Trinh (Migration)

[2018] AATA 4407

Trinh (Migration) [2018] AATA 4407 (14 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr A Kuong Trinh

VISA APPLICANTS:  Mrs Thuy Phuong Banh
Mr Dinh Tam Lam
Mr Dinh Luong Lam

CASE NUMBER:  1725503

DIBP REFERENCE(S):  2015071609

COUNTRY OF REFERENCE:                  Vietnam

MEMBER:Hugh Sanderson

DATE:14 September 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicants Partner (Provisional) (Class UF) visas.

Statement made on 14 September 2018 at 1:35pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)– health criteria – adverse Medical Officer of the Commonwealth opinion – high cost to the Australian community – should criteria be waivered – couple does not have significant assets – review applicant has not returned to Vietnam to spend time with applicant – secondary applicants members of the same family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), r 2.25A Schedule 2 cl 309.225 Schedule 4 PIC 4007

CASES
Bui v MIMA (1999) 85 FCR 134
Ramlu v MIMIA [2005] FMCA 1735
Robinson v MIMIA (2005) 148 FCR 182

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 29 September 2017 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 19 June 2015. The delegate refused to grant the visa as the first named visa applicant (now referred to as the visa 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 were not met.

   Background

3. The visa applicant is a citizen of Vietnam and is currently 54 years old. She was previously married and her former husband died in 2007. There are four children of that relationship, Dinh Hao, currently 32 years old; Dinh Hoa currently, 31 years old; Dinh Tam, currently 28 years old; and Dinh Luong, currently 19 years old. The younger two children are the second named visa applicants. The only basis for their application is that they are members of the family unit of the visa applicant who meets the primary criteria.

4. The review applicant is the sponsor of the applicant. He was born in Vietnam and is currently 57 years old. He was previously married and divorced his wife in 2000. There were no children of that relationship.

5. It was claimed that the parties knew each other prior to the review applicant leaving Vietnam in 1989. They lost contact with each other after that time. After the review applicant’s marriage ended in divorce, he re-established contact with the visa applicant. When the review applicant travelled to Vietnam in 2013, they committed to a relationship with each other. They were married in Vietnam on 14 May 2014.

6. Since their marriage, the review applicant has travelled to Vietnam on the following occasions:

   ·From 25 August 2015 to 16 September 2015; and

   ·From 9 August 2016 to 25 August 2016.

7. The visa applicant lodged a Partner visa application on 14 August 2014. That application was refused by the Department on 5 May 2015. The current application was then filed on 19 May 2015. The Department made a decision on 4 February 2016 refusing the application as the delegate was not satisfied the parties were in a genuine relationship. An application for a review of that decision before the Tribunal (differently constituted) was successful and the matter was remitted with a finding that the review applicant met the criteria in cl.309.211 and cl.309.221 of Schedule 2 to the Regulations.

8. The review applicant was required to undergo a medical examination to ensure that she met the health criteria. The report from the Medical Officer of the Commonwealth (MOC), dated 6 January 2017 found that the visa applicant did not meet the health requirement. It was found that the visa applicant was suffering from asymptomatic chronic viral hepatitis B and the likely cost to the Australian community was assessed at $254,100. On that basis, the MOC found that the applicant did not meet the health criteria in PIC 4007(1)(c)(ii)(A).

9. The review applicant made various submissions to the Department as to why the health criteria should be waived. The delegate who considered the application noted the following issues:

   ·The review applicant held dual Australian and Vietnamese citizenship and could, if he wished to, reside with the visa applicant in Vietnam;

   ·The review applicant had only limited income of $35,048 per annum and the visa applicant had no work experience, indicating they would not be able to offset the costs of the medical care required;

   ·The review applicant does not have any extensive family ties in Australia;

   ·The visa applicant has never entered Australia and has no family ties in Australia;

   ·The visa applicant has extensive family support in Vietnam; and

   ·The visa applicant has no skills which are in demand in Australia.

10. Taking these matters into account, the delegate was not satisfied that the granting of the visa would be unlikely to result in undue cost to the Australian community and therefore declined to waive the health criteria. The delegate found that the visa applicant did not meet PIC 4007, and therefore did not meet the criteria in cl.309.225, and refused the application.

    Information to the Tribunal

11. The review applicant asked the Tribunal to allow a further opinion from the MOC be obtained. A further report was obtained from the MOC dated 19 April 2018. This again found that the visa applicant did not meet the health criteria. The likely cost to the Australian community was assessed at $235,200.

12. The review applicant provided further material to the Tribunal including the following:

    ·Further medical information about the visa applicant’s condition;

    ·Statutory declarations from the visa applicant and the review applicant claiming that they would meet all the visa applicant’s medical expenses in Australia personally;

    ·Valuations of the properties claimed to be owned by the visa applicant in Vietnam with a combined value of in excess of AU$3,500,000; and

    ·A letter from the review applicant’s employer confirming that he is employed by them earning $37,000 per annum.

13. The review applicant appeared before the Tribunal on 13 September 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The review applicant was represented in relation to the review by his registered migration agent.

14. At the start of the hearing, the Tribunal explained to the review applicant the process under s.359AA of the Act. It explained that it would be putting to the review applicant information which would be the reason, or a part of the reason, for affirming the decision under review. It would explain why this information was relevant and then invite the review applicant to comment on or respond to the information. If he required more time to comment on or respond to the information he could request an adjournment.

15. The review applicant said that he was currently living in a share home. He had been employed as a joiner for the last 20 years. His current take-home pay was $620 per week and he was paying rent of $100 per week. He said that based on his income he paid tax of about $3,000 per annum. He said that he had very little savings and owned no property in Australia. He has no family in Australia.

16. The review applicant said that he last saw the visa applicant August 2016 when he travelled to Vietnam. He said that he had not travelled to Vietnam again to spend any time with her because he did have any further holidays. The Tribunal noted that as it was more than two years ago, he would have accumulated at least eight weeks holiday over that period. The review applicant claimed that he only got 14 days holiday a year when the factory closed down in December and January. He said that he did not travel to see his wife over that period because he took on small jobs for friends over that time because he needed the money.

17. The review applicant claimed that he continued to send about $300-$400 each month to the visa applicant. He said that he did this because he felt it was his responsibility to do so. The Tribunal noted that if the visa applicant was claiming that she had assets in excess of a couple of million dollars and a substantial income, then it seemed implausible that the review applicant, who had no assets and only minimal income, would be sending money to support her. The review applicant said that he has no one in Australia to support and he doesn’t need too much money so he sent her money because he loves her.

18. The review applicant claimed that he knew about all the assets of the visa applicant soon after they were married. He claimed to have provided that information to his agent. The Tribunal referred to the process under s.359AA of the Act referred to above. The Tribunal referred to the review applicant’s agent’s letter dated 1 September 2016 provided to the Tribunal at the earlier Tribunal hearing. This stated that “The couple does not have significant assets in Vietnam, nor Australia”. This was relevant as it called into question whether the visa applicant did hold the assets that she claimed to own in Vietnam and also called into question the credibility of the information provided by the parties in support of the application.

19. The review applicant said that the visa applicant plans to sell all her assets to meet her medical expenses. He said that the assets were not worth anything before, but they are now valuable. The Tribunal put to the applicant that it was not plausible, if the visa applicant did own these assets, that they would had been worth nothing in 2016 but are now worth in excess of $3,000,000. Further, if she did own those assets then it would not have been said that the couple had no significant assets in Vietnam. The review applicant simply said that it is the visa applicant’s intention to sell those properties to meet her medical expenses.

20. The review applicant said that his plans were that he would move out of the home he is now living in to find rented accommodation and then he and the visa applicant would buy a house together. He said that the visa applicant would try to find work in retail, possibly working in a Chinese shop as she does not speak English, or sewing. He said that he would like to start his own business, renting a small factory so that he could regenerate old sofas. He said that the visa applicant would bring the money so that he could open his business.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. The issue in this review is whether the visa 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 visa 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 has been diagnosed as suffering from asymptomatic chronic viral hepatitis B.

    Is the applicant free from the relevant diseases or conditions (PIC 4007(1)(a), (b), (c))?

23. PIC 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.

24. PIC 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, where 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.

25. 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.

26. As the applicant in this case has applied for a permanent visa, the exemption provision in PIC 4007(1B) does not apply.

27. In determining whether a person meets PIC 4007(1)(a), (b) or (c), r.2.25A of the Regulations requires the Tribunal to seek the opinion of a 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 a MOC opinion required?

28. On the evidence before the Tribunal, a MOC opinion is required.  As noted 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.

29. The MOC has correctly applied the appropriate test when assessing the visa applicant. She suffers from asymptomatic chronic viral hepatitis B. The likely cost to the Australian community has been assessed at $235,200. On that basis, it was found that a hypothetical person with that disease or condition, at the same severity as the applicant, would result in a significant cost to the Australian community in the areas of health care and/or community services. The MOC found that it would not be likely to prejudice the access to health care or community services.

30. Accordingly, based on the opinion of the MOC, the applicant does not satisfy PIC 4007(1)(c).

    Should the requirements of PIC4007(1)(c) be waived?

31. The requirement in PIC 4007(1)(c), to be free of a disease or condition that would impact on health or community services, may be waived if among other things, the decision maker is satisfied that the granting of the visa would be unlikely to result in either ‘undue cost’ to the Australian community or ‘undue prejudice’ to the access to health care or community services of an Australian citizen or permanent resident: PIC 4007(2).

32. The evaluative judgment of whether the cost to the Australian community or prejudice to others is ‘undue’ may import considerations of compassionate or other circumstances: Bui v MIMA (1999) 85 FCR 134 (‘Bui’) at 47. Over and above the consideration of the likelihood that cost or prejudice will be ‘undue’ there is also the discretionary element of the ministerial waiver. Within that discretion, compassionate circumstances or compelling circumstances may be relevant: Bui at 47. Departmental policy guidance on the exercise of this discretion is contained in the Procedures Advice Manual (‘PAM3’). Broadly speaking, these relate to: family links in Australia and the impact on family members; occupational skills of the applicant or family members; assets or factors that may mitigate the costs or prejudice to access to care or services involved; available support from family or community groups; potential contribution to Australia by the applicant or family members; the immigration history of the applicant; other compelling and compassionate circumstances including location of the applicant and family members; and any other relevant factors.

33. It has been claimed that the visa applicant has significant assets in Vietnam which she will use to offset any medical expenses she may incur while in Australia. The Tribunal has significant concerns as to whether these assets are available to the visa applicant.

34. In earlier proceedings, the applicant’s agent stated in a letter dated 1 September 2016 to the Tribunal that “The couple does not have significant assets in Vietnam, nor in Australia”. The review applicant claimed that he was aware of the assets owned by the visa applicant soon after he was married in 2014 and that he had provided all information to his agent. The Tribunal does not accept that if the visa applicant owned the assets that she now claimed she does that this information would not have been provided to the Department and the Tribunal or that the review applicant’s agent would have claimed that she had no significant assets in Vietnam in 2016.

35. The review applicant claimed that the assets in 2016 were not worth much, but now they are worth $3,500,000. The Tribunal does not accept that if the visa applicant owns these assets they would have appreciated in value to the extent claimed over the two years from when the review applicant’s agent stated the parties had no significant assets in Vietnam to assets now valued at $3,500,000.

36. The valuations provided provide a disclaimer which states that it “only confirms the value of the assets in the case the customer has full legal basis of ownership/use in accordance with the law of Vietnam”. Particulars of the legal titles of the properties have not been provided. Details of when the properties were purchased and any finance obtained or mortgage registered on those properties have not been provided. Even if the valuations provided are accepted, the details of the net value of those properties cannot be ascertained.

37. In the earlier proceedings, the review applicant claimed that he was regularly sending money to support the visa applicant. The review applicant in the current proceedings again confirmed that he was sending from $300 to $400 per month to provide financial support to the visa applicant. This is despite the fact that the review applicant has a gross income of only $37,000 per annum and has no savings or assets in Australia. The Tribunal does not accept that the review applicant would be sending money to the visa applicant in Vietnam if the visa applicant had access to the assets and the income claimed to be generated from those assets.

38. As indicated above, the review applicant has only a limited income. He described himself as receiving the minimum wage. He stated that he pays taxes of only about $3,000 per annum. He has no savings and does not own any property or other assets in Australia. There is nothing to indicate that the applicant’s income could offset any costs or would be such that the likely cost as a result of the visa applicant’s medical condition would be unlikely to result in undue cost to the Australian community.

39. The review applicant claimed that the visa applicant would be able to obtain employment in retail or use her sewing skills. As the visa applicant does not speak English, it was hoped that she may be able to obtain employment in a Chinese shop somewhere. It is unlikely that any employment obtained by the visa applicant would result in any significant income or that that employment would be able to offset the assessed cost to the Australian community of the visa applicant’s condition. The limited income earning capacity of both the visa applicant and the review applicant means that they would make minimal contribution to the Australian taxation system over their working lives and it would be significantly less than the costs assessed by the MOC.

1. The review applicant set out his plans should the visa applicant be able to come to Australia. This included setting up his own business and possibly purchasing a home for the parties and the visa applicant’s children in Australia. This indicates that if the visa applicant does have any assets which she is able to liquidate, they would more likely to be used in this manner rather than offset any costs to the Australian community as a result of the visa applicant’s condition.

2. The most significant aspect of the costs assessed by the MOC is the pharmaceuticals that the visa applicant would be required to continue to take for the rest of her life due to the condition she suffers from. The medication that she would have access to would be subsidised under the Pharmaceutical Benefit Scheme. Regardless of any assets or savings the visa applicant may have access to, she would still be receiving the significantly subsidised medication regardless of any claimed intention to minimise the cost to the Australian community. There is no obligation on the visa applicant or the review applicant to offset these costs, even if the visa applicant did have access to significant assets or savings.

3. Despite the claim that the visa applicant has access to considerable assets which generate an income for her, the review applicant has not returned to Vietnam to spend any time with her since August 2016. The review applicant claimed that this was because he had to work during the 14 days each year his employer closes down because he needed to work to get money. This indicates that the level of dependence the review applicant has on the visa applicant is only limited. If the assets and the income of the visa applicant are as claimed, it indicates the parties relationship is such that they have chosen not to spend any time together over the last two years.

4. There is no information which would indicate the review applicant could not return to Vietnam to live with the visa applicant there if he chose to do so. He does not have any family in Australia and appears to have only limited ties here. The visa applicant has no family in Australia. Her family has a business in Vietnam which she claims is profitable. The visa applicant has been receiving medical treatment in Vietnam and there is nothing to indicate that this treatment would not continue and address the condition she suffers from.

5. The Tribunal has considered all the circumstances of the review applicant and the visa applicant both individually and cumulatively when considering whether the granting of the visa would be unlikely to result in undue cost to the Australian community. The Tribunal, when considering this, has taken into account the claims of the parties’ relationship and the compassionate circumstances of the fact that the visa applicant is currently living in Vietnam with her children and the review applicant has been living in Australia for many years. When taking into account all these factors, the Tribunal is not satisfied that the grant of the visa would be unlikely to result in undue cost to the Australian community. The Tribunal has significant concerns as to whether the visa applicant has access to the asset she claims; however, even if she does, the visa applicant would still be able to access the pharmaceuticals and other services identified by the MOC without any further contribution by her. Neither the visa applicant nor the review applicant have any significant income earning capacity and would make only limited contribution to the Australian taxation system during their working lives. Although the parties claim to have been married since 2014, the review applicant has spent only limited time with the visa applicant and has not returned to Vietnam over the last two years. If the visa applicant did come to Australia with her family, it is likely that any assets she did own would be utilised in establishing her family in Australia rather than offsetting the cost to the Australian community that would be incurred as a result of her condition.

6. For these reasons, the Tribunal is not satisfied that the granting of the visa would be unlikely to result in undue cost or undue prejudice within the terms of PIC4007(2)(b). Therefore PIC 4007(1)(c) cannot be waived.

7. As the visa applicant has not satisfied the requirements of PIC 4007, the decision under review must be affirmed.

8. The only basis of the applications of the second named visa applicants is that they are members of the family unit of a person who meets the primary criteria. As the first named visa applicant does not meet the criteria for the grant of the visa, the decision to refuse their applications must also be affirmed.

   DECISION

9. The Tribunal affirms the decision not to grant the visa applicants Partner (Provisional) (Class UF) visas.

   Hugh Sanderson

   
   

   Member

   ATTACHMENT

   Migration Regulations 1994

   Schedule 4

   4007(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)    subject to subclause (2) — 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 (1A); 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.

   (1A)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.

   (1B)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 (1A)(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.

   (2)The Minister may waive the requirements of paragraph (1)(c) if.

   (a)    the applicant satisfies all other criteria for the grant of the visa applied for; and

   (b)    the Minister is satisfied that the granting of the visa would be unlikely to result in:

   (i)undue cost to the Australian community; or

   (ii)undue prejudice to the access to health care or community services of an Australian citizen or permanent resident.