1718024 (Migration) - [2021] AATA 2553

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).

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 1718024 (Migration)

Details

AGLC: 1718024 (Migration) [2021] AATA 2553
Case: [2021] AATA 2553
Decision Date: 20 May 2021

CaseChat Overview and Summary

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820 (Spouse), where the applicant was found not to meet the health criteria due to a dependent child not meeting the requirements of Public Interest Criterion (PIC) 4007(1)(c). The review was conducted by Justin Meyer.

The primary legal issue before the Tribunal was whether the applicant met PIC 4007, specifically clause 4007(1)(c), which requires an applicant to be free from a disease or condition that would likely necessitate significant health or community services, resulting in substantial cost to the Australian community or prejudice to the access of Australian citizens or permanent residents to such services. The Tribunal also considered whether the waiver provisions under PIC 4007(2) were applicable.

The Tribunal reasoned that while a Medical Officer of the Commonwealth (MOC) opinion was required to assess PIC 4007(1)(a), (b), and (c), and such an opinion must be taken as correct, the Tribunal must first be satisfied that the MOC applied the correct statutory criteria. In this instance, the Tribunal determined that the waiver provision under PIC 4007(2)(b) was applicable. The Tribunal placed weight on the interests of the applicant's Australian citizen sponsor and their Australian-born child, concluding that waiving the PIC 4007(1)(c) requirement was unlikely to result in undue cost to the community or prejudice access to services.

Consequently, the Tribunal remitted the application for reconsideration with a direction that the applicant meets PIC 4007(2)(b) for the purposes of clause 820.224 of Schedule 2 to the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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 MeyerMemberATTACHMENTMigration 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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