CRUZ (Migration)

[2019] AATA 2075

CRUZ (Migration) [2019] AATA 2075 (11 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Raquel De Venecia CRUZ

CASE NUMBER:  1723302

DIBP REFERENCE(S):  CLF2015/20863

MEMBER:Russell Matheson

DATE:11 February 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 11 February 2019 at 9:45am

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – migrating or non-migrating members of primary applicant’s family unit must satisfy health requirement – spouse undergoing medical treatment – no intention of migrating to Australia – no intention to provide health assessments – not unreasonable to require spouse to undergo assessment – one fails-all fails criterion – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.12, Schedule 2, cl 836.224, Schedule 4, Public Interest Criterion, 4005

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 27 September 2017 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 31 March 2015. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.836.224 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 were not met.

3. The applicant appeared before the Tribunal on 29 January 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s daughter.    

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this review is whether the visa applicant meets cl.836.224(2)(b), which requires that each member of the family unit of the applicant who is not an applicant for a Subclass 836 visa must satisfy PIC 4005, unless the Minister is satisfied that it would be unreasonable to require the person to undergo an assessment in relation to that criterion.

6. Under cl.836.224, any migrating or non-migrating members of the primary applicant’s family unit must satisfy the health requirement. This is a “one fails-all fails” criterion. That is, if any member of the applicant’s family unit fails to meet the health requirement and no health waiver is available, no family member (including the applicant seeking to satisfy the primary criteria) can be granted a visa. The applicant’s spouse in this case who is a non-migrating member of the family unit must satisfy the health requirement unless the Minister is satisfied it would be unreasonable to require the person to undergo medical examinations.

7. In Form 47OF, the applicant declared that her marital status was “married”. She also stated at the hearing she is still married to her husband. A copy of the applicant’s marriage certificate establishes that the applicant married her husband in the United States of America (USA) on 26 June 1997.

8. At Question 22 on Form 47OF, the applicant declared that her partner would not be migrating with her. The applicant told the Tribunal that her husband has no intention of migrating to Australia.

9. The Tribunal is satisfied that the applicant’s spouse meets the definition of a member of the family unit as defined at r.1.12 of the Regulations. The Tribunal is also satisfied that the applicant’s spouse is not an applicant for a Subclass 836 visa.

10. On 13 June 2016, a letter was sent to the applicant requesting she provide full permanent health examinations for her husband.

11. On 18 July 2016, the applicant’s migration agent advised the Department that the applicant’s husband was undergoing medical treatment and they were seeking clarification from his doctor about that matter prior to undergoing a visa medical examination.

12. On 22 December 2016, the applicant provided a signed statement from her spouse in which he stated the following but not limited to:

    ·That he did not intend to undergo a visa medical examination in relation to his wife’s Australian visa application.

    ·That he had been diagnosed with Grade IV metastatic Renal Cell Carcinoma that has metastasised in his spinal cord and lymph nodes and he is receiving treatment.

    ·That he intended to remain in the USA to continue his treatment and has no intention of applying for a permanent visa to Australia even if his treatment leads to remission from cancer.

13. The applicant’s former migration agent provided a submission that the applicant’s spouse had no intention of migrating to Australia, The migration agent further stated that although he is not applying for a permanent visa with his wife he is required to satisfy the health test prescribed by PIC 4005, unless the Minister is satisfied that it would be unreasonable to require the person to undergo assessment in relation to that criterion.

14. The applicant has provided correspondence from the Division of Medical Oncology, City of Hope Hospital in the USA with the visa application and at the Tribunal hearing (dated 24 December 2018, 11 January 2019 and 21 January 2019). The applicant also provided two statements of support from Northern Sydney Local Health District and Greenwich Village Medical Practice outlining the health of her father and her role as his carer. The applicant’s daughter stated that everyone in their family has supported the applicant during the visa process. The Tribunal accepts the applicant is providing care for her father and her spouse continues to receive treatment for his illness.

15. The applicant told the Tribunal that her spouse continues to receive treatment for his illness, and that his medical treatment is only available in the USA. She further stated that he has no intention of migrating to Australia because he would lose his medical benefits that he has in the USA. The applicant stated that it would be unreasonable for her spouse to undergo a medical assessment because he would automatically fail because of his illness. The applicant also stated that her spouse drove himself to hospital for treatment when queried by the Tribunal.

16. The applicant post the Tribunal hearing provided a copy of her husband’s USA Medicare summary notice indicating his medical benefits. She also states in her written submission that her spouse has extensive family support from his children and siblings in the USA. She further states that she will not seek ministerial intervention if her visa application is unsuccessful because she will be travelling fairly often with her father overseas to visit siblings and family.

17. Clause 836.224 requires non-migrating members of the family unit to meet the health requirement unless the Tribunal is satisfied that it would be ‘unreasonable’ to require the person to undergo medical examinations. The Tribunal sees no impediment to the applicant’s spouse being able to attend a medical assessment as required to meet the health requirement (PIC 4005).

    The ‘unreasonable to require the person to undergo assessment' exception

18. In circumstances where the Tribunal is satisfied the person is a member of the family unit of the visa applicant and is not included in the visa application, then the Tribunal can consider whether it would be unreasonable to require the person to undergo assessment. The power does not exist to be exercised when it is known that a person is unable to satisfy the specified health criteria, even when the applicant has not yet undergone assessment. In this case it is known to the Tribunal based on the medical reports and oral evidence provided by the applicant, the applicant’s spouse is unable to satisfy the health requirement due to his illness and therefore the Tribunal is not satisfied that it would be unreasonable to require the applicant’s spouse to undergo an assessment.

19. The applicant told the Tribunal that she will be leaving for the USA in February to support her husband during treatment. The Tribunal feels great sympathy towards the applicant as she comes to terms with her husband’s illness and treatment and provides continued care and support to her elderly father.

20. Notwithstanding the sensitivities of this case, at the time of making this decision, there is no evidence available to the Tribunal to demonstrate that the applicant has provided the necessary health assessments for her spouse or has any intentions of doing so in the future.

    FINDINGS

21. In considering the circumstances of this case, the Tribunal finds that based on the evidence provided the health of the applicant’s spouse raises significant concerns that he has a medical condition which may affect his ability to meet the requirements of PIC 4005.

22. In the absence of the required permanent health examinations for the applicant’s non-migrating spouse, the Tribunal finds that the applicant has not demonstrated that each member of her family unit satisfies PIC 4005.

23. The Tribunal is not satisfied that it would be unreasonable to require the applicant’s non-migrating spouse to undergo assessment in relation to PIC 4005.

24. Consequently, the applicant does not meet the requirements of cl.836.224(2)(b) and therefore does not satisfy cl.836.224 of Schedule 2 to the Regulations.

    DECISION

25. As cl.836.224 of Schedule 2 to the Regulations is not met by the applicant the Tribunal finds the criteria for the grant of an Other Family (Residence) (Class BU) visa are not met by the applicant.

26. The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

    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.