child to childcare, instead preferring to use the visa applicant. This is a personal preference which he and his wife chose, rather than an exceptional circumstance. Further, the fact that the visa applicant’s wife does not have a driver’s licence or motor vehicle and may face some inconvenience transporting her child to childcare is not exceptional.

28. The Tribunal does not regard the visa applicant’s desire to receive her COVID-19 booster shot as exceptional, rather she is one of millions of Australian’s waiting to receive the booster vaccine. There is no medical evidence to support that the visa applicant is immunocompromised or has any underlying health condition. The Tribunal notes that the visa applicant is double vaccinated so is capable of international travel to most regions in the world, including Vietnam. There was no evidence put before the Tribunal that there was a significant outbreak of COVID-19 in Vietnam. Rather, these were assertions made by the visa applicant without any supporting information.

29. The Tribunal also notes from the evidence at hearing, that the visa applicant claims to be In Australia to assist her daughter because of her poor health and alleged medical conditions, yet the entire family has relocated to Queensland for the visa applicant’s health. This evidence casts doubt on the reasons for the visa applicant remaining in Australia and her exceptional circumstances claim. The Tribunal does not regard any of the reasons submitted by the visa applicant as constituting exceptional circumstances.

30. Accordingly the Tribunal finds the requirements of cl.600.215 are not met and the decision under review should be affirmed.

    DECISION

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

    Naomi Schmitz
    Member