1713724 (Migration)

[2018] AATA 5285

1713724 (Migration) [2018] AATA 5285 (13 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1713724

MEMBER:Russell Matheson

DATE:13 December 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Contributory Parent (Migrant) (Class CA) visa.

Statement made on 13 December 2018 at 3:10pm

CATCHWORDS
MIGRATION – Contributory Parent (Migrant) (Class CA) visa – health criterion not met – non-migrating partner with medical condition – credibility issues – withdrawal of non-migrating spouse not made until adverse health findings – divorce fabricated to strengthen visa outcome – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 65
Migration Regulations 1994, Schedule 2, cl 143.230, PIC 4005, rr 1.12, 2.25A

CASES
Ramlu v MIMIA [2005] FMCA 1735
Robinson v MIMIA (2005) 148 FCR 182

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 13 June 2017 to refuse to grant the visa applicant a Contributory Parent (Migrant) (Class CA) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 15 July 2014. The delegate refused to grant the visa on the basis that the visa applicant (now referred to as the applicant) did not satisfy cl.143.230 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4005 of Schedule 4 to the Regulations was not met by a non-migrating member of her family unit (MOFU).

3. The review applicant appeared before the Tribunal on 12 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and the review applicant’s [brother]. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

4. The review applicant was not represented in relation to the review.

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

   BACKGROUND

6. On 15 July 2014 the applicant [lodged] a subclass 143 Parent Contributory Visa listing [Mr A] as her non-migrating spouse.

7. Health assessments were completed by both the main applicant[and] the non-migrating spouse, [Mr A].

8. The results of the medical for [Mr A], non-migrating spouse, were Does not Meet and an Invitation to Comment letter was then sent requesting a response and supporting evidence to be submitted to the medical officer.

9. On 28 February 2017, the applicant[emailed] the Department of Immigration to advise that she would like to withdraw the non-migrating applicant from the application and that [Mr A] was not a dependent. She made claims that she and her spouse, [Mr A], were in fact separated since October 2014.

10. On the 7th of March 2017, [the applicant] was asked to provide further evidence of separation claims through an Invitation to Comment letter, and on 28th of March, a response was received with some documents including receipts and a statement issued by the Ward of Public Security submitted in support of the claimed separation.

11. The document issued by the Ward of Public Security purporting that [the applicant] resided at her parents’ address [Address 1], Ho Chi Minh City (HCMC) is dated [February] 2017 and does not mention how long [the applicant] stayed at the claimed address.

12. Further investigation into claims and evidence provided, indicated the claims that the applicant and the non-migrating spouse were separated since October 2014 were non-genuine.

13. On 24 April 2017, a final 28 days was provided to the applicants to submit further reports from a medical officer or a specialist to support the non-migrating spouse's medical condition. No additional medical information has been provided to date.

14. On 17 May 2017 additional information was received regarding claims of separation including a response letter asserting that [Mr A] is no longer part of  [the applicant]’s family unit, bank statements, a property title and donation contract, statutory declarations –however, no additional health information was received.

    Relevant law

    Clause 143.230 states that:

    If the applicant was not the holder of a Subclass 173 (Contributory Parent)(Temporary) visa at the time of application, each member of the family unit of the applicant who is not an applicant for a Subclass 143 (Contributory Parent) visa must satisfy the public interest criteria mentioned in the item in the table that relates to the applicant.

15. If the applicant was not the holder of a substituted Subclass 600 visa at the time of application the public interest criteria to be satisfied by the member of the family unit are, 4001, 4002, 4003, 4004 and 4005.

    Public interest criterion 4005

    (1)       The applicant:

    (aa)if the applicant is in a class of persons specified by the Minister in an instrument in writing for this paragraph:

    (i)must undertake any medical assessment specified in the instrument; and

    (ii)must be assessed by the person specified in the instrument;

    unless a Medical Officer of the Commonwealth decides otherwise; and

    (ab)must comply with any request by a Medical Officer of the Commonwealth to undertake a medical assessment; and

    (a)is free from tuberculosis; and

    (b)is free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community; and

    (c)is free from a disease or condition in relation to which:

    (i)a person who has it would be likely to:

    (A)require health care or community services; or

    (B)meet the medical criteria for the provision of a community service;

    during the period described in subclause (2); and

    (ii)the provision of the health care or community services would be likely to:

    (A)result in a significant cost to the Australian community in the areas of health care and community services; or

    (B)prejudice the access of an Australian citizen or permanent resident to health care or community services;

    regardless of whether the health care or community services will actually be used in connection with the applicant; and

    (d)if the applicant is a person from whom a Medical Officer of the Commonwealth has requested a signed undertaking to present himself or herself to a health authority in the State or Territory of intended residence in Australia for a follow-up medical assessment — has provided the undertaking.

    (2)For subparagraph (1) (c) (i), the period is:

    (a)for an application for a permanent visa — the period commencing when the application is made; or

    (b)for an application for a temporary visa:

    (i)the period for which the Minister intends to grant the visa; or

    (ii)if the visa is of a subclass specified by the Minister in an instrument in writing for this subparagraph — the period commencing when the application is made.

    (3)If:

    (a)the applicant applies for a temporary visa; and

    (b)the subclass being applied for is not specified by the Minister in an instrument in writing made for subparagraph (2) (b) (ii);

16. The reference in sub-subparagraph (1) (c) (ii) (A) to health care and community services does not include the health care and community services specified by the Minister in an instrument in writing made for this subclause.

    Regulation 1.12: Member of the family unit

    Scope

    (1)  This regulation has effect for the purposes of the definition (the main definition) of member of the family unit in subsection 5(1) of the Act.

    General rule

    (2)  A person is a member of the family unit of another person (the family head) if the person:

    (a)  is a spouse or de facto partner of the family head; or

    (b)  is a child  or step‑child of the family head or of a spouse or de facto partner of the family head (other than a child or step‑child who is engaged to be married or has a spouse or de facto partner) and:

    (i)  has not turned 18; or

    (ii)  has turned 18, but has not turned 23, and is dependent on the family head or on the spouse or de facto partner of the family head; or

    (iii)  has turned 23 and is under paragraph 1.05A(1)(b) dependent on the family head or on the spouse or de facto partner of the family head; or

    (c)  is a dependent child of a person who meets the conditions in paragraph (b).

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. Clause.143.230 requires that each member of the family unit of the primary applicant who is an applicant for a sub-class 143 visa is a person who satisfies the PIC 4005. This may be referred to as the ‘one fails all fail’ criteria.

18. The issue in this review is whether the non-migrating member of the family unit meets PIC 4005 as required by the criteria for the grant of the visa.

19. PIC 4005, as it applies to this case, requires the applicant, in certain circumstances, to undergo medical assessment, and to be free of certain diseases or conditions that may impact on the community. The applicant in this case failed to meet cl.143.230 because the applicant’s non-migrating spouse is considered a member of the family unit and is required to meet relevant criteria set out in legislation, including PIC 4005. A Medical Officer of the Commonwealth (MOC) has found that [Mr A] (the non-migrating MOFU) does not meet the health requirement as outlined in PIC 4005 and refused the applicant’s application.

    Is the non-migrating person named a member of the family unit of the first named applicant?

20. On 15 July 2014, the applicant [lodged] a subclass 143 Parent Contributory Visa listing [Mr A] as her non-migrating spouse.

21. On 28th February 2017, the applicant emailed the Department to advise that she would like to withdraw the non-migrating applicant from the application and that [Mr A] was not a dependent. She made claims that she and her spouse, [Mr A], were in fact separated since October 2014.

22. The review applicant provided the following documents to the Tribunal:

    ·A divorce application between the visa applicant and spouse granted [in] September 2017.

    ·A signed agreement of separated living between the applicant and spouse from [a government] Office dated [October] 2014.

    ·A document issued by the Ward of Public Security at the hearing purporting that [the applicant] resided at her parents’ address ([Address 1], HCMC, dated [February] 2017

    ·A transfer of ownership of residential property from the visa applicant and spouse to their son dated [January] 2015.

    ·Two money transfer receipts dated [March] 2014 and [August] 2016.

    ·A statutory declaration from [a] bank clerk in Vietnam.

    ·A statutory declaration from the brother of the visa applicant dated 30 August 2017.

23. The review applicant provided to the Tribunal a notarised divorce certificate and states that her parents divorced in September 2017; she told the Tribunal that her mother was no longer married to her father (non-migrating spouse). The review applicant argues that her father is no longer a spouse and not a member of the family unit of her mother, so that the health requirements do not apply to her mother. For the reasons that follow, the Tribunal does not accept that submission.

24. It is not sufficient, in the Tribunal’s view, to arrange a formal divorce. The Tribunal accepts that the primary visa applicant and her spouse have formally divorced.

25. In regard to the signed agreement of separated living dated [October] 2014, the document shows the applicants permanent residence as [Address 2], HCMC, the same as her spouse. The document shows her temporary address as [Address 1], HCMC (her mother’s address). The document does not indicate any period of time or whether the applicant has ever resided at her mother’s address. The Tribunal places little weight on the document as evidence of the primary visa applicant being separated from her husband as she never activated any divorce proceedings prior to lodging her visa application and the parties maintained their assets together equally. Based on the evidence provided the Tribunal finds there is no convincing evidence indicating the applicant is or continues to be separated from her spouse on a permanent basis.    

26. The review applicant also provided a document of issued by the Ward of Public Security at the hearing which is an application by the applicant for the authority to confirm that the applicant [is] currently temporarily residing at her parents’ address ([Address 1], HCMC, dated  [February] 2017. The document does not indicate any length of time or details when the applicant resided at the address on a temporary basis or any basis at all; it only states that she has registered for temporary residence at the address. Based on the evidence provided the Tribunal finds that temporary does not mean permanently in regard to the applicant living at the claimed address and gives no indication of the applicant ever being separated from her husband for any length of time.     

27. In regard to the transfer of residential property owned by the visa applicant and her former spouse the Tribunal accepts that the parties transferred their property into the name of their son [in] January 2015, the Tribunal accepts that they dispersed their jointly owned property and assets after the visa application was made to strengthen the applicant’s case for the grant of a visa. Based on the evidence provided there is no convincing evidence the non-migrating person named ([Mr A]) is not a member of the family unit.

28. The Tribunal notes that the review applicant has sent a number of money transfers to the applicant for the period [March] 2014 to [August] 2016 that were all addressed to the applicant living at her permanent residency at [Address 2], Ho Chi Minh City in Vietnam. The Tribunal indicated to the review applicant all the receipts indicated the applicant lived at the same address as her father the non-migrating spouse. The review applicant said that she had set up an account to transfer money in 2011 and the address had remained the same. She further stated that she sent the money transfers by telephone and the recipient did not have to provide a residential address when collecting the money. The review applicant provided as evidence a statutory declaration from [a] bank clerk in Ho Chi Minh City, Vietnam stating that he co-operated with Australian money transfer services between 2014 and 2016 delivering money to the applicant. He further states that the receiver of the money is contacted by telephone and only has to produce their name and photographic evidence such as a passport or National Identification Card to receive the money. [the bank clerk] also states that the nominated address for the receiver in the company database or the address shown on the applicant’s National Identification Card is not important. He further states that the applicant did not receive any money at her nominated address but she received it somewhere else and he believes that her address has not been updated in the company database since it was established. The Tribunal accepts that a person may be able to receive money transfers by just producing their name and photographic evidence but also finds the address is an integral detail regarding cross referencing to ascertain a person’s identity particularly regarding fraud. The Tribunal places no weight on [the bank clerk]’s statement that the applicant does not receive money at her nominated address but receives it somewhere else because he did not provide any evidence as to how he came to this assumption.  Based on the evidence provided at the hearing the Tribunal finds there is no convincing evidence to indicate that the applicant was not living at her permanent residency as identified in numerous documents and on her National Identity Card. The Tribunal is of the view the applicant continues to live at her permanent address as indicated in the documents provided as evidence.

29. The applicant told the Tribunal that she had been permanently residing at her parents address since October 2014 when she separated from her husband. The Tribunal questioned the applicant as to why she had not changed her permanent residency address as indicated on her National Identity Card to her parents address if she was living there permanently. The applicant told the Tribunal that it takes a lot of time to apply for a change of address and she had not felt that it was important. She further stated that she was still a part owner of the property until she divorced. There is no convincing evidence before the Tribunal that the applicant has been living with her parents since October 2014. Based on the evidence provided the Tribunal finds the claims of separation appear to be contrived for the purposes of obtaining the visa.  

30. The review applicant provided as evidence a copy of a statutory declaration made by the applicant’s brother [dated] 30 August 2017. He states that he has lived with the visa applicant at their parent’s address [Address 1] since 2014 until today ([August] 2017) because she is separated from her husband. The Tribunal asked the applicant who she had been living with from October 2014, the claimed date of separation until the present time. The applicant responded that she had been living with her [sister] [and] her parents. The tribunal asked if any other family member or person had lived with her during that time at her parents’ address. The applicant replied in the negative. She further stated that no other person had been living with them until now. The applicant upon questioning further stated that her [brother] [visits] occasionally. The applicant also said that her [brother] used to live at the address but had married and moved out a long time ago around 2015 or 2016. The Tribunal informed the applicant she had contradicted her statement that she had lived with her sister and parents only from 2014 to the present time. The applicant said that is correct and that her brother [had] moved out before 2014. 

    Section 359AA

31. The Tribunal is mindful that the applicant’s evidence and the evidence provided by the applicant’s [brother] in his statutory declaration were inconsistent and contradicted each other. This lead the Tribunal to question the applicant’s credibility in regard to the evidence provided. These inconsistencies and contradictions were discussed with the review applicant in accordance with s.359AA of the Act. The Tribunal informed the review applicant that it wished to put new information that it would consider being the reason or part of the reason for affirming the decision. The Tribunal explained the relevance and the consequences of the information to the applicant and invited the applicant to comment on or respond to the information. The Tribunal told the review applicant that she may respond to the information orally or in writing. The applicant was also informed that she may seek additional time to comment on or respond to the information. The applicant responded orally at the hearing.

    The Tribunal put to the review applicant the evidence provided by the applicant at the hearing and the information provided in her brother’s statutory declaration dated 30 August 2017 (para 31) in regard to the applicant’s living arrangements.

    The review applicant stated that the applicant’s brother [does] not live there; he uses the address for his registered business and stays overnight if it is too late to go home. She also stated that he does not live there ‘24/7’, he sleeps there for two to three days at a time and has dinner at the house every night. The review applicant also stated that her aunty and her family live permanently with her grandparents at the same address. The Tribunal asked why the applicant did not mention this during the hearing the review applicant responded that she did not mention it because her aunty was not on the title.

    Based on the evidence provided to the Tribunal the Tribunal finds the review applicant and her brother lack credibility and have fabricated evidence to strengthen the case for the grant of the visa. The Tribunal does not accept the review applicant’s response as credible because her brother has made a statutory declaration stating that he lived with the visa applicant and their parents on a permanent basis at their address and the applicant stated that this did not occur and she lived with her sister and her parents at the address. The Tribunal does not accept that the applicant forgot to mention that other family members also lived at the address because they were not on the title because the Tribunal questioned the applicant on a number of occasions as to who was actually living with her at the parents’ address.

1. On 28 February 2017, the applicant[emailed] the Department to advise that she would like to withdraw the non-migrating applicant from the application and that [Mr A] was not a dependent. She made claims that she and her spouse, [Mr A], were in fact separated since October 2014. The Tribunal asked the applicant and review applicant why it took so long for the applicant to notify the Department of her situation. The applicant said that she had already separated from her husband and they were about to divorce. She further stated that she was not familiar with the visa application and she will not sponsor her former husband to come to Australia. The review applicant told the Tribunal that her father’s name was dropped from the visa application because there was a misunderstanding with the communication and there was a translation issue when they applied for the visa. She further stated they did not know the meaning of a non-migrating spouse. She also said that she believed that her father was added to the visa application after the health check by the Department. The review applicant stated that there was never any intention to bring her father to Australia because he does not like to leave his comfort zone. The notification to withdraw the non-migrating spouse was not made until the adverse health findings (30 November 2016), and appear to have been made in response to that decision. It was not until September 2017 that the couple arranged the divorce papers. Given the timing of these events, the Tribunal has formed the view that these events-withdrawal of the non-migrating spouse from the visa application and the couple only formally divorcing in September 2017, were arranged in response to the adverse health findings and to enable the visa applicant to obtain her visa.

2. The review applicant told the Tribunal that she accepts that her parents were legally married at the time of the visa application, but practically they were not spouses under the same roof for a long time as witnessed by all the family members. She further stated her father had a gambling and drinking problem and was violent towards her mother who sought shelter with her grandparents on occasions. This claim was supported by the review applicant’s brother who also provided evidence to the Tribunal. The review applicant and her brother did not provide any convincing or persuasive evidence in regard to their father’s behaviour towards their mother or that they were genuinely separated at the time of this application.

3. The Tribunal does not accept that the visa applicant and her former spouse had been living separately under one roof for many years prior to the visa application or that they have genuinely separated, even though they formally divorced in 2017. The Tribunal has formed the view that the divorce and claimed separation were arranged only to enable the visa applicant the grant of her visa. The Tribunal finds that the non-migrating (secondary) applicant is a member of the family unit of the visa applicant. He is required to meet the health requirements.

   Is the applicant free from the relevant diseases or conditions (PIC 4005(1)(a), (b), (c))?

4. As [Mr A] is still considered a member of the family unit (non-migrating) on this application, he is required to meet the relevant criteria set out in legislation, including cl.143.230. The the MOC has found that [Mr A] does not meet the health requirement as outlined by Public Interest Criterion 4005.

5. PIC 4005(1)(a) and (b) require the applicant to be free from tuberculosis and free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community.

6. PIC 4005(1)(c) requires the applicant to be free from a disease or condition which would be likely to require health care or community services or which would meet the medical criteria for provision of a community service during the specified period; and  provision of the health care or community services (regardless of whether it will actually be used in connection with the applicant) would be likely to: result in a significant cost to the Australian community in the areas of health care and community services; or prejudice access of an Australian citizen or permanent resident to health care or community services. For specified temporary visas, certain specified health care and community service are excluded from this consideration: PIC 4005(3).

7. As the applicant in this case has applied for a permanent visa, the exclusion provision in PIC 4005(3) does not apply.

8. In determining whether a person meets PIC 4005(1)(a), (b) or (c), r.2.25A requires the Tribunal to seek the opinion of a MOC unless: the application is for a temporary visa and there is no information known to Immigration to the effect that the person may not meet those requirements; or the application is for a permanent visa and made from a specified country and there is no information known to Immigration to the effect that the person may not meet those requirements.  Where an opinion of a MOC is required, the Tribunal must take it to be correct: r.2.25A(3).

   Is a MOC opinion required?

9. The review applicant provided a copy of the delegate’s primary visa refusal to the Tribunal. It indicates that during the processing of the Contributory Parent (Migrant) (Class CA) visa application the applicants non-migrating spouse was required to undertake health examinations as a member of the family unit and the MOC formed the opinion that he did not meet the health requirements.

10. The Tribunal finds that the applicant was not the holder of a Subclass 173 (Contributory Parent (Temporary)) visa, or a substituted Subclass 600 visa at the time of her visa application and further she applied for the Contributory Parent (Migrant) (Class CA) visa on the basis that her spouse is a non-migrating member of the family unit. Therefore her spouse must satisfy the PIC 4005 requirements for the purpose of cl.143.230.

11. On the evidence before the Tribunal, a MOC opinion is required. As noted above, the Tribunal must take the MOC opinion as correct, but must first be satisfied the MOC has applied the correct test in forming the opinion: Robinson v MIMIA (2005) 148 FCR 182 and Ramlu v MIMIA [2005] FMCA 1735. That is, the opinion must identify the medical condition to which the public interest criterion has been applied, and the form or level of the condition suffered by the applicant, and the MOC must have applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition.

12. The MOC opinion dated 30 November 2016 indicates that [Mr A] is [an age] year-old person with [a medical condition], and currently requires assistance in most aspects of activities of daily living. Further, this condition is likely to require health care or community services and provision of these health care and/or community services would represent a significant cost to the community. During the course of the hearing the applicant, review applicant and witness all indicated that the non-migrating MOFU’s health condition has remained the same. There is no evidence of any change in the non-migrating MOFU’s health or any evidence to suggest that the MOC opinion cannot be relied upon at the time of decision.    

13. Accordingly, based on the opinion of the MOC, the applicant does not satisfy PIC 4005(1)(c)(ii)(A) in Schedule 4 to the Regulations.

14. There is no evidence before the Tribunal that the MOC applied the wrong test in this matter. Specifically, the Tribunal is satisfied that the MOC opinion identified [Mr A]’s condition to which PIC 4005 has been applied, ascertained the form or level of condition suffered by him and applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition. Accordingly the Tribunal is satisfied the MOC opinion is valid.

15. Based on the opinion of the MOC, the non-migrating MOFU does not satisfy PIC 4005(1)(c). The Tribunal has formed the view that he is a member of the family unit of the visa applicant. The Tribunal finds that the applicant does not meet cl.143.230.

    Conclusion

16. As the applicant has not satisfied the requirements of PIC 4005, the Tribunal must affirm the decision under review.

    DECISION

17. The Tribunal affirms the decision not to grant the visa applicants Contributory Parent (Migrant) (Class CA) visas.

    Russell Matheson
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    Schedule 4

    4005(1)       The applicant:

    (aa)if the applicant is in a class of persons specified by the Minister in an instrument in writing for this paragraph:

    (i)must undertake any medical assessment specified in the instrument; and

    (ii)must be assessed by the person specified in the instrument;

    unless a Medical Officer of the Commonwealth decides otherwise; and

    (ab)must comply with any request by a Medical Officer of the Commonwealth to undertake a medical assessment; and

    (a)is free from tuberculosis; and

    (b)is free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community; and

    (c)is free from a disease or condition in relation to which:

    (i)a person who has it would be likely to:

    (A)require health care or community services; or

    (B)meet the medical criteria for the provision of a community service;

    during the period described in subclause (2); and

    (ii)the provision of the health care or community services would be likely to:

    (A)result in a significant cost to the Australian community in the areas of health care and community services; or

    (B)prejudice the access of an Australian citizen or permanent resident to health care or community services;

    regardless of whether the health care or community services will actually be used in connection with the applicant; and

    (d)if the applicant is a person from whom a Medical Officer of the Commonwealth has requested a signed undertaking to present himself or herself to a health authority in the State or Territory of intended residence in Australia for a follow-up medical assessment — has provided the undertaking.

    (2)For subparagraph (1) (c) (i), the period is:

    (a)for an application for a permanent visa — the period commencing when the application is made; or

    (b)for an application for a temporary visa:

    (i)the period for which the Minister intends to grant the visa; or

    (ii)if the visa is of a subclass specified by the Minister in an instrument in writing for this subparagraph — the period commencing when the application is made.

    (3)If:

    (a)the applicant applies for a temporary visa; and

    (b)the subclass being applied for is not specified by the Minister in an instrument in writing made for subparagraph (2) (b) (ii);

    the reference in sub-subparagraph (1) (c) (ii) (A) to health care and community services does not include the health care and community services specified by the Minister in an instrument in writing made for this subclause.