TRAN (MIGRATION) - [2024] ARTA 122

TRAN (MIGRATION) [2024] ARTA 122 (6 NOVEMBER 2024)

DECISION AND

REASONS FOR DECISION

Applicant:Mrs Thi Kim Tham Tran
Respondent: Minister for Home Affairs
Tribunal Number: 2309895

Tribunal:General Member L Holub
Place:Sydney
Date: 6 November 2024
Decision:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 6 November 2024 at 10:55am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – authorising stay of more than 12 consecutive months – exceptional circumstances – Australian citizen family medical issues – emotional support and assistance – maintaining ongoing residency in Australia – decision under review affirmed

LEGISLATION

Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024
Migration Act 1958, ss 65, 137L
Migration Regulations 1994, Schedule 2, cl 600.215

CASES

An v Minister for Immigration and Citizenship [2007] FCAFC 97
Hatcher v Cohn [2004] FCA 1548
Oreb v Wilcox (2004) FCA 1520
Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 918

STATEMENT OF REASONS

APPLICATION FOR REVIEW

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).
The visa applicant applied for the visa on 7 May 2023 and was refused on 30 June 2023.
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.
The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl 600.215:
cl 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.
The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.215 because the delegate that the delegate was not satisfied that exceptional circumstances exist for the grant of the visa.
The applicant appeared before the Tribunal on 30 October 2024 to give evidence and present arguments. The Tribunal also received oral evidence from her sister. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

BACKGROUND

The visa applicant was born in Vietnam in January 1976. Department records indicate that on 12 June 2019 she commenced a Visitor (Tourist) (FA-600) visa application. The visa was granted on 1 July 2019. On 5 August 2019 the applicant arrived in Australia and on 15 September 2019 she departed. She returned to Australia on 2 March 2020. The applicant commenced a second Visitor (Tourist) (FA-600) visa application on 22 May 2020 which was granted on 31 May 2021.

10) The applicant commenced a third Visitor (Tourist) (FA-600) visa application on 1 November 2021, which was granted to her 4 November 2021. Subsequently on 1 May 2022 applicant again applied for a Visitor (Tourist) (FA-600) visa and was granted a fourth visa on 22 November 2022. On 18 February 2023 the applicant departed Australia and returned on 13 March 2023.

11) On 7 May 2023 the applicant commenced a fifth Visitor (Tourist) (FA-600) visa application. It was refused 30 June 2023 and on 6 July 2023 she lodged an application for a review of that decision with AAT.

12) On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth) (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.

13) The issue in the present case is whether cl 600.215 is met, which requires the Tribunal to determine whether the grant of the Visitor visa will result in the applicant being authorised to stay in Australia for more than 12 consecutive months, and if so, whether exceptional circumstances exist for the grant of the visa.

WRITTEN INFORMATION AND EVIDENCE

14) In lodging the Visitor visa application, the applicant provided the Department with:

·Her birth certificate and that of sister Ngoc Tram Tran.
·Her sister’s current passport and drivers licence.
·The ATO Notice of assessment as of 30 June 2022 for her sister Ngoc Tram Tran and her brother-in-law Van Giau Tran.
·The passport of her nephew, Jason Tran.
·her brother-in-law’s current passport and drivers licence.
·Supporting letter from Dr. Theresa H. H. Ho regarding her nephew’s condition.
·Bank statement confirming her sister’s bank balance as of 10 May 2023.

15) Written submissions provided to the Tribunal before the scheduled hearing include:

·An updated bank statement confirming the bank balance of her sister as of 4 October 2024.
·Payslip confirming income for of her sister as of 2 October 2024.
·Three medical certificates/reports confirming condition of the applicant’s nephew Jason Tran and a medical certificate confirming health condition of her sister.

16) The applicant submitted that her sister has two young children and that the eldest has been under therapy for delayed developmental skills. She submitted that her sister and her husband are both employed and that her sister has been under lots of pressure as a wife and a mother and needs the applicant to be in Australia. The applicant wishes to be able to travel back to Vietnam to see her own family and to return back to Australia to be with her sister and her family without having to re-apply for another Visitor visa.

17) A medical certificate dated 23 September 2024 states the applicant’s sister suffers from poor controlled diabetes and a stress related disorder. She has to care for two young children aged 7 and 3 years old. It further states “it would be significant if she could sponsor her sister to visit her and support her during this difficult period”.

THE HEARING

Applicant’s oral evidence

18) The applicant confirmed she was born in Vietnam in January 1976. She also confirmed her migration history as outlined above and stated she sought to remain in Australia because she had Covid and because her sister has two children, and one is seven years old and has depression.

19) The applicant confirmed that she is married and is in a relationship with her husband. She has two children in Vietnam, one of whom is 30 years, and other is 23 years old.

20) I explained to the applicant that the evidence provided to the Tribunal in relation to her nephew indicates that he has been diagnosed with autism not depression. She confirmed this. When asked if the family receives any National Disability Insurance Scheme (NDIS) support she responded it does not. I referred to one of the submissions provided which was from the QT Speech Therapy and Learning Centre which indicates it was written to provide information about the child’s progress for the National Disability Insurance Agency. She asked that I speak with her sister about that.

21) The applicant stated that her nephew has a drawing class on Wednesdays and on Fridays he has a writing class.

22) The applicant stated she provides her sister with emotional support when her sister gets home from work. She stated that in the afternoons/evenings it is overwhelming for her sister, so she plays with the children and supports her sister.

23) In relation to how long she considers she needs to provide her sister with emotional support, the applicant responded that it depends on how long the Tribunal will allow her to remain. I pointed out that given her migration history that had been discussed at the commencement of the hearing, it appears she is seeking to maintain ongoing residency in Australia which is not the purpose of the Visitor visa. She responded that she feels sorry for her sister, and she wants to support her because it is hard for her. She stated she would like to return to Vietnam to spend time with her husband and children and be able to return to further assist her sister.

24) I referred to the fact that at the time of application, she sought the visa to remain in Australia until May 2024 and noted that the hearing was being held at the end of October 2024 and she had not departed. I again referred to the fact that it appears she is seeking to maintain ongoing residency in Australia and asked her if she wished to add anything further. In response, the applicant stated it is because sister is feeling stressed, and she wants to support her emotionally until everything has settled down and then she will return to Vietnam. I put to her that it appears that the timeframe for her departure is open-ended, to which she responded in the affirmative.

Witness

25) The applicant’s sister stated she is a support worker/carer with United Link Care. She stated she works part-time, for around two or three hours each day between 9.00 am and 2.30pm. She stated her husband is a tiler and works full-time. She stated she came to Australia when her husband sponsored her for a Partner visa. She is now an Australian citizen.

26) The witness stated that her son has been assessed by NDIS with both autism and ADHD and he receives support through two sessions per week with an occupational therapist and speech therapist on Wednesday and Friday afternoons from 4.00 to 5.00 pm.

27) I explained to her that the visa applicant has had several Visitor visas granted to her and is seeking a further visa which would result in her remaining in Australia for over 12 months and therefore, I must consider whether exceptional circumstances exist for the grant of the visa. I asked her about her son’s prognosis and how long she need her sister’s support for. She responded her son has made some progress, but he still answers questions with nonsense, and she finds it very stressful. She stated she would like her sister to remain for another six to twelve months and to be able to return to Australia in the future. I pointed out that the Visitor visa is not designed for a person to maintain an ongoing presence onshore and that the visa applicant has been in Australia since 2019, except for a couple of very short periods. I explained that this is a concern for me. She responded that her she loves and wants to support her and maybe she could return to Vietnam for a few weeks to visit her family.

28) The witness stated that in the mornings the applicant helps with feeding the children and then she drives them to work and drops off the children at school and at day care. She stated that in the evening when she is cooking, her older child is troublesome and hits the younger one and it helps to have her sister play with the children. She stated it makes her feel better.

29) In discussing her husband’s role supporting the family, the witness stated her husband returns home from work between 6.00 and 7.00 pm but if he is particularly busy at work it may not be until 8.00 and 9.00 pm. She stated he sometimes has to work overtime because the builder wants to get a job finished.

30) I asked if there is a long-term plan to deal with the complexity of Jason’s condition and the support she needs. She responded there is not. She has no other family in Australia and her husband’s family is very busy with their own lives. Her sister-in-law has a three-month old child, and her mother-in-law works a restaurant and has aches in her leg.

CONSIDERATION OF CLAIMS AND EVIDENCE

31) The issue in the present case is whether cl 600.215 is met, which requires the Tribunal to determine whether the grant of the Visitor visa will result in the applicant being authorised to stay in Australia for more than 12 consecutive months, and if so, whether exceptional circumstances exist for the grant of the visa.

Would the grant of the visa result in the applicant being authorised to stay in Australia as the holder of one or more prescribed visas for a total period of more than 12 consecutive months?

32) Departmental records show the applicant was granted a fourth Visitor visa on 22 November 2022. She departed Australia on that visa on 18 February 2023 and returned on 13 March 2023. She has therefore been in Australia for more than 12 consecutive months. Since first arriving in Australia on 5 August 2019, she has been granted a series of subclass 600 visas and bridging visas. These visas are prescribed in cl 600.215. The Tribunal is satisfied that the grant of a further subclass 600 visa would result in the applicant being authorised to stay in Australia as the holder of one or more of the visas prescribed in cl 600.215 for a total period of more than 12 consecutive months.

Do exceptional circumstances exist for the grant of the visa?

33) “Exceptional circumstances” is not defined in the legislation. However, there is some relevant court authority on the meaning of exceptional circumstances which the Tribunal has had regard to.

34) 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 the word “exceptional” in the context of cl 856.213 in Part 856 of Schedule 2 to the Regulations is a simple, non-technical phrase and should be understood as meaning unusual or atypical.

35) Further, the meaning of “exceptional circumstances” in the context of section 137L of the Act was considered by Walters FM in Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 918. In particular, the court referred with approval to the following comments of Jacobson J in Oreb v Wilcox (2004) FCA 1520:

The terms “exceptional circumstances” or “special circumstances” are gateways to the exercise of a discretion and are to be found in many statutes. They have been said to be elastic instructions and that all that is contemplated is for there to be something unusual or different to take the matter out of the ordinary (see Boscolo v Secretary, Department of Social Security [1999] FCA 106; (1999) 90 FCR 531 at 535-6).

36) Walters FM also referred to the following statements of Kiefel J in Hatcher v Cohn [2004] FCA 1548:

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.

37) While the Tribunal is not obliged to adhere to the Department’s guidance, Departmental policy guides decision makers to recognise exceptional circumstances according to their ordinary dictionary meaning which may include:

·An unanticipated change in an applicant’s circumstances (or the circumstances of an Australian citizen or permanent resident) that are beyond the applicant’s control and are extraordinary; or
·If an applicant is required to stay in Australia to provide assistance or support due to the death, serious illness or serious medical condition of a member of the applicant’s close family in Australia.

38) The Macquarie Dictionary[1] specifies the following relevant definition for the word “exceptional” in its adjectival form: forming an exception or unusual instance; unusual; extraordinary.

[1] Macquarie Dictionary (online) – and reasons

39) The Tribunal accepts the applicant’s nephew has been diagnosed with autism and ADHD and that her sister needs her emotional support and assistance.

40) During the hearing the Tribunal discussed the purpose of a Visitor visa with the applicant and her responses indicate that she is aware that the Visitor visa pathway is not designed to enable long term residency in Australia but that she wishes to continue to support her sister. The Tribunal is prepared to accept that she wants to support her sister and that she has a desire to return to Vietnam to see her own family.

41) The Tribunal has had regard to the fact that there has not been an unanticipated change in an applicant’s circumstances and also to the medical certificate provided in respect of the applicant’s sister. While the Tribunal acknowledges that the medical certificate indicates that the sister has “poor control (sic) diabetes and a stress related disorder”. While these conditions may be beyond the applicant’s control they are not in themselves extraordinary. Although the general practitioner who provided the medical certificates indicated that it would be significant for the sister if a visa be granted, there was nothing to indicate why the diabetes is poorly controlled. Neither were any further details provided regarding the applicant’s sister’s stress related disorder. In the circumstances, the Tribunal was not convinced the health of the applicant’s sister provide the exceptional circumstances for the grant of the visa.

42) The Tribunal has also considered whether the applicant is seeking to remain in Australia to provide assistance or support due to the death, serious illness or serious medical condition of a member of the applicant’s close family in Australia. In this context, the Tribunal has carefully reviewed the evidence regarding the visa applicant’s nephew. The Tribunal acknowledges that he has been diagnosed with “Level 2 autism, extremely low adaptive function, global developmental delay, inattention and motor restlessness[2]. The Tribunal is prepared to accept that it is difficult for the visa applicant’s sister to manage the demands on her, but in the Tribunal’s view there is nothing particularly exceptional, unusual or extraordinary about a young mother in a comparable situation managing the demands on her.

[2] QT Speech Therapy and Learning Centre Speech Pathology Progress Report, 18 August 2004.

43) While the Tribunal is sympathetic to the family’s situation, overall, the Tribunal is not persuaded that exceptional circumstances exist for the grant of the visa in this case. The Tribunal finds the applicant does not satisfy the requirements in cl 600.215.

DECISION

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

Hearing date/s: 30 October 2024
Representative for the Applicant: Mrs Pauline Lam (MARN: 9476142)