Seemok (Migration)

[2021] AATA 4430

Seemok (Migration) [2021] AATA 4430 (16 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Chanta SEEMOK

CASE NUMBER:  1929413

HOME AFFAIRS REFERENCE(S):          BCC2019/4883500

MEMBER:Nathan Goetz

DATE:16 November 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to refuse to grant the applicant a Visitor (Class FA) Subclass 600 visa

Statement made on 16 November 2021 at 2:04pm

CATCHWORDS

MIGRATION – Visitor (Class FA) (Class FA) visa – Subclass 600 (Visitor) – tourist stream – grant of visa would result in stay for total period more than 12 months – exceptional circumstances beyond applicant’s control – caring for grandchild while parents work – no family, accommodation or employment in home country – intention to apply for sponsored parent visa – no response to tribunal’s invitation to provide information or appearance at hearing – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359(2), 360(1), (3), 363A

Migration Regulations 1994 (Cth), Schedule 2, cl 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 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).

   BACKGROUND

2. The applicant identifies as 63-year-old female citizen of Thailand. On 13 October 2018 the applicant arrived in Australia holding a visitor visa. That visa ceased on 13 January 2019.

3. On 10 December 2018 the applicant applied for another visitor visa. On 18 December 2018 the applicant was granted this visitor visa. That visa ceased on 13 October 2019.

4. On 29 September 2019 the applicant applied for the visitor visa that is the subject of this decision record. 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 applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream. On 9 October 2019 the delegate refused to grant the visa on the basis that the applicant did not satisfy cl.600.215 of Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations). On 16 October 2019 the applicant applied to the Tribunal to review the decision to refuse to grant the visitor visa.

5. On 29 October 2021 the Tribunal wrote to the applicant for two reasons.

6. The first reason was to invite the applicant under s.360(1) of the Act to appear at a Tribunal hearing scheduled to commence at 10:00am (Sydney time) on 1 December 2021 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was satisfied that a telephone hearing was appropriate as the applicant resided in South Australia and the Tribunal Member was located in New South Wales. The Tribunal was required to invite the applicant to appear at a Tribunal hearing because it had considered the material it had and was unable to make a decision favourable to the applicant.

7. The second reason was to invite the applicant under s.359(2) of the Act to provide the Tribunal with information. The information requested is detailed later in this decision. The invitation to provide information advised the applicant that if the information was not provided by 12 November 2021 then the Tribunal hearing would be cancelled. The applicant did not provide the information. The Tribunal therefore cancelled the Tribunal hearing and has proceeded to make a decision on the review application without taking any further steps to allow or enable the applicant to appear at a Tribunal hearing: ss.360(3), 363A of the Act.

   CRITERIA FOR THE VISITOR VISA

   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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Visitor visa application form and documents submitted to the delegate

8. The applicant indicates she is not currently outside Australia. She seeks a further stay of out to 12 months. The requested end date of the stay was 29 September 2020. The form noted that if the requested further stay would result in the applicant being authorised to stay in Australia for more than 12 months, then the applicant must demonstrate that she has exceptional reasons for the further stay. The applicant responded that “to assist with the care of our daughter and to enable myself and my wife to continue working. A letter will be attached to explain the reasons for this request.”

9. The applicant detailed that she was born in Ubon Ratchathani, Thailand. She is widowed and is retired. She has a Thailand passport expiring on 1 July 2023. She identified her daughter Ms Jongrat Osborne, her son-in-law Mr Kenneth Osborne and her grandchild Miss Emily Osborne as her contacts in Australia. The costs for her stay in Australia will be met through her daughter and son-in-law.

10. The letter referred to in the visa application form read as follows: “My wife and I would like to apply for a further 12-month visa for Chanta Seemok so she can help us care for our daughter Emily. Both my wife and myself are working and we required before school and after school care for Emily. Chanta’s help in this regard has been good for us as it enables us to both continue working and contributing to the economy. Chanta has no family in Thailand left, as her husband and other daughter are both deceased. All of Chanta’s expenses are covered by my wife and myself, including medical costs if required. She has fitted into our family unit beautifully and contributes with cooking and growing vegetables. Chanta and her granddaughter love each other dearly and are both teaching each other their languages. If further information is required, we will supply it. I hope you can look favourably on this application.”

    Review application

11. When the applicant applied to the Tribunal for review of the decision to refuse to grant the visitor visa, she submitted two untranslated documents which appeared to be death certificates from Thailand. Also provided was a statement from the applicant’s son-in-law which read as follows: “This letter is to explain why my wife and I applied for an extension to Chanta Seemok’s visa. We were hoping for an extension to Chanta’s visitor visa to enable my wife and I to apply for a sponsored parent visa. We only became aware of this visa after we had applied for the extension to the applicant’s visitor visa. Chanta has no immediate family left in Thailand as both her husband and elder daughter passed away prior to her coming to Australia. She has no accommodation or employment to go back to. We are hoping that Chanta can stay here with us as a family unit and enjoy her life with her daughter and granddaughter and myself. I did not fully explain these reasons in our application for an extension. I do believe these are special circumstances and an extension if only short will give us the time to apply for the sponsored parent visa. We cannot apply for this visa whilst Chanta is on a bridging visa.”

12. As detailed previously, the Tribunal wrote to the applicant on 29 October 2021 to request information that demonstrated the applicant satisfied cl.600.215 of the Regulations. The Tribunal attached a copy of the clause for the applicant’s reference. The Tribunal received not response to this request for information.

    FINDINGS AND REASONS

13. The issue in the present case is whether exceptional circumstances exist for the grant of the visa. The applicant is required to have exceptional circumstances for the grant of the visa because if the visitor visa is granted, it would result in her being in Australia consecutively since 13 October 2018, which is in excess of 12 months.

14. The relevant department policy is VM-3190 which was reissued on 10 September 2015. The Tribunal has considered that policy when making its findings. In that policy, exceptional circumstances may include: 

    1.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

    2.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. 

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

16. The Tribunal is not satisfied that there are exceptional circumstances for the grant of the visitor visa. The Tribunal was concerned that the claimed exceptional circumstances may no longer be relevant, given the age of the review application, or that there may be additional information that the applicant wished to put before the Tribunal. As the applicant did not provide the Tribunal with information under s.359(2) of the Act, the Tribunal has considered the claims that were raised at the time the review application and assumed that they are still maintained as exceptional circumstances.

17. It was submitted that exceptional circumstances existed because the applicant assists with the care of her granddaughter in Australia. The Tribunal does not consider care of a grandchild so that her parents can work to be exceptional. The Tribunal is satisfied that it is general public knowledge that a family may have both parents working, which requires children to have before and after childcare, either with relatives or with a childcare provider. There is nothing exceptional about this requirement. While it may be the preference of the applicant’s daughter and son-in-law to have the applicant take on this role, her doing so is not exceptional.

18. It was also submitted that exceptional circumstances exist because the applicant has no family in Thailand. Many people may be the sole remaining member of their family in a country. There is nothing exceptional about this.

19. It was further submitted that the applicant had no accommodation or employment to return to in Thailand. The applicant provided no information about how her accommodation was lost in Thailand. For all the Tribunal knows, she divested herself of her family home in participation of a permanent move to Australia. There is no credible information to support a conclusion that the applicant would not be able to secure a place to stay in Thailand upon her return to her home country. The fact that the applicant does not have a current place to stay in Thailand is not an exceptional circumstance to justify the grant of the visitor visa. Likewise, the Tribunal has been provided no information about whether the applicant has ever previously worked in Thailand. For all the Tribunal knows, the applicant may have never been employed in Thailand. The fact that she does not have employment in Thailand is not an exceptional circumstance to justify the grant of a visitor visa, as it is not uncommon for people to not be employed in their home country.

20. Finally, it was submitted that the visa applicant desires to lodge a sponsored parent (temporary) visa, which the applicant’s son identified as an ‘870’ visa in the letter submitted to the Tribunal. The letter suggested that the applicant needed to be on a visitor visa to make a valid application for a sponsored parent temporary visa. If the applicant desires to lodge a particular visa in Australia in the future, that does not mean that exceptional circumstances exist for the grant of a visitor visa.

    CONCLUSION

21. For the reasons given above, the applicant does not satisfy cl.600.215 of Schedule 2 of the Regulations.

    DECISION

22. The Tribunal affirms the decision to refuse to grant the applicant a Visitor (Class FA) Subclass 600 visa.

    Nathan Goetz
    Member