Chao (Migration)

[2022] AATA 5228

Chao (Migration) [2022] AATA 5228 (22 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chen-nan Chao

REPRESENTATIVE:  Ms Alice Graziotti

CASE NUMBER:  2004806

HOME AFFAIRS REFERENCE(S):          CLF2018/46607

MEMBER:Joseph Francis

DATE AND TIME OF

ORAL DECISION AND REASONS:         22 November 2022 at 12:30 pm (WA time)

DATE OF WRITTEN RECORD:                12 April 2023

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the decision under review with the direction that the applicant meets PIC 4020(1) for the purpose of clause 802.223.

Statement made on 12 April 2023 at 10:24am

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – misleading information in a previous visa application – intellectual disability from motor vehicle accident not disclosed – permanent diagnosis well after the first application – ability to answer the question – applicant unaware of the extent of disability – decision under review remitted    

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 802.223; Schedule 4, Public Interest Criteria 4005, 4007, 4020

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 March 2020 to refuse to grant the visa applicant a Child (Residence) (Class BT) Subclass 802 visa under the Migration Act 1958 (Cth) (the Act).

2. At the hearing on 22 November 2022 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. Mr Chao, on 7 May 2018 you applied for a Child Residence (Class BT) Child subclass 802 visa.  A delegate refused the visa application on 3 March 2020 and you then applied to this Tribunal for a review of that decision.

4. The visa was refused because the delegate was not satisfied you met PIC 4020(1) with regard to providing a bogus document or information that is false or misleading in a material particular to a relevant assessing authority, and in this matter to a Medical Officer of the Commonwealth.  In making a decision about your application today I must consider everything that yourself and your representative have provided to both the department and the Tribunal and the evidence that yourself and your witnesses have provided to me today and any arguments as to why the visa should be granted.

5. I am considering your application, as I mentioned at the start of the hearing, as if I was the original decision maker and I must follow the same laws and regulations that the delegate was required to follow.  I also mentioned that I am not bound by the delegate's decision in any way.

6. I have invited you to participate in a hearing today because I was not able to decide on the information that I had before me and I wanted to hear from you firsthand in today's hearing face to face.  And I believe I provided you the opportunity to give evidence and present your arguments relating to the issues in your case and I have received submissions and provided I believe ample opportunity for your representative to have given submissions during the hearing.  So you have attended today to fulfil that process and complete the hearing in front of the Tribunal.

7. We were also assisted today by a qualified interpreter, as required, from time to time during the hearing and neither yourself or your representative have raised any issues about the interpretation during the hearing.

8. The issue before the Tribunal today to determine is the matter and the question as to whether PIC 4020 should apply to your application or not.  In other words, the question of whether you provided false or misleading information as part of a visa application.  In this case the delegate was concerned about a previous visa application that was for a student visa.

9. Now a visa cannot be granted unless the relevant criteria specified in the Migration Act and the Migration Regulations is satisfied. Now, clause 802.223 of the Migration Regulations, well, the delegated determined that clause 802.223 of the Migration Regulations were not met by you on the date that they made the decision. Now, PIC 4020(1), and I will read it, it says that:

   There is no evidence before the Minister that the applicant has given or caused to be given to the Minister or an officer of the Tribunal during the review of a part 5 reviewable decision and a relevant assessing authority or a medical officer of the Commonwealth a bogus document or information that is false or misleading in a material particular in relation to the application for the visa.

   Which is A but in your instance B:

   A visa that the applicant held in the period of 12 months before the application was made.

10. It is a requirement of clause 802.223 that you satisfy Public Interest Criteria PIC 4020 contained in clause 4020 in schedule 4 of the Migration Regulations.

11. By way of background on 23 December 2014 the delegated noted that you provided evidence to the department that was to be considered of non‑genuine in nature and that visa application that we are considering today was lodged on 7 May 2018.  At the time of that application you held a Student subclass 572 visa.

12. One of the requirements that you needed to meet for the grant of a student visa that you previously held was the health requirement, which is Public Interest Criteria 4005.  The delegate noted that when attending the health examination that the applicant was required to declare all of his existing health conditions.  And on 23 December 2014 you completed a health examination, and you were assessed as meeting the health requirements by a Medical Officer of the Commonwealth based on the information that you declared during your health examination.

13. One of the questions in the health assessment answered by you is an ongoing physical or intellectual disability affecting your current or future ability to function independently or be able to work fulltime, including autism or development delay.  Now, at this question the delegate noted that you answered "No".

14. During the health examination it was reported that you had a motor vehicle accident in 2010, a motorcycle accident, resulting in a skull fracture requiring part skull replacement, a hip fracture requiring a total hip replacement, and you were in a coma for three weeks.  No brain injury with cognitive impairment, motor impairment, receptive language issues or memory impairment was reported.  And this is obviously different to the claims made in the Child subclass 802 visa application that we are considering today.

15. The delegate noted that when you lodged your application for the child visa application it was lodged on the basis that you were incapacitated for work due to a total or partial loss of your bodily or mental functions due to injuries that you sustained in that motorcycle accident in 2010.

16. You were then requested to undertake a medical examination to meet the health requirements PIC 4007.  Part of the application as part of that examination you provided evidence that you suffered from cognitive impairment, motor impairment, receptive language issues, and memory impairment as a result of that motorcycle accident.

17. As you declared a cognitive impairment and motor impairment as well as memory as a result of that accident these impairments would have been affecting, according to the delegate, the applicant at the time you completed your health assessment in 2014 and it is alleged you did not disclose that to the Medical Officer of the Commonwealth, the doctor that did the assessment.  And, therefore, the delegate determined that a result of you failing to declare that part of your injury with regard to your existing medical conditions you, therefore, provided false or misleading information to a Medical Officer of the Commonwealth for the purpose of the health requirements for the previous subclass Student 472 visa.

18. Now, I do note that it is clear from not just the evidence provided but also the delegate's decision that the physical injuries and the medical procedures that you went through following that injury in 2010 as a result of your accident were disclosed, were absolutely disclosed to the department and the medical officer.

19. So the key issue here is whether the question of non-disclosure of an intellectual disability as part of that visa application puts you in the situation where you breach PIC 4020(1).  Now, you first arrived here in Australia on a working holiday visa in 2012, two years after your accident.  You then held a student visa or held student visas until applying for this visa in 2018.

20. Fundamentally the date on which you received your diagnosis is pivotal to the Tribunal's decision.  And the Tribunal notes the delegate's decision record with regard to the substantive diagnosis date.  And the delegate wrote, I am taking an extract from this decision:

    Dr Wu then advised the applicant should see a neurologist or rehabilitation specialist due to the nature of his disability being a head injury and not a psychiatric illness.

21. On 11 December 2017 the applicant was referred to Dr John Cunningham, a consultant neurologist in South Fremantle, Western Australia.  Dr Cunningham provided a report dated 25 January 2018 confirming the applicant suffers from cognitive impairment, motor and receptive language issues, attenuation to memory, and right spastic hemisensory attenuation and homonymous hemianopia.

22. This was the first time you were given a permanent diagnosis for the physical and mental conditions you were suffering, so 25 January 2018.  So, in considering the refusal the delegate stated that you failed to declare that disability in 2014 for which you were not diagnosed with until January 2018.

23. I am also concerned that you may not have and may not have had the cognitive ability to correctly answer questions asked of you during that interview with the medical officer.  However, it is not for me to make a determination on that matter but it is worth noting and considering your ability to answer that question and whether you should be penalised even if you had known.

24. I do note that the extent of your physical injuries have always been declared and that it would be expected that given that declaration and given your injuries a medical officer might have explored further into the question of whether you may have also suffered from an intellectual disability.  I believe that is a fair and reasonable expectation for a medical examiner to have considered.

25. However, as the assessment was not made, as I mentioned, by Dr Cunningham until his report of 25 January 2018. It is, therefore, not reasonable to have expected you to have been aware of your diagnosis prior.  And in particular your difficulties with memory, language and cognitive ability that was in that report.

26. The issue before the Tribunal is essentially a question of time of knowledge and the Tribunal accepts that you were unaware of the extent of your disability until after you had applied for the student visa.  And, therefore, it is not reasonable for one to apply PIC 4020(1) in these circumstances.

27. The Tribunal finds that you were unaware of the extent of your disability until 25 January 2018 and based on this the Tribunal finds that the applicant meets PIC 4020(1) of PIC 4020 for the purpose of clause 802.223. And given that finding the appropriate course of action is to remit the application for reconsideration with the direction the applicant meets PIC 4020 for the purpose of clause 802.223.

    DECISION

28. The Tribunal remits the decision under review with the direction that the applicant meets PIC 4020(1) for the purpose of clause 802.223.

    Joseph Francis
    Member