2100971 (Migration) - [2024] AATA 335

2100971 (Migration) [2024] AATA 335 (17 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mrs Kim Uyen Kim (MARN: 1387806)
CASE NUMBER:  2100971
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Kira Raif
DATE:17 January 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 (Spouse) visa:
·PIC 4007(2)(b) for the purposes of cl 820.223 of Schedule 2 to the Regulations.

Statement made on 17 January 2024 at 2:37pm
CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – applicant did not meet the health requirements – lengthy relationship of six years – significant family connections in Australia – applicant has social, emotional and family ties to Australia – cost of treatment is not significant – PIC 4007(1)(c) may be waived subject to the applicant satisfying all other requirements for the visa – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 2.25A, Schedule 2, cl 820.223, Schedule 4, PIC 4007
CASES
Bui v MIMA (1999) 85 FCR 134
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 January 2021 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a national of Vietnam, born in [year]. He made the application for the visa on 11 July 2018. The delegate refused to grant the visa as the applicant did not satisfy cl 820.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4007 of Schedule 4 to the Regulations were not met. The applicant seeks review of the delegate’s decision.
The applicant appeared before the Tribunal on 17 January 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. 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 matter should be remitted for reconsideration.
Relevant law
The issue in this review is whether the visa applicant meets Public Interest Criterion (PIC) 4007 as required by the criteria for the grant of the visa. Public Interest Criterion 4007, 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. This last requirement may be waived in certain circumstances.
Clauses…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2100971 (Migration)

Details

AGLC: 2100971 (Migration) [2024] AATA 335
Case: [2024] AATA 335
Decision Date: 17 January 2024

CaseChat Overview and Summary

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, where the applicant had not met the prescribed health requirements. The applicant had established a lengthy relationship of six years with their partner, who held Australian citizenship, and had developed significant family and social connections within Australia. The cost of any necessary medical treatment was not considered significant.

The primary legal issue before the Tribunal was whether the criteria for waiving the health requirement under Public Interest Criterion (PIC) 4007(1)(c) could be satisfied, given the applicant's circumstances. This involved assessing whether the applicant met all other requirements for the visa, notwithstanding the health concerns.

The Tribunal found that the applicant's extensive social, emotional, and family ties to Australia, coupled with the length and genuineness of their relationship, weighed heavily in favour of granting the visa. The Tribunal determined that PIC 4007(2)(b) should be applied for the purposes of clause 820.223 of Schedule 2 to the Regulations, indicating that the health requirement could be waived. Consequently, the Tribunal remitted the application for the visa to the Minister for reconsideration, with a direction that the applicant meets the specified criteria for the Subclass 820 visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for the visa.DECISION The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 (Spouse) visa:·PIC 4007(2)(b) for the purposes of cl 820.223 of Schedule 2 to the Regulations.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

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