Jayawardana (Migration)

[2018] AATA 1018

Jayawardana (Migration) [2018] AATA 1018 (19 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Kaluarachchige Chandrawathie Jayawardana
Mr Gunawardana Hettiarachchige

CASE NUMBER:  1619934

DIBP REFERENCE(S):  CLF2013/63811

MEMBER:Helena Claringbold

DATE:19 March 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Aged Parent (Residence) (Class BP) visas.

Statement made on 19 March 2018 at 9:04am

CATCHWORDS
Migration – Aged Parent (Residence) (Class BP) visa – Subclass 804 (Aged Parent) – Membership of the same family unit – Visa applicants have separated – Second named applicant – Withdrawal form received by the Tribunal – No identification that the secondary applicant understands the ramifications of the withdrawal – Secondary applicant failed to meet Public Interest Criterion 4005 – Parties claimed separation to enable at least one of the visa applicants to obtain the visa

LEGISLATION
Migration Regulations 1994, r 2.25A Schedule 2 cls 804.225, 804.226 Schedule 4 Criterion 4005

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 21 March 2013, Mrs Kaluarachchige Chandrawathie Jayawardana, the primary visa applicant and primary review applicant applied for Aged Parent (Residence) (Class BP) visas.  The application was made on the basis of her aged parent relationship with Mr Chaminda Deepal Hettiarachchige, the sponsor.  Mr Gunawardana Hettiarachchige, who is Mrs Jayawardana’s spouse, is the secondary visa applicant.

2. On 9 November 2016, a delegate of the Minister for Immigration and Border Protection refused to grant the visas. The refusal was based on the secondary visa not satisfying Public Interest Criterion (‘PIC’) 4005 of Schedule 4 to the Regulations. Therefore the secondary visa applicant did not meet cl.804.225 of Schedule 2 to the Migration Regulations 1994 (the Regulations). As a result the criterion relating to members of the family unit applied and Mrs Jayawardana and she did not satisfy cl.804.226(1) of Schedule 2 to the Regulations. This is a review of the delegate’s decision.

3. On 8 March 2018, the review applicant appeared before the Tribunal to give evidence and present arguments. She provided the Tribunal with a copy of the delegate’s decision record. The Tribunal also received oral evidence from Mr Chaminda Deepal Hettiarachchige and Mr Gunawardana Hettiarachchige. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal has taken into consideration all the evidence in the Department’s case file and the Tribunal case file and the evidence provided at the Tribunal hearing.

   ISSUE

6. The issue in the present case is whether the visa applicants satisfy PIC 4005 of Schedule 4 to the Regulations.

   Has the secondary visa applicant withdrawn from the application for review and is the secondary visa applicant a member of the family unit of the primary review applicant?

7. The secondary visa applicant did not satisfy the PIC 4005. On 23 October 2017, the Tribunal wrote to the primary review applicant and provided her with an opportunity to seek a further Medical Officer of the Commonwealth (MOC) opinion. On 15 November 2017, the primary review applicant provided advice to the Tribunal that she had separated from the secondary visa applicant. She stated that the secondary visa applicant returned to Sri Lanka and does not ‘intend to return to Australia in the foreseeable future’. She requested that the secondary visa applicant be removed from the review.

8. The secondary visa applicant made a valid application to the Tribunal for review of his visa refusal.  He has an independent right to a review of that decision. The Tribunal does not have jurisdiction to withdraw the secondary visa applicant from the review process, without his explicit instruction. The Tribunal requested that the secondary visa applicant complete and sign and have certified by a relevant person a withdrawal of application form and provide this to the Tribunal. On 16 January 2018, the primary review applicant’s migration agent provided the Tribunal with a withdrawal of application form, signed by the primary review applicant. On 16 January 2018, the Tribunal advised the primary review applicant that it is necessary that the secondary visa applicant complete and sign the relevant form.  It also stated that the relevant form be certified and provided along with identification of the secondary visa applicant. On 31 January 2018, the Tribunal received a withdrawal of application form with the secondary visa applicant’s details and a thumb print claiming to be the thumb print of the secondary visa applicant. No identification of the secondary visa applicant was provided with the form. The form is stamped ‘attorney at law’ and has stated on it ‘I certify that this is the thumb print of Hetti Arachchige Gunawardana’. There is no identification provided for the attorney at law. The Tribunal is not satisfied that the secondary visa applicant has withdrawn from the application for review. The applicant stated that a medical letter could be provided and this would support that the sponsor has weaknesses and about his difficulty with speech and difficulty in signing documents. Even if the Tribunal accepted this evidence, there is no evidence before the Tribunal that the secondary visa applicant can be understood or that he understands the ramifications of the withdrawal of his application for review. Although the secondary visa applicant lives with his son, there is no evidence that either the primary review applicant or the secondary visa applicant’s son have legal authority to make decisions on behalf of the secondary visa applicant.  Even if the Tribunal accepted that the secondary visa applicant had withdrawn from the application for review, it does not accept that the parties’ relationship has ceased and this is discussed below.

   Are the parties in a spousal relationship?

9. The Tribunal is now consider whether the visa applicants are spouses and whether the secondary visa applicant is a member of the family unit of the primary review applicant.

10. At the time of application in March 2013, the visa applicants claimed to be in a genuine spousal relationship. The issue is whether the relationship between them has ceased. The Tribunal is not satisfied that the applicants’ spousal relationship has ceased.  The Tribunal is of the view that the claimed separation is facilitated for the purpose of enabling the primary review applicant to satisfy the criterion for the grant of the visa.

11. The primary review applicant told the Tribunal that she and the econdary visa applicant have been married for over 40 years and information provided, as part of the visa application, informs that they have been married for 47 years.  She stated that the secondary visa applicant returned to Sri Lanka and told her he didn’t want to live with her anymore.

12. Conversely, the evidence before the Tribunal is that the parties have been married for approximately 47 years.  They have four children together, three living in Australia and one living in Sri Lanka. Over these 47 years, they have lived at the same addresses in Sri Lanka and in Australia and have travelled together. There is no evidence of the primary review applicant and the secondary visa applicant’s relationship ceasing until after the visa refusal on 9 November 2016.  The advice of the parties’ separation was provided to the Tribunal on 15 November 2017, prior to the Tribunal hearing.

13. The primary review applicant told the Tribunal that over the years the parties have disagreed.  She said that the secondary visa applicant told her that he didn’t want to live with her anymore and that he was returning to Sri Lanka.  She said that during their marriage they lived in the same house but they lived separately.  She stated that the parties have always had separate bank accounts and that she paid household expenses in Sri Lanka.  The Tribunal discussed with the primary review applicant the circumstances at the time of application in March 2013 and at the time of application for review of the refusal decision in November 2016, where the parties claimed to be in a genuine spousal relationship. The primary review applicant responded and said that they were in a spousal relationship until the secondary visa applicant left Australia in August 2017.  This statement was supported by the applicant’s migration agent.

14. The primary review applicant told the Tribunal that the parties jointly owned a house in Sri Lanka.  She stated that the house is beside her son’s house where the secondary visa applicant is living. She said that if she returned to Sri Lanka she would live in the separate house owned by the parties. If necessary she would live in the same house as the secondary visa applicant but would have her own bedroom. The review applicant told the Tribunal that divorce proceedings had not been initiated because the secondary visa applicant had already returned to Sri Lanka and it seemed unnecessary. The primary review applicant’s migration agent stated that as the separation was recent divorcee proceedings had not been actioned.

15. The review applicant said that as well as the parties owning their house in Sri Lanka, she owned some land and she received a pension. She stated that the secondary visa applicant also received a pension and other income from coconuts growing on the parties’ property.  No evidence has been presented to show that the couple have separated the joint ownership of their home in Sri Lanka or discussed or commenced any action for divorce. In fact, in the primary review applicant’s opinion divorce between the parties seemed unnecessary.

16. The Tribunal discussed with the review applicant the length of the parties’ marriage, their living together in Sri Lanka and in Australia and their travelling together. She agreed that these circumstances are correct, but said that everything changed when the secondary visa applicant returned to Sri Lanka in 2017.

17. The review applicant’s evidence about the parties not having a good relationship for some time and of them living separately under the same roof, contradicts the parties’ evidence in the visa application.  In that application the parties claimed to be in a genuine spousal relationship and there was no suggestion, at all, of there being any problems in the parties’ relationship or that the parties were living separately.  Neither was there any evidence of the parties living separately at the time of review application. The inconsistencies in this evidence indicates to the Tribunal that the primary review applicant is not being truthful in her evidence about the parties’ relationship status and is fashioning her evidence to meet the criteria for the grant of the visa.

18. Deepal told the Tribunal that his parents lived separately.  He stated that his father is happy living in Sri Lanka and his mother is happy living in Australia.  He said that his mother provides support to the family and the family supports her.  This statement is in agreement with the primary review applicant’s evidence that she provides support to her sons and their families in Australia and that she takes care of her grandchildren. The claims that the parties lived separately, again is inconsistent with the evidence the parties provided in their visa application. Throughout that application there was no suggestion that the parties lived separately. The claims of separation were not made until after the visa refusal and prior to the Tribunal hearing. Given the timing of these events, the Tribunal has formed the view that the parties claimed separation, has been fabricated in response to the adverse health findings and to enable at least one of the visa applicants to obtain the visa.

19. The Tribunal was told that when the secondary visa applicant was 65 years old he had an accident. The primary review applicant indicated that the accident was due to alcohol and resulted in him being was paralysed down one side, having a brain injury, progressive mobility loss and speech impairment.  The Tribunal was told that the secondary visa applicant has good mental capacity. The Tribunal telephoned the secondary visa applicant. After many attempts to take evidence from the secondary visa applicant, it became apparent that the secondary visa applicant is unable to respond to questions. When asked a question, the secondary visa applicant made a single audible sound and its meaning could not be understood and he was unable to engage in a verbal exchange. While the Tribunal tried to obtain oral evidence from the secondary visa applicant the primary review applicant and the applicant’s migration agent agreed that it was not possible.  The Tribunal, with the agreement of the primary review applicant took evidence from the parties’ son, Mr Gunawardana Hettiarachchige, whom the secondary visa applicant lives with.  He said that the secondary visa applicant could only make one noise or another. He told the Tribunal that the secondary visa applicant lived with him for eight to nine months and prior to this he lived with his brothers in Australia. He said the secondary visa applicant wanted to return to Sri Lanka and that his mother does not intend to return to Sri Lanka. On the other hand, the primary review applicant told the Tribunal that she would return to Sri Lanka to visit her husband and would stay with her husband and son but she didn’t want to live in Sri Lanka.   

20. Ultimately, the Tribunal has formed the view that the primary review applicant has not been truthful in her description of the parties’ relationship. Even after considering the primary review applicant’s claims that the parties disagreed and their relationship changed after the secondary visa applicant returned to Sri Lanka, the Tribunal is not satisfied that the claimed separation of the parties’ genuinely reflects the visa applicants’ relationship status. The Tribunal is of the view that the parties’ claimed separation is fabricated merely for the purpose of the visa application and to enable at least one of the parents to obtain the visa. The Tribunal finds it significant that when making the visa application in 2013, the parties claimed to be in a genuine spousal relationship. In 2016, when they applied for a review of the delegate’s decision both applicant’s applied for review of the decision. After providing this evidence about the parties’ relationship, the primary review applicant now claims that after approximately 47 years in a spousal relationship, the parties have been living in a separated relationship for many years. This evidence when considered against the evidence provided at the time of visa application and review application is convenient and more beneficial for the requirements of the visa. In the parties’ 47 spousal relationship, they made no effort to separate or live separately, on the primary review applicant’s own evidence, they travelled on numerous occasions together to Australia, they lived together in Australia and Sri Lanka in the past and intended to continue living together in Australia, upon the grant of the visas. All of this indicates to the Tribunal that the current information about the parties’ separation is untruthful, especially when considered against the earlier information about the parties’ genuine spousal relationship.

21. After considering the information individually and as a whole, the Tribunal is not satisfied that the visa applicants’ spousal relationship has ceased.  There is no evidence before the Tribunal that the visa applicants have made any suggestion or discussed or acted in any way on them divorcing or separating their assets. The evidence on this aspect of the parties’ relationship is that the primary review applicant didn’t think divorce was necessary because the secondary visa applicant had returned to Sri Lanka. The Tribunal is satisfied that the claimed separation is fabricated to permit the primary visa applicant to satisfy the criteria for the grant of the visa. The Tribunal finds that the primary review applicant and the secondary visa applicant are in a spousal relationship.  It is satisfied that the secondary visa applicant is a member of the family unit of the primary review applicant and is required to meet the health requirements.

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

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

23. PIC 4005(1)(c) requires the applicants 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).

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

25. In determining whether a person meets PIC 4005(1)(a), (b) or (c), r.2.25A requires the opinion of a Medical Officer of the Commonwealth (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 be correct: r.2.25A(3).

26. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that the visa applicants were requested to undertake medical examinations. The primary review applicant was found to have met the health requirements but the MOC formed the view that her spouse, the secondary visa applicant, did not meet the health requirements. The visa applicants were provided an opportunity to obtain a second MOC and declined.

27. The Tribunal is satisfied that a MOC opinion is required. As stated 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. There is nothing to suggest the MOC opinion is affected by any error and the applicant does not argue that this is so. The Tribunal is satisfied that the MOC opinion is a valid one.

28. Based on the opinion of the MOC, the secondary visa applicant does not satisfy PIC 4005(1)(c)(ii)(A). The Tribunal has formed the view that the secondary visa applicant is a member of the family unit of the primary review applicant. The Tribunal finds that the applicants do not meet cl.804.225 and cl.804.226(1) of Schedule 2 to the Regulations.

1. As the applicants have not satisfied the requirements of PIC 4005, the Tribunal must affirm the decision under review.

   DECISION

2. The Tribunal affirms the decision not to grant the applicants Aged Parent (Residence) (Class BP) visas.

   Helena Claringbold

   
   

   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.