CRUZ (Migration)

This matter concerned an appeal by a visa applicant against a decision to refuse a Subclass 836 (Carer) visa. The dispute centred on whether the applicant's spouse, a non-migrating member of her family unit, had satisfied the health requirement stipulated by the Migration Regulations 1994 (Cth). The Administrative Appeals Tribunal was required to determine if the applicant met the criteria under clause 836.224(2)(b) of the Regulations, which mandates that all members of the applicant's family unit, whether migrating or not, must satisfy Public Interest Criterion 4005, unless it is unreasonable to require them to undergo an assessment.

The Tribunal considered whether it was unreasonable to require the applicant's spouse to undergo a medical assessment, given his serious medical condition and his stated intention not to migrate to Australia. The applicant's spouse had been diagnosed with metastatic renal cell carcinoma and was undergoing treatment in the United States, with no intention of applying for a visa to Australia. The Tribunal acknowledged that the spouse was a member of the applicant's family unit and was not an applicant for the visa himself.

The Tribunal reasoned that the "one fails-all fails" nature of the health requirement meant that if the spouse failed to meet PIC 4005 and no waiver was available, the applicant's visa would be refused. Despite the spouse's lack of intention to migrate and his ongoing medical treatment, the Tribunal found that it was not unreasonable to require him to undergo the prescribed medical assessment. The Tribunal concluded that the applicant had not provided sufficient evidence to satisfy the criterion that it would be unreasonable to require the spouse to undergo the assessment. Consequently, the Tribunal affirmed the decision under review.