SHI (Migration) - [2019] AATA 3833

SHI (Migration) [2019] AATA 3833 (13 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Haixi SHI
VISA APPLICANTS:  Ms WENQIN SHI
Mr XIANGYAO SHI
CASE NUMBER:  1706999
DIBP REFERENCE(S):  BCC2014/2616457
COUNTRY OF REFERENCE:                  China
MEMBER:Russell Matheson
DATE:13 March 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the visa applicants Partner (Provisional) (Class UF) visas.
Statement made on 13 March 2019 at 8:15am

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of decisions made by a delegate of the Minister for Immigration on 30 March 2017 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).
The visa applicants applied for the visas on 7 October 2014. The delegate refused to grant the visa as the first named visa applicant (now referred to as the applicant) did not satisfy cl.309.225 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the health criteria in Public Interest Criterion (PIC) 4007 of Schedule 4 to the Regulations was not met.
The review applicant (sponsor) appeared before the Tribunal on 3 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and the review applicant’s brother Haisheng SHI. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The review applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
BACKGROUND
The applicant, Wenqin SHI is a 37-year-old female originally from Fujian province, China. The applicant has not declared any previous relationships. She declared that she has travelled to Japan a few times and was deported from Japan in 2005, but she has never been to Australia previously.
The sponsor Mr SHI Haixi is a 37 year old male Australian permanent resident originally from Fujian province and currently residing in Sydney, Australia. The sponsor migrated to Australia under a Subclass 115 Remaining Relative visa in 2010. The sponsor has not declared any previous relationships.
According to the parties’ relationship statements, the parties first met during their middle schooling in Longtian, Fujian Province. After their graduation, the applicant went to Japan and they lost contact. The sponsor moved to Australia in 2010. On 28 January 2013, the sponsor returned to Fuqing and bumped into the applicant at a local bakery a few days after he arrived. They exchanged phone numbers and stayed in contact with each other. The sponsor returned to China on 25 July 2013 and met with the applicant again. The sponsor proposed to the applicant in Xiamen during his two-month visit and she accepted his proposal. The sponsor…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] AATA 3833
Decision Date: 13 March 2019

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, Ms. Wenqin SHI, against a decision to affirm the refusal of her Partner (Provisional) (Class UF) visa, Subclass 309. The dispute centred on whether Ms. SHI met the health criteria stipulated by Public Interest Criterion (PIC) 4007, specifically concerning the potential cost to the Australian community of providing her with health or community services. The case was heard by Russell Matheson.

The primary legal issue before the court was whether the applicant satisfied PIC 4007, which requires an applicant to be free from certain diseases or conditions that could pose a threat to public health or result in significant costs to the Australian community through the provision of health or community services. The applicant had failed to satisfy PIC 4007(1)(c)(ii)(A), which relates to the likelihood of requiring health care or community services that would result in a significant cost to the Australian community.

The court considered the provisions of PIC 4007, noting that it requires an applicant to be free from conditions that would likely necessitate health care or community services, the provision of which would either result in significant cost to the Australian community or prejudice access for Australian citizens or permanent residents. While certain temporary visas may exclude specific services from this consideration, the visa subclass in question did not benefit from such exclusions. The court ultimately concluded that the decision under review should be affirmed, finding that the applicant did not meet the required health criteria.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

According to the parties’ relationship statements, the parties first met during their middle schooling in Longtian, Fujian Province. After their graduation, the applicant went to Japan and they lost contact. The sponsor moved to Australia in 2010. On 28 January 2013, the sponsor returned to Fuqing and bumped into the applicant at a local bakery a few days after he arrived. They exchanged phone numbers and stayed in contact with each other. The sponsor returned to China on 25 July 2013 and met with the applicant again. The sponsor proposed to the applicant in Xiamen during his two-month visit and she accepted his proposal. The sponsor returned to China on 23 January 2014 and the parties registered their marriage on 29 January 2014. A wedding banquet was held on 18 February 2014 at Xinyuan Restaurant where the parties celebrated their marriage with their families and friends. The applicant gave birth to the parties’ son SHI Xiangyao in China on 29 September 2016.CONSIDERATION OF CLAIMS AND EVIDENCE The Tribunal has taken into consideration all the evidence in the Department of Immigration and Border Protection’s case files and the Tribunal’s case file and the evidence at the Tribunal hearing.ISSUE The issue in this review is whether the applicant meets PIC 4007 as required by the criteria for the grant of the visa. PIC 4007, as it applies to this case, is extracted in the attachment to this decision. It 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. This last requirement may be waived in certain circumstances. The applicant in this case failed to satisfy PIC 4007(1)(c)(ii)(A).Is the applicant free from the relevant diseases or conditions (PIC 4007(1)(a), (b), (c))? Clauses 4007(1)(a) and (b) require the applicant to be free from tuberculosis and 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. Clause 4007(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 services are excluded from this consideration: PIC 4007(1B). The requirement may also be waived in certain circumstances. In this case the temporary visa the applicant is seeking is specified in Legislative Instrument IMMI 12/025. As such health care and community services listed in the instrument IMMI 11/073 are not excluded from consideration.

Decision

Reasons for decision

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.BACKGROUND The applicant, Wenqin SHI is a 37-year-old female originally from Fujian province, China. The applicant has not declared any previous relationships. She declared that she has travelled to Japan a few times and was deported from Japan in 2005, but she has never been to Australia previously. The sponsor Mr SHI Haixi is a 37 year old male Australian permanent resident originally from Fujian province and currently residing in Sydney, Australia. The sponsor migrated to Australia under a Subclass 115 Remaining Relative visa in 2010. The sponsor has not declared any previous relationships. According to the parties’ relationship statements, the parties first met during their middle schooling in Longtian, Fujian Province. After their graduation, the applicant went to Japan and they lost contact. The sponsor moved to Australia in 2010. On 28 January 2013, the sponsor returned to Fuqing and bumped into the applicant at a local bakery a few days after he arrived. They exchanged phone numbers and stayed in contact with each other. The sponsor returned to China on 25 July 2013 and met with the applicant again. The sponsor proposed to the applicant in Xiamen during his two-month visit and she accepted his proposal. The sponsor returned to China on 23 January 2014 and the parties registered their marriage on 29 January 2014. A wedding banquet was held on 18 February 2014 at Xinyuan Restaurant where the parties celebrated their marriage with their families and friends. The applicant gave birth to the parties’ son SHI Xiangyao in China on 29 September 2016.CONSIDERATION OF CLAIMS AND EVIDENCE The Tribunal has taken into consideration all the evidence in the Department of Immigration and Border Protection’s case files and the Tribunal’s case file and the evidence at the Tribunal hearing.ISSUE The issue in this review is whether the applicant meets PIC 4007 as required by the criteria for the grant of the visa. PIC 4007, as it applies to this case, is extracted in the attachment to this decision. It 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. This last requirement may be waived in certain circumstances. The applicant in this case failed to satisfy PIC 4007(1)(c)(ii)(A).Is the applicant free from the relevant diseases or conditions (PIC 4007(1)(a), (b), (c))? Clauses 4007(1)(a) and (b) require the applicant to be free from tuberculosis and 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. Clause 4007(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.

Ratio Decidendi

Legal Principle Established

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