1619022 (Migration)

[2018] AATA 3634

1619022 (Migration) [2018] AATA 3634 (25 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1619022

COUNTRY OF REFERENCE:                  Burma (Myanmar)

MEMBER:Kira Raif

DATE:25 July 2018

PLACE OF DECISION:  Sydney

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 25 July 2018 at 12:33pm

CATCHWORDS

Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – Diseases or medical conditions that may impact on the Australian community – Commonwealth Medical Officer opinion – Whether there are compelling reasons to waive public interest criterion – Applicant’s condition likely to require lifelong medical treatment – Sponsor’s medical conditions – Limited care available to children – Separation of children – Relocation issues – Occupational skills in limited demand – Intention to work – Sponsor’s family links – Community and family support – Decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 820.223, 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

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 31 October 2016 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant is a national of Myanmar, born in [year]. She applied for the visa on 27 June 2013. The delegate refused to grant the visa as the applicant did not satisfy cl.820.223 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 applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 25 June and 24 July 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Burmese and English languages. The applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. The issue in this review is whether the visa applicant meets Public Interest Criterion (PIC) 4007 as required by the criteria for the grant of the visa. Public Interest Criterion 4007, 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. This last requirement may be waived in certain circumstances.

5. 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.

6. 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.

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

8. In determining whether a person meets PIC 4007(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 to be correct: r.2.25A(3).

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

9. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant undertook health examinations and in April 2015 the Commonwealth Medical Officer formed an opinion that the applicant did not meet the health requirements. The MOC found that:

   The applicant is a [age] year old person with [a medical condition]. The MOC indicates the form and severity of the applicant’s condition is asymptomatic with the use of [specified] medication. A hypothetical person with a condition of the same form and severity as the applicant would be eligible for lifelong [medical treatment] and regular specialist review. The condition is likely to be permanent. I consider that a hypothetical person with this disease or condition, at the same severity as the applicant, would be likely to require health care or community services during the period specified above. The services would include pharmaceuticals, medical services. Provision of these health care and / or community services would be likely to result in a significant cost to the Australian community in the areas of health care and / or community services.

10. The MOC estimated the costs involved with the applicant’s condition to be $[amount].

11. The Tribunal finds that the MOC opinion is required and was obtained.

12. 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.

13. The applicant suggested to the Tribunal that the MOC opinion was invalid. The Tribunal is not satisfied that this is the case. Based on the opinion of the MOC, the applicant does not satisfy PIC 4007(1)(c).

    Should the requirements of PIC 4007(1)(c) be waived?

14. 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: 4007(2).

15. 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. And 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.

    Negative impact on Australian citizen children (particularly those children of the relationship if a Partner visa has been applied for or those children who are already residing in Australia)

16. The applicant and the sponsor have [a number of] children together, born in [specified years]. The applicant’s evidence is that due to the sponsor’s poor health, he is unable to work and care for the children and he is dependent on the applicant. The applicant told the Tribunal that she looks after everyone at home. Her husband had [surgery] and also had [a medical condition] and he is not well and cannot take care of anyone due to his medical condition. The applicant also states that due to his health condition, the sponsor may not be able to relocate to Myanmar and unless the visa is granted, the children who are Australian citizens may lose their links to the Australian community. The Tribunal accepts that the sponsor has, at best, very limited capacity to care for the children. The Tribunal accepts that there may be significant negative impact on the children if the visa is not granted. If the children remain in Australia, they will have limited care available to them. If they leave Australia with their mother, they are likely to be separated from their father.

    Result in immediate family members living apart

17. If the visa is not granted, the applicant is likely to be unable to remain in Australia. The parties claim that due to his poor health, the sponsor may not be able to move to Myanmar. That would mean that the applicant and the sponsor may be separated if the visa is not granted. Significantly, it may also mean that the children are also likely to be separated from one of their parents.

    Whether, if an Australian citizen sponsor were forced to relocate, it would negatively impact on their health

18. The applicant’s evidence to the Tribunal is that the sponsor had [surgery] in December 2017 and has several other conditions. A number of medical reports relating to the sponsor are before the Tribunal and the Tribunal accepts that the sponsor has several medical conditions. It is stated that due to these medical condition, he is unable to relocate to Myanmar and separation may exacerbate his [medical] condition. The sponsor is also receiving treatment for [another condition] which may not be readily available in Myanmar. The applicant described the ongoing treatment received by the sponsor. The applicant’s evidence to the Tribunal is that there will not be adequate medication and medical assistance in Myanmar while in Australia her husband can obtain the medication and treatment he requires. The applicant said that they would not be able to afford the medication in Myanmar. The applicant’s evidence is that her husband is on a disability support pension so he will not be entitled to it if he lives overseas for a lengthy period.

    Whether the applicant and/or other working family members have occupational skills in high demand (refer to the Skilled Occupation List or the Consolidated Sponsored Occupation List for guidance)

19. The applicant told the Tribunal that she has not worked in Australia because of the births of her [children]. The applicant told the Tribunal that she used to work as [an occupation] in her sister’s shop. She completed [several] years of schooling and does not have any other qualifications. The Tribunal is not satisfied that the applicant has occupational skills in high demand.

20. The applicant told the Tribunal that her husband used to [work] at the airport. He has been unable to work due to his health condition. The Tribunal is not satisfied that this occupation is in high demand in Australia.

    Whether the applicant and/or other family members have substantial assets or an ability to mitigate the costs/prejudice to access involved - for example, due to private care arrangements and/or support being available

21. The applicant told the Tribunal that neither she nor her family in Myanmar have any assets to support her treatment and she told the Tribunal that they have no savings. The applicant does not claim to have any assets that could be used to mitigate the cost of the treatment. They live in public housing. There is no evidence that there is otherwise any capacity to offset the cost of the treatment in any way.

    Whether an Australia citizen sponsor would not be able to migrate to the applicant’s home country (for example, because same-sex migration to that country is not available)

22. The sponsor’s declaration indicates that although he was born in Myanmar, he has no right to reside in Myanmar. While it may be possible, in the Tribunal’s view, for the sponsor to acquire that right, given his relationship with the applicant, the Tribunal accepts the evidence that due to his medical condition, relocation and residence in Myanmar may not be an available option.

    Whether the applicant has significant family links in Australia.

23. The applicant’s spouse and [children] reside in Australia. The applicant has no other family in Australia. The sponsor has extensive family links in Australia, including [several] children, [several] grandchildren and [several] siblings.

    Significant support from family or community groups

24. In his declaration to the Tribunal the sponsor states that he has a close knit family who provide support to him. The applicant’s evidence to the Tribunal is that one of the sponsor’s [children] lives nearby and they have a good relationship but there is very limited contact with the other children as they live in different states. The applicant states that they have a close relationship with the sponsor’s siblings who visit them often. The applicant said that there is social support from the family and the sponsor’s [child] has offered to help. The Tribunal accepts that there is a degree of support from the family. The Tribunal does not consider such support to be significant. The applicant told the Tribunal that community members used to come to their house when her husband was sick. There is little evidence of ongoing support from community groups.

    The potential contribution of the visa applicant and their family to Australia including skills, qualifications, English language ability and employment prospects that may assist the applicant and any dependants once in Australia

25. The applicant is not presently employed. She stays at home and cares for her spouse and [children]. The applicant states in her submission to the Tribunal that once the children are older, she hopes to enter the workforce and while she may work in an area of unskilled labour, she would be able to contribute to the cost of the treatment through the payment of taxes. The Tribunal accepts that while the applicant may choose to work in the future, that indication appears to be merely hypothetical at present. The applicant does not work and cannot work due to her commitments to her husband and children and such commitments may exist for a considerable time in the future. The Tribunal is also mindful that even if the applicant does enter the workforce some time in the future, the contribution she is likely to make through the payment of taxes is unlikely to cover the cost of the treatment in any meaningful way.

    Any other compelling or compassionate factors including the location and circumstances of the applicant and/or sponsor’s family members

26. The applicant’s parents and siblings reside in Myanmar. The sponsor’s immediate family are in Australia. The couple’s [children] are in Australia and are Australian citizens. The Tribunal also acknowledges the sponsor’s and the applicant’s medical conditions.

    The immigration history of the applicant (and sponsor/proposer, if applicable), including, for example, compliance to date with immigration requirements and any undertakings

27. Nothing adverse is known about the applicant’s and sponsor’s immigration history.

    Whether the applicant, sponsor and their immediate family can reside in a third country with no particular hardship (for example, they hold citizenship for another country or they have been residing in another country for a significant period and are eligible to remain there)

28. The sponsor does not have the citizenship of any other country. The applicant’s evidence to the Tribunal is that Myanmar does not allow dual citizenship and neither the sponsor nor the children can acquire Burmese citizenship.

    Family links to Australia

29. The applicant’s spouse and [children] reside in Australia.

    A lack of ties to Australia more generally (for example, if the applicant and sponsor have been absent from Australia for a significant period of time/majority of their life, and there is no reason why they cannot continue to reside in their current location)

30. The sponsor has been living in Australia since childhood, for about 50 years.

31. The Tribunal has considered the entirety of the applicant’s circumstances. The Medical Officer formed the view that the applicant does not meet the health requirements. The Tribunal acknowledges that the costs identified by the MOC are significant. The family have no financial capacity to meet or mitigate the costs. The visa applicant has limited skills and limited capacity to contribute to Australia through employment and the applicant’s evidence is that although she is keen to find a job in the future, she is unlikely to enter the workforce in the next few years because of her [young] children. The couple have some family and community support but the Tribunal does not accept that such support will be of much practical help to the family. Neither the applicant nor the sponsor has skills in demand.

32. Nevertheless, the Tribunal places significant weight on the fact that the couple have [children] together and they are Australian citizens. If the visa is not granted, this will likely lead to the separation of the children from one of their parents. The applicant’s evidence is that her husband cannot care for the children on a full-time basis because of his condition and if the applicant is not granted the visa, the children may be required to leave Australia. The Tribunal accepts that this may cause significant hardship to the family and to the two Australian citizen children. The Tribunal also accepts that due to his poor health, the sponsor cannot relocate to live with the applicant in Myanmar and the visa refusal is likely to lead to separation. The sponsor’s entire family are in Australia and the applicant’s evidence is that relatives and community have offered support to the family.

33. The Tribunal has formed the view that there are strong compassionate or compelling considerations in this case which outweigh other considerations.

34. For these reasons, the Tribunal is satisfied that the granting of the visa would be unlikely to result in undue cost or undue prejudice within the terms of PIC 4007(2)(b). Therefore PIC 4007(1)(c) may be waived subject to the applicant satisfying all other requirements for the visa.

    Conclusion

35. 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

36. 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.

    Kira Raif

    
    

    Senior Member