Vong (Migration) - [2024] AATA 765

Vong (Migration) [2024] AATA 765 (2 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Hue Nghia Vong
REPRESENTATIVE:  Mr Quan S Do (MARN: 1577384)
CASE NUMBER:  1904050
HOME AFFAIRS REFERENCE(S):          BCC2016/3506275
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Tegen Downes
DATE:2 April 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 (Spouse) visa:
·PIC 4007(2)(b) for the purposes of cl 820.223 of Schedule 2 to the Regulations.

Statement made on 02 April 2024 at 12:56pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – health criteria – undue cost to the Australian community – compassionate or compelling circumstances – lengthy and genuine de facto relationship – substantial income and assets to mitigate potential health costs – sponsor’s health conditions – applicant’s excellent prognosis – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 820.223; Schedule 4, Public Interest Criterion 4007; r 2.25
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 February 2019 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under section 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 21 October 2016. The delegate refused to grant the visa as the applicant did not satisfy cl 820.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4007 of Schedule 4 to the Regulations was not met.
The applicant was represented in relation to the review. The representative filed written submissions dated 7 November 2023.
The applicant appeared before the Tribunal by Microsoft Teams on 21 March 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was given the opportunity to, and did file, additional evidence following the hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
ISSUE AND LAW
The issue in this review application is whether the applicant meets PIC 4007.
PIC 4007, as it applies to this case, is extracted in the attachment to this decision. It requires the applicant to, in certain circumstances, undergo a medical assessment and be free of certain diseases or conditions that may impact on the community. This last requirement may be waived in certain circumstances.
Relevantly, clause 4007(1)(c) requires the applicant to be free from a disease or condition in relation to which:
a.the applicant would be likely to require either health care or…

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.

Continue reading Vong (Migration)

Details

AGLC: Vong (Migration) [2024] AATA 765
Case: [2024] AATA 765
Decision Date: 2 April 2024

CaseChat Overview and Summary

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820 (Spouse), made by a 35-year-old man from Vietnam. The applicant sought to have the decision under review remitted to the Minister for reconsideration. The applicant and his Australian citizen sponsor claimed to have been in a genuine and continuing de facto relationship for approximately seven years.

The primary legal issue before the court was whether the applicant met the health criteria for the visa, specifically concerning the potential for undue cost to the Australian community or prejudice to the access of Australian citizens or permanent residents to health care or community services. This involved considering whether compassionate or compelling circumstances existed to waive these requirements, as outlined in the Migration Regulations 1994.

The court considered the department's procedural instructions, which indicated that health waiver cases should be assessed on their merits, taking into account factors such as the capacity to mitigate potential costs and the strength of compelling or compassionate circumstances. The court noted that the applicant had an excellent prognosis, while the sponsor had health conditions. The court found that the applicant met certain criteria for the visa, specifically PIC 4007(2)(b) for the purposes of cl 820.223 of Schedule 2 to the Regulations.

Consequently, the Tribunal remitted the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the specified criteria.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The department’s procedural instruction for PIC 4005-4007 (VM-1027 dated 10 November 2023) (which is informative but not binding on the Tribunal) provides that each health waiver case must be considered on its merits, with all relevant factors taken into account, including the capacity to mitigate the potential costs or prejudice to access identified, and the strength of any compelling and/or compassionate circumstances. It also provides that criteria that may be considered to be compassionate and compelling include that: ·an Australian citizen sponsor has been diagnosed with a health condition and would be unable to access appropriate treatment if forced to relocate;·there is no permanent migration pathway to the applicant’s home country (or another country that the couple have the legal right to reside in) available to the sponsor (for example, because same-sex migration to that country is not available);·the sponsor would be seriously adversely affected financially, such that they would be unable to subsist (maintain or support themselves at a minimal level) in the applicant’s home country due to a lack of language skills, family support and/or employment opportunities;·there is evidence of an adverse impact on Australian citizen or permanent resident minor children if a decision not to waive is made;·the sponsor has significant family links to Australia, and has demonstrated caring or financial obligations towards them;·Australia would miss out on a significant benefit that the applicant/sponsor could contribute to Australia’s business, economic, cultural or other development (for example, a specialised skill/business that is highly sought after in Australia) or are providing a valuable community service (for instance through their employment and/or volunteering activities);·the sponsor/family is already settled in a remote, rural or regional area, and it is assessed that a decision to waive would bring economic or social benefit to that area;·the sponsor/applicant and/or other working family members in a non-Skilled visa application have occupational skills in high demand (refer to the Medium and Long-term Strategic Skills List (MLTSSL) of the Skilled Occupation List);·the applicant and/or other working family members have occupational skills that are found on the National Skills Commission’s latest Skills Priority List (found at not on the MLTSSL or the National Skills Commission’s Skills Priority List, the applicant/sponsor has a unique skillset that is vital to their employer’s business, and/or there is evidence that the employer would suffer detriment if a health waiver was not exercised; or·there are any other compelling or compassionate factors including the location and circumstances of the applicant and/or sponsor’s family members.CONSIDERATION OF CLAIMS AND EVIDENCEBackground The applicant is a 35-year-old man from Vietnam. He has applied for a partner visa based on his relationship with an Australian citizen, his sponsor. The couple claim to have been in a genuine and continuing de facto relationship for approximately seven years.

Decision

Reasons for decision

Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for the visa.DECISION The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 (Spouse) visa:·PIC 4007(2)(b) for the purposes of cl 820.223 of Schedule 2 to the Regulations.Tegen DownesMemberATTACHMENTMigration Regulations 1994Schedule 44007(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.

Ratio Decidendi

Legal Principle Established

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