NGUYEN (Migration)

[2020] AATA 4376

NGUYEN (Migration) [2020] AATA 4376 (2 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs THI NGA NGUYEN
Mr HUU TUNG TRAN
Master HUU BACH TRAN
Ms TUNG LINH TRAN

CASE NUMBER:  1824576

DIBP REFERENCE(S):  CLF2017/20464

MEMBER:Kira Raif

DATE:2 September 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 836 (Carer) visa:

·PIC 4005(1)(c) for the purposes of cl.836.224 of Schedule 2 to the Regulations.

The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 02 September 2020 at 4:46pm

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – health criteria – second applicant’s disease or condition likely to require care or services and result in significant cost to Australian community – assessment by medical officer of commonwealth – divorce and second applicant’s return to home country – authenticity of divorce – no jurisdiction for second applicant – other members of family unit meet health requirement – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 2.25A, Schedule 2, cl 836.224, Schedule 4, criterion 4005(1)(c)

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 21 August 2018 to refuse to grant the applicants Other Family (Residence) (Class BU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 7 March 2017. The delegate refused to grant the visa on the basis that the second named 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 was not met. The applicants seek review of the delegate’s decision.

3. The applicants informed the Tribunal that the second named applicant has returned to Vietnam and des not wish to proceed with the application. The Tribunal has no jurisdiction in respect of this applicant.

4. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it.

   Relevant law

5. The issue in this review is whether the visa applicant meets Public Interest Criterion (PIC) 4005 as required by the criteria for the grant of the visa. Public Interest Criterion 4005, 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.

6. Public interest criterion 4005(1)(c) requires the applicant 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).

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

8. In determining whether a person meets PIC 4005(1)(a), (b) or (c) r.2.25A requires the Tribunal to seek 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).

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

9. The applicants provided to the Tribunal a copy of the primary decision record which contains the following information. In February 2018 the MOC assessed the applicant’s spouse, the second named applicant, as not meeting the Public Interest Criteria 4005. The delegate wrote to the applicants seeking their comments on that information. In response, in April 2018 the applicants provided additional evidence which was forwarded to the MOC. On 20 August 2018 the MOC again formed the view that Mr Tran did not meet the health requirements. As a result, the delegate found that the applicant did not meet cl. 836.224.

10. In August 2018 the Tribunal wrote to the applicants offering the second named applicant the opportunity to undertake a further review by RMOC. In response, in September 2018 the applicants informed the Tribunal that their relationship has been strained since arrival in Australia, which started before their arrival and they made a decision to separate, although they still live in the same household. The parties state that in 2016 while living in Vietnam, they registered their intention to divorce but for the sake of the children, they accepted mediation. Their daily conflict continued since they lodged their Carer visa application and since their arrival in Australia, the communication between them has broken down. There is no prospect of reconciliation and they made the decision to divorce. They intend to return to Vietnam to speed up the divorce process. The applicants subsequently provided to the Tribunal a copy of the divorce order from Vietnam dated 18 January 2019.

11. The Tribunal has considerable concerns about the authenticity of the applicant’s divorce and the couple’s relationship. It is of significant concern that the parties made the decision to divorce only after their application was refused and having realised that the application cannot succeed as long as they remain in a marital relationship. They claim the relationship was problematic for a number of years (for which no evidence has been presented), yet they made the decision to travel to Australia together, make the application together and for the second named applicant to go through two MOC assessments. It was not until the refusal of their application that they decided to proceed with what they now claim they have considered doing for some time. At no time did they inform the Department throughout the processing of their application that their relationship was not ongoing. Both were content to rely on the existence of a spousal relationship to obtain the visas and, having discovered that this would not be possible, the couple claim their circumstances changed. The Tribunal is concerned that the applicant and her partner have not been truthful in their claims.

12. Nevertheless, there is evidence before the Tribunal that the couple have formally divorced. They are no longer in a registered marriage. The spouse has left Australia in 2018 and there is no evidence that since that time the applicant and spouse have a joint household or that they socialise together or share their resources or represent themselves to others as being in a relationship. Despite its concerns, the Tribunal does not consider that Mr Tran continues to the spouse of the applicant or that he is a member of her family unit.

13. The Tribunal notes that should further information come to light in the future, for example, should Mr Tran seek a visa to travel to Australia as the spouse of the applicant, it may give rise to the operation of s. 109 of the Act in relation to the applicant.

14. The Tribunal has formed the view that Mr Tran is not a spouse of the applicant and he is not a member of her family unit. There is no suggestion that the other members of her family unit do not meet the health requirements. The Tribunal finds that PIC 4005 is met for the purpose of cl. 836.224.

    Conclusion

15. Given the findings above, the appropriate course is for the Tribunal to remit the matter to the Minister for reconsideration of the remaining criteria for the visa.

    DECISION

16. The Tribunal remits the application for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 836 (Carer) visa:

    ·PIC 4005(1)(c) for the purposes of cl.836.224 of Schedule 2 to the Regulations.

17. The Tribunal has no jurisdiction with respect to the second named applicant.

    Kira Raif
    Senior Member