1718024 (Migration)

1718024 (Migration) [2021] AATA 2553 (20 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1718024
COUNTRY OF REFERENCE:                   United States of America
MEMBER:Justin Meyer
DATE:20 May 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for Partner (Temporary) (Class UK) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Spouse) visa:
·PIC 4007(2)(b) for the purposes of cl 820.224 of Schedule 2 to the Regulations.

Statement made on 20 May 2021 at 10:47am
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – health criteria was not met – medical opinion is validly made – possible mitigation of significant costs – requirements of PIC4007(1)(c) be waived – mental health of the sponsor – impact on the Australian community – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.25A, Schedule 2, cls 820.224, 820.323; Schedule 4, Public Interest Criterion 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

This is an application for review of decisions made by a delegate of the Minister for Immigration and Border Protection on 27 July 2017 to refuse to grant the applicants Partner (Temporary) (Class UK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicants applied for the visas on 24 May 2016. The delegate refused to grant the visa as the first named applicant (now referred to as the applicant) did not satisfy cl 820.323 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 applicants appeared before the Tribunal on 15 April 2021 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A], the sponsor.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
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, 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 applicants in this case were found not to meet the criteria for the visa because one the second-named applicant ([name deleted], a dependent of the first-named applicant) did not meet the relevant health requirement, cl. 4007(1)(c).
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.
As the applicant in this case has applied for a permanent visa, the exemption provision in PIC 4007(1B) does not apply.
In determining whether a person meets PIC 4007(1)(a), (b) or (c), reg 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: reg 2.25A(3).
Is a MOC opinion required?
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.
An opinion was obtained by the department from the medical officer of the Commonwealth. He concluded that the second-named applicant is a person with moderate functional impairment. The medical officer of the Commonwealth stated that a hypothetical person with the same condition at the same severity as the applicant would likely require long-term disability support services including but not limited to state services, income support and future residential care support. This condition is likely to be permanent. He considered that a hypothetical person with this disease or condition at the same severity of the applicant would likely be required health care or community services during the period specified.
·These services would likely include
·Commonwealth disability services
·State disability services
·Residential care services
Provision of this healthcare and all community services would likely result in a significant cost to the Australian community in the areas of healthcare and all community services.
As a result, the delegate decided not to waive the health requirement and found that public interest criteria 4007 was not met.
A further MOC opinion was sought as the Tribunal considered that it should be obtained because the earlier opinion was not current.
The further MOC opinion reiterated the earlier opinion’s conclusion.
The medical opinion of 23 April 2020 is in the following terms:
·The applicant has been assessed against Public Interest Criterion (PIC) 4007 for the period of a permanent stay in Australia.
·The applicant does not satisfy sub-subparagraph PIC 4007(1)(c)(ii)(A) in Schedule 4 to the Migration Regulations.
·The applicant is a [age] year-old person with:
Ø Form and severity of the applicant's condition: The applicant has a moderate functional impairment on a background of autism spectrum disorder with an associated intellectual impairment. He has required educational support in the past. He has been noted to be improving with no current behavioural issues, but requires supervision. Provision of services to a hypothetical person with the applicant's condition: A hypothetical person with the same condition of a similar severity would require disability services in the form of NDIS and carer services. This condition is likely to be permanent.
Ø 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.
Ø These services would be likely to include Commonwealth disability services.
Ø 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.
Ø Regard has been given to the information available to date concerning the applicant, including, but not limited to the visa medical assessment and associated investigations (dated 03/04/2017); the form 884 (dated 05/04/2017); the report from treating doctor- Dr [B] (dated 27/01/2020 received after the Tribunal submission); the report from Paediatrician- Dr [C] (dated 13/10/2017); and the report from Psychologist- Dr [D] (dated 27/02/2020).
It was apparent in evidence that the second-named applicant would be in need of government benefits should he settle in Australia permanently. The second-named applicant received a disability pension in the United States, which is his country of origin. The first name applicant and the sponsor indicated that they took care of him.
The first named applicant said that his [age] year-old son, the second-named applicant known as [Mr E], is now suffering from moderate autism. The first named applicant was married to [Mr E]’s mother but the marriage was not amicable and a great deal of trauma occurred in the United States. [Mr E] suffers from asthma and uses various medications. The parties said that [Mr E] could be taken care of entirely by them. The sponsor is particularly experienced in caring for children with special needs. The parties met one another on a forum, as they were both parents of children with special needs.
[Mr E] attended the hearing and I was able to receive an impression of his personality and perspective on the level of care that he would need in the future. I have come to the conclusion that [Mr E] would need considerable care and those would involve social security payments, respite care for him and his parents, medication and various other supports. He would typically need to access NDIS services (The health waiver information from the medical officer listed services expenses at AUD715,200). This is despite the fact that his parents take great care with him and provide a very supportive and loving home. From their straightforward and heartfelt evidence. I conclude that they believe that the best form of care is that which is received from family. The first named applicant has worked with disabled children and knows a good deal about the area, as does his wife. I accept that they would continue to adopt this approach. Nonetheless, the first-named applicant and his wife have modest incomes, some - but not wide-ranging - family and church support, and would struggle if public funding care was not accessed.
The medical opinion is validly made and refers to the specified provisions and conditions. The applicant has not satisfied the Tribunal that it is affected by error.
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?
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).
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. Department policy provides guidance on factors that may be relevant to this, including: the need for, and availability of, a live organ donor; an ability to access private health treatment; close family, social, emotional and community ties to Australia; the impact on any Australian citizen minor children; occupational skills of the applicant or family members; and the potential contribution to Australia by the applicant or family members.
Context
The first named applicant first arrived in Australia from the United States in 2015 as the holder of a visitor visa. He came with [Mr E]. He had earlier met the sponsor in the United States in 2014
The parties married in 2017.
The first named applicant has maintained his lawful visa status at all times and this weighs in his favour.
Relationship with Sponsor
The sponsor is a [age]-year-old citizen of Australia and is the applicant's wife of four years.
The parties’ family is a blended one and includes [Mr E] and the sponsor’s son from a previous relationship. This son has autism spectrum disorder and suffers from anxiety.
The family attended the hearing and the Tribunal was impressed with how cohesively they bonded with each other. The sponsor has special knowledge and experience with children with disabilities as has the first named applicant. They have researched the subject and are committed and involved in their family life. Putting [Mr E] in care is out of the question for them. Moving to the United States is not feasible as their other son would not adjust well to such a move. The sponsor's son also has a diagnosis of Autism Spectrum Disorder, and is currently receiving disability support services. The treating psychologist, Dr [D] (an Educational and Developmental Psychologist and Clinical Neuroscientist) wrote in a confidential psychology report:
With support and intervention, [Mr F]'s behaviour and functioning have also improved. He is currently working at [a workplace] through an employment support program. [Mr G] and [Ms A] are concerned that, should [Mr G]'s Visa application be rejected, the family could face separation in order for [Mr F] to stay in Australia and continue to receive the disability support that he requires. Alternatively, if the family moved to the United States, [Mr F] will lose any entitlement to disability and employment support services.
The parties would also be in the invidious position where one son could receive government benefits in the United States but the other son could not.
The delegate has not discussed whether the parties are in a genuine spousal relationship. The Tribunal’s task is separate from this question but there is nothing that concerns the Tribunal about genuineness of relationship.
Mitigation of Significant Costs
I am of the view that the parties reduce public expense considerably by intensively caring for their children, particularly [Mr E], who has the greatest needs. They also both work and support their family. They will almost inevitably claim government assistance of some kind, but it would likely be reduced because of the approach they take. The AUD715,000 estimate of future costs may well be an overestimation.
The Tribunal observes that the CMO’s opinion is based on a hypothetical person test, and this at times might be a blunt instrument.
[Mr E] is currently functioning within the extremely low range of intellectual ability.
Dr [D] wrote in her report:
[Mr E] is currently in a very stable home and family environment, and he is functioning at a much higher communicative capacity, and with fewer behavioural difficulties than were evident when he was living in the United States. [Mr G] attributes this not only to his own intensive input with [Mr E], but also to having a loving family dynamic with a positive female role model, and to a much healthier physical environment without the industrial contaminants and air pollutants which are a serious health concern in [their] home town in the USA.
It is the opinion of the examiner that [Mr E]'s best interests would be served by remaining in his current home environment in Australia with his father, stepmother and stepbrother, rather than returning to live in the United States. If [Mr G] and [Mr E] were unable to remain in Australia this would significantly disrupt the family, and [Mr F] would be unable to continue to receive intervention and employment services if he moved to the US. In addition, returning to live in [the US] could negatively impact [Mr E]'s health once again.
[Mr G] has strongly indicated that he does not intend to seek residential care services for [Mr E], and that he will continue to be cared for by his family, as he has been his whole life. [Mr G]'s goal for [Mr E] is to find some supervised and supported employment consistent with [Mr E]'s level of cognitive ability.
Dr [C] a consultant paediatrician confirms the diagnosis of [Mr E] in written evidence.
I have formed the view that [Mr E] will continue to be cared for by his family and this will mitigate costs to a certain extent and weighs in favour of waiver.
Impact on Family, Impact on the Australian Community
The parties have an Australian citizen child, who has lived his whole life in Australia, the son of the sponsor. To go to The United States (the only other country where the applicant can live) would be highly disruptive. The sponsor’s son has autism and has only begun a role at a [workplace] and has made significant progress.
The family would probably be impecunious if they had to move to the United States. Health care costs are considerably higher and it appears that the sponsor’s son would not qualify for most government assistance. The parties are not highly educated, mobile professionals for example that could, fund their own lives significantly because of the additional challenges they face, through no fault of their own.
The family could most likely not access the same level of care through familiar doctors and experts in the United States, because of the prohibitive cost of private medical care.
There would be a deleterious effect on the Australian community if the parties and their children were no longer in Australia.
The first named applicant worked at a local school as an integration aide. The school supported him in 2017 becoming an Australian citizen in a written submission from his principal:
[Mr G] is working at our school in an ongoing capacity and has proven to be an invaluable staff member who has an outstanding work ethic. He is utterly committed to the children he works with and has done a magnificent job in supporting children with diagnoses of extreme anxiety to feel safe and to begin to develop social skills that allow them to feel comfortable in the group. He has a particular talent that has been not only been recognised by myself, but also by his peers and by parents of children he works with. He is a greatly respected member of our school community and is someone I really want to keep because of the value he adds to our committed team of educators. He is someone who is really able to help struggling students feel good about themselves. Not only is [Mr G] wonderful with the children he supports, but he also brings other gifts to the school which he readily shares with all students. He has wonderful knowledge of plants and gardening and has already set up a thriving greenhouse where the children have started propagating and growing plants from seeds.
The sponsor asked the Tribunal to:
Please consider carefully the impact of removing [Mr F]'s stepfather from our household. It would impact negatively on [Mr F]'s progress. As [Mr G] has been trained and has worked in special education (as he is currently), behaviour modification and Special Olympics, he has been a great asset to [Mr F]'s learning, especially learning and practising life skills. [Mr F] (also known as [shortened form]), is currently attending [School 1]. This school has been invaluable for his education and development of life skills. Last year he spent fourth term in an educational residential unit designed to develop independence and living skills and to prepare [Mr F] for life in the community. Programs such as these are difficult to access and not available in other schools.
This year, [Mr F] has the opportunity to participate in the more advanced program which will help him immensely.
Relocating to the United States would deny [Mr F] the education and supports that are currently available for him as an Australian citizen and the supported employment and training options he will need to access in the future.
This would also be detrimental to his social and emotional development.

Another father of a child with additional needs, [a named doctor], wrote in 2017:
I would rate [Mr G] as one of the best support workers I have ever encountered. He is extremely hard working and focussed while being gentle, relaxed and patient where the children need it. Even in [Mr G]'s short time at [School 2], the benefit that he has given the school community has been huge. The benefit that [Mr G] offers to our counts), is massive as he is helping our special needs children achieve independence. [Mr G] represents an investment in our special needs children that will return many times over as they become adults.
In my opinion, the "value" that [Mr G] represents is immeasurable large, and there should be no hesitation in granting him permanent residency.
There is a wide range of written and oral witness evidence that the Tribunal received about the parties’ good character, hard work, and giving back to the community. The Tribunal finds that any forced departure from Australia would be a loss to the community.
This reinforces my conclusion that the applicant's presence in Australia would be unlikely to result in either 'undue cost' to the Australian community or 'undue prejudice' occurring.
Impact on mental health of the sponsor
The sponsor has experienced Post Traumatic Stress in the past and was treated. This was linked to the difficulties of trauma in his first marriage in the United States. While the situation is under control, I find that there is a risk of recurrence if the parties are forced to depart Australia. This further advanced the grounds for waiver of the criterion.
Conclusion
The Tribunal has had the benefit of interviewing the parties in person and has examined an extensive written submission. Key factors that may lead a Tribunal to find that though 'significant' the cost involved in the treatment the applicant for his condition are not 'undue' have been described. The applicant has also thoroughly updated the Tribunal and has provided reliable current information.
Within its discretion the ‘compassionate circumstances or compelling circumstances’ may be relevant.
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 PI04007(2)(b). Therefore, PIC 4007(1)(c) may be waived subject to the applicant satisfying all other requirements for the visa.
It is clear to the Tribunal that when considering the question of any likely 'undue' cost of granting a visa to the applicant, in this case the Tribunal is dealing with the lives of not only one Australian citizen's interests (the sponsor), but also a wider family.
The Tribunal has placed significant weight on unique circumstances of this case, including the fact that he utilised his visa in good faith and remained lawful at all times.
The Tribunal notes the parties continue to contribute to Australian society through their productive endeavours.
The factors described above, including the relationship with the sponsor, the possible mitigation of significant costs, the mental health of the sponsor and the impact on family and impact on the Australian community lead me to conclude that there is unlikely to be an 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.
It places weight on the interests of the applicant's Australian citizen sponsor, and her Australian-born child, and the broader desirability of permitting them to live permanently in the country of their citizenship and birth. Waiving this public interest criteria is unlikely to lead to unwarranted and excessive cost to the community.
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 820.224 of Schedule 2 to the Regulations.
Justin Meyer

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.

[2021] AATA 2553

20 May 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Remedies

Jurisdiction