SAKHUJA (Migration)

[2020] AATA 4719

SAKHUJA (Migration) [2020] AATA 4719 (6 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs URVI SAKHUJA

VISA APPLICANT:  Mrs PARUL HITESHKUMAR SHAH

CASE NUMBER:  1922690

HOME AFFAIRS REFERENCE(S):          BCC2018/2873585

MEMBER:Justine Clarke

DATE:6 November 2020

PLACE OF DECISION:  Melbourne

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:

·PIC 4013 for the purpose of cl.600.213 of Schedule 2 to the Regulations.

Statement made on 06 November 2020 at 12:03pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – application made within three years after previous visa cancelled – earlier visa for another country expired, not cancelled – compassionate or compelling circumstances justifying grant of visa – review applicant’s child’s health and visa applicants’ care – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 116(1)(d), 128, 360(2)(a)
Migration Regulations 1994 (Cth), Schedule 2, cl 600.213, Schedule 4, criterion 4013(1A)(b)

CASE
Plaintiff M64/2015 v MIBP [2015] HCA 50

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 21 June 2019 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. On 31 July 2018, the visa applicant applied for the visa. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. The applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream. 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, the criteria include cl.600.213. The text of cl.600.213 is set out in the delegate’s refusal decision.

3. The review applicant—who is the visa applicant’s daughter—provided the Tribunal with a copy of the delegate’s refusal decision. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.213 because the delegate was not satisfied that the visa applicant met Public Interest Criteria (PIC) 4013.

4. PIC 4013 provides that:

   (1)  If the applicant is affected by a risk factor mentioned in subclause (1A), (2), (2A) or (3):

   (a) the application is made more than 3 years after the cancellation of the visa or the determination of the Minister, as the case may be, referred to in the subclause that relates to the applicant; or

   (b) the Minister is satisfied that, in the particular case:

   (i)        compelling circumstances that affect the interests of Australia; or

   (ii) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

   justify the granting of the visa within 3 years after the cancellation or determination.

5. PIC 4013(1A)(b) provides that a person is affected by a risk factor if a visa previously held by the person was cancelled under section 128 of the Act because the Minister was satisfied that the ground mentioned in paragraph 116(1)(d) of the Act applied to the person.

6. The primary decision states:

   In the application form, the applicant has stated intention to travel [to] Australia to support grandson (daughter’s son in Australia) who is diagnosed with Autism and requires continual support.

   Departmental systems indicate that applicant’s visitor visa to Australia was cancelled on 6/10/2017 and is subject to an exclusion period due to which visa cannot be granted until 6 October 2020.

   On 30 August 2018, the applicant was presented with this information along with an opportunity to comment and also to present any compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that justify granting of the visa.

7. The delegate explained that the visa applicant had been given time to provide comments and that a response had been received. However, the delegate was not satisfied that there were compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that justified the grant of the visa.

8. On 15 August 2019, the review applicant applied to the Tribunal for review of the primary decision. The review applicant has not been represented in relation to the review.

9. The Tribunal notes that the review applicant submitted a number of documents to the Tribunal, including:

   ·the review applicant’s written submissions which include an outline of relevant events;

   ·the delegate’s decision of 6 October 2017 to cancel the visa applicant’s visitor visa  pursuant to s.128 which notes that the Department had received information from a ‘reliable source’ that a Canadian visitor visa had been cancelled and that accordingly, the delegate was satisfied that there was a ground for cancelling the visa under s.116(1)(d);

   ·a copy of an email from the Consulate General of Canada dated 5 August 2019 which confirmed that the Temporary Resident Visa that had been granted in August 2015 had not been cancelled but rather had expired; and

   ·a copy of an occupational therapy evaluation for the review applicant’s named son dated 29 August 2019.

10. The review applicant claims that the visa applicant and her husband (the review applicant’s father) did not receive ‘Australian visa cancellation letter, so they did not get chance to prove otherwise’. She stated:

    As soon as they came to know about the reason, they visited VFS office, send enquiries to Canada migration department and the agent who helped them to apply for Canada visa to confirm whether their Canada visa was expired or cancelled.

    [The named migration agent] sent letter to immigration department on behalf of my parents, that they have been ideal visitors for all their past visits to Sydney abiding by law and visa conditions. And their urgent visit to Sydney is to support me and my family as my son was diagnosed with Autism (ASD Level 3).

    All kids need their parents’ support in hard time. But I was denied that physical and mental support by one case officer who deemed that diagnosis of life long disability and preparing to cope with this situation is not compelling enough reason for parents to be with their kids and grandkids.

    …

    Finally after 7 months of going back and forth to sort this out. We received email, on 5 August 2019 (attached), from Canada immigration official confirming that Canada visa had EXPIRED and NOT CANCELLED. The reason provided for the cancellation/decline of Australia visa was cancellation of Canada visa. However as confirmed Canada visa had expired.

    Hence cancellation of their previous visa was WRONG.

    They suffered mentally, physically, emotionally and financially due to this miss communication which my parents had no control over. Not to mention heartbroken child with autism waiting at the door on his birthday, how do you explain to 6yr old child that his grandparents are not coming.

    …

    Due to trusting wrong people and miss communication they never got chance to prove their innocence.

    Due to school commitments and therapies [review applicant’s named son] could not travel to meet them. So they have not met for 3 years.

    Being diagnosed with autism, it is very hard emotionally and physically. Family support is the boost that is required to move forward.

11. The review applicant stated that the events had caused a lot of heartache to her and her son. Accordingly, the Tribunal understands that the review applicant claims that there are compassionate or compelling circumstances that affect the interests of Australian citizens that justify the granting of the visa within three years after the cancellation.

12. The Tribunal notes that the review applicant, the visa applicant and the review applicant’s father were all prepared to give oral evidence to the Tribunal about the case. However, having reviewed the material before it, the Tribunal formed the view that a hearing was not needed. The Tribunal determined that it was able to find in favour of the review applicant based on the material before it, pursuant to s.360(2)(a) of the Act.

13. The Tribunal notes the review applicant’s claim that the Department wrongly cancelled the visa applicant’s previous visa. However, the issue to be determined by the Tribunal in this review is whether there are any compassionate or compelling circumstances that affect the interests of an Australian citizen that justify the granting of the visa within three years after the cancellation.

14. The expressions ‘compelling circumstances’ and ‘compassionate or compelling circumstances’ are not defined for these purposes. To be compelling, the circumstances must force or drive the decision-maker irresistibly to be satisfied: see Plaintiff M64/2015 v MIBP [2015] HCA 50. The ordinary meaning of ‘compassionate’ relates to feelings of sympathy, sorrow, pity or concern for others.

15. In addition to the written submissions filed in this review, the Tribunal has had regard to documents on the Department’s file, including:

    ·the written submissions of 5 March 2019 which provide further detail of the review applicant’s claims that there are compassionate or compelling circumstances that affect the interests of Australian citizens that justify the granting of the visa within three years after the cancellation;

    ·the email of 3 July 2018 from the named teacher of the review applicant’s son;

    ·the signed ‘to whom it may concern’ letter dated 24 July 2018 from the named consultant paediatrician treating the review applicant’s son; and

    ·the signed letter from a named clinical psychologist to the above-mentioned consultant paediatrician dated 24 July 2018 detailing her assessment of the review applicant’s son.

16. Having reviewed all the evidence before it, the Tribunal finds that both the review applicant and her son—both of whom are Australian citizens—would benefit greatly from the emotional support that could be provided by the visa applicant if her visa was granted. For example, the Tribunal notes that one of the recommendations in the occupational therapy evaluation of 29 August 2019 is:

    Active family involvement is highly encouraged. This will facilitate warm and affection necessary to improve [review applicant’s named son’s] emotional and functional development.

17. The Tribunal accepts the review applicant’s claims that both she and her son have suffered emotionally in not having had this support at a time when they particularly needed or expected it. The example provided of the review applicant’s son being heartbroken when his grandparents did not arrive for his sixth birthday—a trip that had been planned for over a year according to the visa applicant in her signed statement of 3 September 2018—causes the Tribunal to have feelings of sympathy, sorrow and concern for others.

18. The Tribunal also finds that the review applicant would benefit from having the additional physical support of the visa applicant to help provide the necessary level of care to the review applicant’s son to aid his development.  

19. The Tribunal is satisfied that, in this case, there are compassionate circumstances that affect the interests of Australian citizens and that these circumstances justify the granting of the visa within three years after the cancellation. Accordingly, the visa applicant meets PIC 4013 for the purpose of cl.600.213.

20. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 600 visa.

    DECISION

21. 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:

    ·PIC 4013 for the purpose of cl.600.213 of Schedule 2 to the Regulations.

    Justine Clarke
    Member