1724247 (Migration) - [2019] AATA 6609

1724247 (Migration) [2019] AATA 6609 (9 December 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1724247
COUNTRY OF REFERENCE:                   Germany
MEMBER:Adrienne Millbank
DATE:9 December 2019
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Spouse (Provisional)) visa:
·PIC 4007(2)(b) for the purposes of cl.309.225 of Schedule 2 to the Regulations.
Statement made on 09 December 2019 at 4:30pm

CATCHWORDS
MIGRATION – refusal – Partner (Provisional) (Class UF) visa - subclass 309 – failed to meet PIC 4007–health requirements not met – valid MOC opinion – compelling and compassionate circumstances exist –decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994,r 2.25, Schedule 2, cl 309.225, Schedule 4
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 a decision made by a Delegate of the Minister for Immigration and Border Protection on 25 September 2017 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 6 August 2015. The Delegate refused to grant the visa as the visa applicant did not satisfy cl.309.225 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the health criterion in Public Interest Criterion (‘PIC’) 4007 of Schedule 4 to the Regulations was not met. The decision was made not to waive the health requirement, as the Delegate was not satisfied that the cost identified was outweighed by mitigating factors and/or compassionate and compelling circumstances.
The review applicant appeared before the Tribunal on 28 November 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor and the sponsor’s father.
The review applicant was represented in relation to the review by his registered migration agent, who attended the hearing.
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 applicant in this case was diagnosed with [a medical condition] in November 2015.
Is the applicant free from…

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.

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Details

Case: [2019] AATA 6609
Decision Date: 9 December 2019

CaseChat Overview and Summary

This matter concerned an application for a Partner (Provisional) (Class UF) visa, subclass 309, which had been refused on the grounds that the applicant failed to meet Public Interest Criterion (PIC) 4007, relating to health requirements. The applicant had been diagnosed with a medical condition in November 2015. The review was before the Tribunal, with Adrienne Millbank as the Member.

The primary legal issue before the Tribunal was whether the visa applicant met PIC 4007, which requires an applicant to be free from certain diseases or conditions that could pose a threat to public health or the Australian community, or that would likely result in significant costs or prejudice access to health services. The Tribunal was required to consider whether a Medical Officer of the Commonwealth (MOC) opinion was necessary and, if so, to treat that opinion as correct, provided the MOC had applied the correct statutory test. The Tribunal also had to consider whether compelling and compassionate circumstances existed to waive the health requirement, as the applicant was applying for a permanent visa, meaning the exemption in PIC 4007(1B) did not apply.

The Tribunal reasoned that a MOC opinion was required in this case. It noted that while a MOC opinion must be taken as correct, the Tribunal must first be satisfied that the MOC applied the correct test, referencing *Robinson v MIMIA* and *Ramlu v MIMIA*. The Tribunal found that the MOC opinion provided did not sufficiently identify the medical condition or the form or level of the condition suffered by the applicant, nor did it clearly demonstrate that the MOC had applied the statutory criteria by reference to a hypothetical person with that condition. Consequently, the Tribunal concluded that the matter should be remitted for reconsideration.

The Tribunal remitted the application for the Partner (Provisional) (Class UF) visa for reconsideration by the Minister, with a direction that the visa applicant met PIC 4007(2)(b) for the purposes of clause 309.225 of Schedule 2 to the Regulations. This indicated that the Minister was to consider the remaining criteria for the visa, implying that the waiver provision for compelling and compassionate circumstances was to be assessed.

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 applicant in this case was diagnosed with [a medical condition] in November 2015. 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), 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 be correct: r.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

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 (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Spouse (Provisional)) visa:·PIC 4007(2)(b) for the purposes of cl.309.225 of Schedule 2 to the Regulations.Adrienne MillbankMemberATTACHMENTMigration 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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