Nguyen (Migration)

[2021] AATA 2148

Nguyen (Migration) [2021] AATA 2148 (12 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Xuan Canh Nguyen

CASE NUMBER:  1836897

DIBP REFERENCE(S):  BCC2018/5274862

MEMBER:Angela Cranston

DATE:12 April 2021

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. 600.215 of Schedule 2 to the Regulations.

Statement made on 12 April 2021 at 1:01pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Tourist stream – applicant has lodged a Contributory Parent visa application – global Covid 19 pandemic –stay in Australia for more than 12 consecutive months – exceptional circumstances –medical conditions of grandchildren –decision under review remitted

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 Immigration on 28 November 2018 to refuse to grant the visa applicant a Visitor tourist (Class FA) Subclass 600 visa under s.65 of the Migration Act 1958 (the Act).

2.    The visa applicant applied for the visa on 26 November 2018. The delegate refused to grant the visa on the following basis:

The applicant arrived in Australia on 27 November 2017 as the holder of a visitor (tourist) stream visa which ceased on 27 November 2018. The applicant has remained in Australia continuously since their last arrival on 27 November 2017.

On 26 November 2018 the applicant lodged an application for a 600 visitor tourist stream visa via the Internet. The applicant has requested a further stay until 19 July 2019 which would result in the applicant staying in Australia for a total period exceeding 12 executive months. To satisfy the requirements for the grant of visitor visa, the applicant is required to demonstrate that exceptional circumstances exist for the grant of the visa. The applicant has stated their reasons for further stay are ‘all our family members are here and his children are too busy with his businesses in Melbourne so he wants to stay to take care and help/support his children to take care of his three grandchildren and give the whole family a good support without leaving back to Vietnam for applying a visa at this time. No further reasons were provided.

I have considered the applicant’s claims and I am not satisfied that exceptional circumstances exist for the grant of the visa.

3.    The applicant appeared before the Tribunal on 19 March 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Tung Nguyen the applicant’s son.  The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

4.    Prior to hearing, the Tribunal received the following:

My parents have two children. They are now temporarily residing with me in Australia. My sister has two children and she is Iiving in Germany with her family as permanent residents.

I have a family with 3 children (12,11, and 9 years old). My two youngest children are both diagnosed with autism. One of them is going to Melton  Specialist School.

My parents have no other member in their family in Ho Chi Minh city. They have been waiting for the result of their contributory parent visa application that they lodged in October 2016. They have sold their properties in Vietnam, and therefore it would be very much inconvenient to them if they have to go back to Ho Chi Minh City now. The sites because of Covid 19 pandemic, currently their travels are restricted. It would be very hard for them to get back to Australia.

They would like very much to stay here with us and also to assist our family and business. They have their own funds, we are more than able to provide them with free accommodation and food.

We owned two successful restaurants, Baba restaurant in Saint Kilda and Yeetus restaurant in South Melbourne. We also own a farming Plumpton and really need my parents to stay back in history to assist us with looking after our children and our farm.

In 2016, we bought our farming property in Plumpton and my father has been providing me with assistance in running the farming business. He has good knowledge of building the hydroponic farming to help grow up basil and vegetables to sell to local markets such as Epping wholesale market, Vietnamese restaurants in St Albans and Sunshine, Footscray also other groceries in restaurants in Springvale. Happy farm has 8000sq2  hydroponic system in greenhouse in the land of 10.5 ha. Needs to be maintained. As the expertise and cost of hiring labour in local market is too high for this business, we really need him to stay in order to give us a big hand. We also need him as a consultant on a daily basis as problems can happen. Currently we have around 50 clients from biggest to middle Pho restaurants were consuming our Thai basil and onion which make us busier.

My mother has problems with her heart and has had a heart operation before. While staying here in Australia she can access good health care and medical services. Currently every fortnight she is going to Maidstone family clinic to see her doctor to have a blood test and a check-up. We very much prefer to the medical services here in Australia to the ones in Vietnam. On the other hand, she can also enjoy living with a husband and loved ones in a happy family. This also helps her greatly with her well-being.

My father has problems with his blood tension. He has suffered of high tension before. He is now regular tests and treatments in Maidstone. His health is improving now that he lives in our farm in the countryside, doing some farm work also is physical and mental exercises to assist me in my family. This is much preferable to send him back to hectic Ho Chi Minh City. In fact the thought of having to leave his peaceful life behind even temporarily has shocked him. We believe that his mind and body will be better if he is granted more time to stay back in Australia.

Whilst I am back with us they have been enjoying lots of family and social activities that have been participating in many of our special family occasion such as graduation day of my son (the grandchild) who was starting year seven. We used to live at 9 Timothy Drive Wantirna South 3152 and I often had to drive my father to the farming Plumpton where he often stays there with my mother. Last month we decide to move to the farm to stay together and there are lots of things we need to do as this is a major challenge for our whole family. We are finding schools for our young children we need to remove list to help move our belongings from Wantirna to Melton. So many things my parents can assist us now that they are still allowed to stay back in Australia legally.

We would be grateful if the tribunal would consider application favourably. We believe that an extension of their time as marchers aloud would be a practical and reasonable request given the current circumstances of our family and most importantly due to Covid 19 pandemic travel restrictions. Been able to stay back some more time with us is very helpful and beneficial not only to my parents well-being but also hours. Our family need a big hand from them, the children their grandparents and our farm need my father’s expertise.

5.    The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

6.    The applicant stated he wanted to remain in Australia because he had hypertension, high blood pressure and diabetes and during his time in Australia his diseases had decreased which was also thanks to tourism, travelling and playing golf. He stated the main reason he wanted to stay was his son had three children, two of whom had autism and he had to take care of them. His son also had two restaurants and one farm, that the technology on the farm was hydroponics which he knew and needed to teach his son. He also stated his wife who was on a tourist visa was undergoing cardiac surgery and was enjoying the best medical health care in Australia. When asked about the visa his wife was on, he stated she had reapplied for a visa and was waiting for a response.

7.    The applicant’s son stated the whole family was in Australia, Covid had happened and it was hard for his parents to return to Vietnam. He said they had no other family members in Vietnam and his parents had sold their house. He stated they had been waiting for the results of their contributory parent visa and wanted to stay together.

8.    The Tribunal then spoke to the adviser and said that it needed to consider whether exceptional circumstances existed for the grant of another tourist visa. The Tribunal put to the adviser that the submission suggested that the applicant was working however one of the tourist visa conditions was no work. The adviser stated they understood that and the applicant was not working for money. The Tribunal put to him that under the migration legislation, the definition of work meant “any activity that usually attracts remuneration”. The adviser stated he had explained that. The Tribunal again put to the adviser that one of the reasons that had been put forward as to why the applicant should be granted a further tourist visa was that he was needed to provide unpaid assistance in running the family business. He stated it was one off advice and what he was doing now was very limited and for his own welfare. The Tribunal put to him that the applicant had been in Australia since November 2017 and given that his tourist visa application requested that he remain until July 2019 it was wondering why there were exceptional circumstances for the grant of a further tourist visa and why their circumstances differed from others. He stated Covid was a practical reason and the applicant should wait until the border restrictions were removed. The Tribunal put to him that it may be that the applicant was trying to permanently remain in Australia before he obtained his contributory parent visa and the Tribunal needed to consider whether it was satisfied that exceptional circumstances existed for the grant of a further tourist visa. The Tribunal also said that the reasons provided with the exception of Covid may suggest that the applicant was trying to permanently remain in Australia rather than being exceptional reasons why he should be granted another temporary visa. The Tribunal put to him that it would consider that the applicant had been working and needed to provide support to his son’s family however it was difficult to understand why that situation should not have been addressed or why it was a reason the applicant should be given a further tourist visa. The adviser stated the applicant was not working, that his giving advice and running the farm and looking after the applicant’s sick children was one off and within the regulations.

9.    The Tribunal put to the applicant that he had come to Australia in November 2017 and had applied for another tourist visa, that in his tourist visa application he had requested to remain in Australia up until July 2019 and all of the reasons that he provided seemed to suggest he wanted to remain in Australia permanently and may not be exceptional reasons for a further tourist visa. The Tribunal also put to him that one of the reasons why he said that he wanted to remain was to help run the family business however he was not allowed to work on a tourist visa.  The applicant stated he wanted to remain in Australia because all the conditions were favourable however the main reason was in order to help his son to take care of his grandchildren. He also stated he did not work as an official worker and was at his son’s farm as an advisor because he knew the technology. The Tribunal put to him it was struggling to understand why him looking after his grandchildren was exceptional to all other people looking after grandchildren. He said his health significantly improved in Australia. When the Tribunal asked how that was different from everyone else in Australia he stated his two grandchildren had autism and it was difficult to look after them but he wanted to. The Tribunal put to him that that may be something that his son needed to address long-term and giving the applicant another tourist visa may not address that issue. He stated if he had to be far from his grand- children he would be worried. When the Tribunal asked why he didn’t return to Vietnam in July 2019 he stated it was because of the grandchildren and he could not stay far away. He stated most of his family was in Australia and his wife was being treated for cardiac surgery.

1. Following the hearing, the Tribunal wrote to the applicant requesting further evidence about his wife’s medical records and received the following from the adviser:

   We submit that the letter of Dr Trang Nguyen as medical summary in English is a sufficient evidence of the medical conditions and history of the applicant’s wife who had a heart operation in Vietnam in 2015 and needs better medical care and treatment while she is in Australia.

2. Also enclosed were medical reports dated 18 February 2021 and March 20 March 2021 stating that Thi Thu Ha was asymptomatic.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

Initial issue

1. The Tribunal exercised its discretion (and pursuant to Covid-19 Practice Direction for Migration and Refugee Division dated 27 April 2020) to hold the hearing by telephone. The hearing was held during the Covid-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter. 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 telephone.

2. While the Tribunal spoke to the applicant by telephone, the Tribunal's observations were that the applicant was given ample opportunity to submit all the evidence that he wanted the Tribunal to consider. The Tribunal considers that in these circumstances, it has given the applicant a fair opportunity before, during and after the hearing to provide all the evidence and arguments and evidence that he wanted the Tribunal to consider.

Substantive issue

1. The issue in the present case is whether exceptional circumstances exist for the grant of the visa.

2. Clause 600.215 provides that if the grant of the visa would result in authorising a stay of more than 12 consecutive months as the holder of a visitor visa, there must be exceptional circumstances for the grant of the visa.

3. The Tribunal notes that what constitutes exceptional is not defined in the Act or Regulations. According to the Macquarie Dictionary, 'exceptional' is defined to mean “forming an exception or unusual instance; unusual; extraordinary”.

4. 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. The concept of what is 'exceptional' has been the subject of judicial consideration by the Courts. In the Full Federal Court in An v Minister for Immigration and Citizenship [2007] FCAFC 97, the majority (per Emmett and Lindgren JJ) held that the word 'exceptional' is a simple non- technical word and should be understood as meaning “unusual” or “atypical”. His Honour, Walters J also considered the meaning of 'exceptional circumstances' in the context of section 137L of the Act in Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 918. In particular, his Honour referred with approval to the comments of Kiefel J in Hatcher v Cohn [2004] FCA1548 in which Keifel J stated at [49]:

   '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.

5. 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 not 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.

6. On the evidence before it, the Tribunal finds the applicant has been in Australia continuously since November 2017. He applied for the present visa in November 2018. The grant of the visa would therefore clearly result in his being authorised to stay in Australia for more than 12 consecutive months.

7. The Tribunal has considered the applicant's circumstances and reasons put forward for the request for further stay. It accepts on the evidence provided that the applicant came to Australia in 2017 to support his son and his grandchildren, two of whom have autism.

8. The evidence before the Tribunal also indicates the applicant has lodged a Contributory Parent visa application and has a long-term plan to settle in Australia.

9. While the applicant has stated that he wants to assist his son with his business, this would result in him breaching tourist visa conditions which require him to not undertake activities which would usually attract remuneration.

10. However, the applicant’s desire to continue to provide support and assistance to his grandchildren is understandable. While not unreasonable, it would appear their needs are ongoing and long term in nature and the visitor visa sought by the applicant may not be the most appropriate option. In addition, the applicant and his wife’s health is long term in nature and not an exceptional circumstance for granting a further short-term tourist visa.

11. However, the Tribunal also accepts that the current and unanticipated circumstances of the global Covid 19 pandemic is relevant in that it affects the applicant's ability to return home at this time. The circumstances of the global pandemic also means there is uncertainty as to whether and when regular processing of visa applications and travel to Australia for non citizens and permanent residents will resume from Vietnam. This leads the Tribunal to conclude there are exceptional reasons for the grant of the visa at this time.

12. Therefore, considering all of the above, the Tribunal finds the abovementioned circumstances taken together are unusual and out of the ordinary such as to be exceptional. In reaching this conclusion the Tribunal gives particular weight to the circumstances of the global Covid 19 pandemic.

13. As to the period of stay, the Tribunal notes that this is a matter for the Department to specify upon granting the visa (cl. 600.511).

1. For the above reasons the Tribunal is satisfied there are exceptional circumstances for the grant of the visa, and finds that the requirements of cl.600.215 are met.

DECISION

1. 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. 600.215 of Schedule 2 to the Regulations.

Angela Cranston
Member