Ventura Silva (Migration)

[2024] AATA 1444

Ventura Silva (Migration) [2024] AATA 1444 (17 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Jeny Ventura Silva

REPRESENTATIVE:  Mr Paul Joseph Smith

CASE NUMBER:  2301496

HOME AFFAIRS REFERENCE(S):          BCC2022/3993148

MEMBER:Scott Clarey

DATE:17 April 2024

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:

·     Public Interest Criterion 3004 for the purposes of cl.600.223(2) of Schedule 2 to the Regulations.

Statement made on 17 April 2024 at 12:51pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – not holder of substantive visa at time of application – Schedule 3 criteria – whether factors beyond applicant’s control – dependent on daughter for language support and other assistance related to the visa application – daughter’s medical condition – compelling reasons for granting the visa – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 600.223; Schedule 3, Criterion 3004

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 on 20 January 2023 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).

2. The applicant (Ms Jeny Ventura Silva, herein Ms Silva) applied for the visa on 25 September 2022. 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 delegate refused to grant the visa on the basis that Ms Silva did not satisfy cl.600.223(2) because at the time he applied for the visa she did not hold a relevant substantive visa and she did not satisfy criterion 3004 in Schedule 3 to the Regulations.

4. Ms Silva appeared before the Tribunal (via teleconference) on 28 March 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Patricia Testoni, a social worker familiar with Ms Silva’s and her daughter’s circumstances. The Tribunal hearing was conducted with the assistance of an interpreter in the Portuguese and English languages. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Relevant background

6. Ms Silva is a 75-year-old citizen of Brazil. She last arrived in Australia in June 2022 on a on a Visitor (Tourist) Class FA subclass 600 visa valid until 24 September 2022. On 24 September 2022 this visa ceased. As was noted in the delegate’s decision record (a copy of which was provided to the Tribunal by the applicant), 24 September 2022 was the last day Ms Silva held a substantive visa in Australia. I note that it is not in dispute that Ms Silva was not the holder of a substantive visa on 25 September 2022 when the application under review was lodged. The purpose of Ms Silva visit to Australia was to see her daughter (Ms Stepien), who is an Australian citizen. During Ms Silva’s visit to Australia, Ms Stepien’s health declined rapidly and seriously. Ms Stepien suffered a heart attack in December 2022 that resulted in a severe acquired brain injury and the need for permanent high-level care for basic functions (discussed further below).

   Evidence before the Tribunal

7. I note that in his submissions emailed to the Tribunal prior to the hearing, Ms Silva’s representative outlined various arguments for why there were compelling reasons for the grant of the visa and why there were factors beyond her control that contributed to the application being lodged after Ms Silva’s last substantive visa had ceased on 24 September 2022. In a submission (dated 27 March 2024), Ms Silva’s representative outlined the reasons as follows (in part and unedited):

   Factors Beyond their Control

   Ms Ventura Silva travelled to Australia in June 2022 to provide practical and emotional support to her daughter Paula Stepien who was suffering a range of serious health conditions that deteriorated during her stay. Each week Paula Stepien was attending multiple medical appointment for treatment of existing conditions and attempts to diagnose new illnesses as they developed. At this time Paula Stepien was also experiencing a bitter family law case over custody and access to her children. Ms Ventura Silva is an elderly person without English language skills and limited technical / communication skills. During her trips to Australia Ms Ventura Silva relied on her daughter for decision making and arranging her visa application and travels to and from Australia. During the three month period of the previous visa from June to September 2022, Paula Stepien had her employment terminated due to physical incapacity and had developed cognitive impairment. This was an extraordinarily difficult period for Ms Ventura Silva, trying to support her daughter whose health was failing and trying to care for grandchildren during agreed access periods and maintain a family home. With respect we submit that these range of external factors were beyond the control of Ms Ventura Silva and led to this visa application being lodged a day after the expiry of the previous visa.

   Compelling Reasons

   Unfortunately, there are many compelling reasons for the grant of a further visa to Ms Ventura Silva. The delegate noted that a request for further information was sent to Ms Ventura Silva but she did not reply. This was the period of time soon after Paula Stepien was in intensive care at St Vincent’s Hospital after suffering severe hypoxic brain injuries following a heart attack while being treated in hospital.

   Attached are reports from health professionals and Government agencies confirming the grave health of Paula Stepien and the role of Ms Ventura Silva as a carer.

   We urge the Tribunal to decide in favour of the review applicant to confirm that Schedule 3004 is satisfied as there were a range of factors beyond the control of Ms Ventura Silva leading to the late application and the extraordinarily compelling circumstances in relation to the health of her daughter Paula Stepien.

8. The Tribunal also received several other submissions related to Ms Stepien’s serious health issues, including reports from her GP, NDIS documents relating to her approved care, a rehabilitation care plan from Caufield hospital, a letter from a social worker from Caulfield hospital, and another GP medical letter submitted post hearing.

9. I note from a report submitted by Dr Jessica Ho regarding Ms Stepien’s health that she has a permanent and severe ‘hypoxic brain injury’ that was sustained following a cardiac arrest in December 2022. Since this event in December 2022, Ms Stepien is wheelchair bound, non-verbal and she has ‘no chance of meaningful recovery’. According to the report, Ms Stepien requires ‘full-time 24-hour care from at least two carers for all care needs (feeding, toilet, washing)’. Based on this report and several other medical submissions relating to Ms Stepien’s health, I accept that she has a severe and permanent brain injury, sustained following a heart attack in December 2022, that she is not expected to recover from and as a result has very high care needs to assist her to perform basic daily functions. 

10. While I acknowledge that this tragic medical episode and outcome occurred after 24 September 2022 when Ms Silva’s last substantive visa ceased, I accept from the various medical evidence submitted that the period preceding her heart attack, including in September 2022, was characterised by Ms Stepien’s very serious ill health that included a range of debilitating and confounding symptoms. I note from medical documentation provided to the Tribunal that during this period in September 2022 Ms Stepien was taking over 20 separate medications, and was under the care of several specialists who were trying to get to the bottom of her range of serious symptoms. I accept that this situation related to Ms Stepien’s rapidly deteriorating health put the whole family under intense pressure during this period and led to the circumstances where Ms Silva, who was largely dependent on her daughter for language support and other assistance related to her visa application, did not apply for the visa under review prior to her last substantive visa ceasing on 24 September 2022. I accept that these factors amount to factors beyond Ms Silva’s control.

    FINDINGS

11. I find that Ms Silva was in Australia at the time of application on 25 September 2022 and did not hold a substantive visa at that time. I find that the last substantive visa she held was a subclass 600 Visitor visa which expired on 24 September 2022, one day prior. Having considered all of the evidence before me, including various legal and medical submissions, I accept that due to the stress and confusion and  of their family circumstances at the time the visa expired in September 2022 (related to Ms Stepien’s severe ill health), Ms Silva failed to apply for a further stay before her last substantive expired. Consequently, I am satisfied that she was not the holder of a substantive visa because of factors beyond her control. Therefore, the Tribunal finds that the applicant meets the requirements of criterion 3004(c).

12. I am also satisfied, on the evidence before me, that there are compelling reasons for granting the visa. It is noted that the delegate was of the same view. Therefore, I find that Ms Silva meets the requirements of criterion 3004(d). I am also satisfied that Ms Silva has complied substantially with the conditions that applied to her last substantive visa (other than a condition of which she was in breach solely because the visa ceased to be in effect) and the subsequent Bridging visa. Therefore, I find that Ms Silva meets the requirements of criterion 3004(e)(ii).

13. I am satisfied that Ms Silva would have been entitled to be granted a visa of the class applied for if she had applied for the visa on the day when she last held a substantive visa. Therefore, I find that Ms Silva meets the requirements of criterion 3004(f). I am also satisfied that Ms Silva intends to comply with any conditions subject to which the visa is granted. Therefore, the Tribunal finds that the applicant meets the requirements of criterion 3004(g). Criterion 3004(h) does not apply in this case.

14. In view of the above, it follows that I find that Ms Silva meets the requirements of criterion 3004 in its entirety.

    DECISION

15. 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:

    ·Public Interest Criterion 3004 for the purposes of cl.600.223(2) of Schedule 2 to the Regulations.

    Scott Clarey
    Member