Tran (Migration)

[2020] AATA 4064

Tran (Migration) [2020] AATA 4064 (28 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Thanh Hue Tran

VISA APPLICANT:  Ms Thi Nho Nguyen

CASE NUMBER:  1837467

HOME AFFAIRS REFERENCE(S):          BCC2018/3654994

MEMBER:Moira Brophy

DATE:28 September 2020

PLACE OF DECISION:  Sydney

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

Statement made on 28 September 2020 at 2:45pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – previous visa overstay within three years before application made – compassionate or compelling circumstances – review applicant has four children, including one with neurodevelopmental disorder – review applicant’s physical and mental health – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cl 600.213(1), Schedule 4, criterion 4014(1)(b), (4)

CASES
Kaur v MIBP [2017] FCAFC 184
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 9 November 2018 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 26 September 2018. 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.

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.600.211, which requires the visa applicant to satisfy the Minister that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.213 because they did not satisfy Public Interest Criterion 4014, because they were affected by a risk factor in that they had previously overstayed their visa. The present application was not made more than three years after the visa applicant had departed Australia.

5. The review applicant, Ms Thanh Hue Tran appeared before the Tribunal on 28 September 2020 to give evidence and present arguments. The Tribunal attempted to call the visa applicant Ms Thi Nho Nguyen, at the appointed time but there was no answer. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The review applicant Ms Thanh Hue Tran is an Australian citizen. The current visa application is for her mother Ms Thi Nho Nguyen to visit her in Australia to assist her with the care of her four children.

8. The issue in the present case is whether the applicant meets cl.600.213(1), which specifies that at the time of decision the applicant must satisfy specified public interest criteria as set out in Schedule 4 to the Regulations, including PIC 4014.

9. Public Interest Criterion (PIC) 4014 sets out a number of ways in which an applicant is affected by a 'risk factor'. If an applicant is affected by a risk factor, then PIC 4014 will only be satisfied if either the present visa application was made more than 3 years after the relevant departure, or if the Minister is satisfied that compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, permanent resident or eligible New Zealand citizen, justify the granting of the visa within 3 years after the departure.

   Is the applicant affected by a risk factor?

10. In the present case, the delegate found the applicant was affected by a risk factor because she departed Australia as an unlawful non-citizen more than 28 days after her last substantive visa, a Visitor (subclass 600) visa, ceased to be in effect. As such the Tribunal is satisfied the applicant is affected by a risk factor as referred to in subclause 4014(4).

11. As the applicant is affected by a risk factor for PIC 4014, the Tribunal must consider whether the applicant satisfies PIC 4014(1)(a) or (b).

    Was the present visa application made more than 3 years after the cancellation?

12. If an applicant is affected by a risk factor, PIC 4014 can be satisfied if the visa application was made more than 3 years after the departure of the person from Australia (PIC 4014(1)(a)). The current visa application was made on 26 September 2018. The applicant departed Australia on 25 March 2018.

13. Hence the 3-year period is from that date until 25 March 2021.

14. As the visa application was not made more than 3 years after the cancellation of the visa in question, the applicant does not satisfy PIC 4014(1)(a).

    Are there compassionate or compelling circumstances that justify the granting of the visa?

15. The requirements of PIC 4014 may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (as defined in r.1.03), that justify the granting of the visa. The decision-maker must first be satisfied that there are such circumstances, then must consider whether to exercise the discretion to waive the requirements, having regard to those circumstances: Kaur v MIBP [2017] FCAFC 184.

16. 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.

17. The ordinary meaning of 'compassionate' relates to feelings of sympathy, sorrow, pity or concern for others.

18. For the following reasons, the Tribunal is satisfied that the requirements should not be waived.

19. There is no information before the Tribunal that there are any compelling circumstances that affect the interests of Australia which would justify the granting of the visa.

20. The only family members of the visa applicant who is an Australian citizen or permanent residents in Australia is her daughter and her four children.

21. As detailed above, the applicant departed Australia on 25 March 2018. The review applicant has not seen her mother since that time. She told the Tribunal she was the only child of the review applicant. She came to Australia on a Partner visa on 19 October 2008. She has had four children since then. Her marriage has broken down and she now lives alone in rented accommodation with her children. Her youngest child who is not yet two years old has special needs in that he has Downs Syndrome.  When asked about his development at the time of hearing the review applicant said he was now able to sit up and he was eating normally \. He requires constant supervision and requires having someone to feed him. The review applicant said that he will go to a special school when he is two years old. The doctors with arrange that. The review applicant said she did not know where that school was but she is able to drive and has a car so she would be able to take him to and from the school. When asked what help was available to her now the review applicant said there were organisations that were willing to offer her assistance and care but she had not availed herself of those because she felt she did not want other people in her home. The older children did not like other people being in their home. A counsellor used to come to the home to offer counselling to the review applicant, but she felt she no longer needed that assistance.

22. The review applicant told the Tribunal she had no other family members in Australia. The fathers of the children were not involved with their emotional or financial care. She managed on her own.

23. The review applicant spoke of her need to have her mother be able to come to Australia to provide her with support and care. Since she was last in Australia, she has had a very stressful time in that she had her fourth child who had high needs. She said she herself was suffering from diabetes, back ache and depression. When asked what assistance she was getting for her depression she said she bottled things up a lot and she cries a lot. She does not socialise much. She told the Tribunal she does not take medication and the doctor had advised it was normal to feel the way she did, and she needed to get out more often. She said she was tired from looking after the children and that she had suffered a lot the last few years.

24. The Tribunal was not able to discuss with the visa applicant the circumstances that had led to her overstaying her last visa by some seven months. The review applicant claimed it was an inadvertent error that was unlikely to be repeated. An examination of the visa applicant’s travel records to Australia are indicative of a person who has consistently abided by their visa conditions. The Tribunal was mindful the three-year exclusion period would end on 25 March 2021.

25. Having regard to the totality of the evidence available to the Tribunal and in all the circumstances of this case, the Tribunal is not satisfied that are compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen which justify the grant of the visa within 3 years after the date of departure from Australia.

26. The visa applicant therefore does not satisfy PIC 4014 and hence does not meet the criterion in cl.600.213(1).

    DECISION

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

    Moira Brophy
    Member