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

1. 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).

2. 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.

3. 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.

4. The review applicant was represented in relation to the review by his registered migration agent, who attended the hearing.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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))?

7. 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.

8. 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.

9. 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.

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

11. 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?

12. 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.

13. A MOC opinion issued on 21 April 2016, which informed the Delegate’s decision, found that the applicant did not meet the health requirement because he failed to meet PIC 4007(1)(c)(ii)(A). That MOC advised that due to the applicant’s [medical condition] the likely cost to the Australian community would be AUD [amount]. The Delegate was not satisfied that the potential costs were outweighed by mitigating factors and/or compassionate and compelling circumstances, and therefore decided not to waive the health requirement in this case.

14. On 13 September 2019 the Tribunal wrote to the applicant advising him that the Tribunal did not consider the MOC opinion of 21 April 2016 current, and invited him to obtain a further MOC opinion. The applicant agreed to the Tribunal’s request, and a further MOC opinion dated 22 October 2019 was received by the Tribunal on the same day.

15. This MOC opinion advises that the applicant meets the requirements of PIC 4007(1)(a) and 4007(1)(b) in Schedule 4 to the Regulations. The MOC was satisfied that the applicant is (a) free from tuberculosis; and is (b) 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. The MOC opinion identifies the applicant’s condition as [a medical condition] which has responded well to [treatment] and requires ongoing treatment and medical review’. It estimates the cost to the Australian community of the services identified in form 884 as likely to be AUD [amount].

16. The MOC opinion therefore finds that the applicant does not meet the health requirement, based on the cost threshold.

17. Under the heading ‘Likely Prejudice to Access’ the MOC provides the opinion that granting a visa to the applicant for the assessed period of stay ‘would not be likely’ to prejudice the access of an Australian citizen or permanent resident to health care or community services.

18. The Tribunal is satisfied that the MOC opinion dated 22 October 2019 identifies the applicant’s medical condition and the form or level suffered by the applicant, and that it covers the period of assessment stipulated in 4007(1A), that is, for an application for a permanent visa. The Tribunal notes that the MOC advises that the opinion was provided ‘bearing in mind the 1 July 2019 Significant Cost Threshold and assessment period guidelines’.

19. The Tribunal is satisfied that the MOC report refers to the relevant criteria, states an opinion of relevant costs, and correctly applies the ‘hypothetical person’ test. The Tribunal is further satisfied that the MOC opinion had regard to the relevant information and documentation; that it correctly reflects an assessment of costs and access to health care or community services; and that it correctly identifies whether the applicant satisfied the requirement in PIC 4007(1)(c) at the time of decision.

20. The Tribunal therefore finds that the MOC opinion is valid.

21. Accordingly, 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?

22. 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).

23. 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.

24. A written submission dated 26 November 2019 was provided to the Tribunal by the parties’ representative. This addresses the parties’ employment situations and prospects; their country of intended settlement; and their access to family and community support. Supporting documents were attached. The Tribunal further explored issues relevant to the waiver provision with the applicant and witnesses at hearing.

25. A letter signed by a Senior Staff Specialist [stated] that: since the applicant’s arrival in Australia the applicant has supplied his own [medications] which he sources online; that with continued medication his prognosis is excellent and there is very low likelihood of the applicant developing complications; that with continuing medication there will be no impact on the applicant’s ability to work and contribute to the Australian community; and that there is no scarcity of medical resources available to the applicant. At hearing the applicant advised that he spends AUD [amount] a month on his [medication]. Order forms and receipts were provided showing that the applicant has imported his medication in three-month [batches].

26. The applicant confirmed at hearing that he is at the time of decision working in his area of qualifications obtained in [Germany]. A letter was provided signed on 19 November 2019 by the Director of [Employer 1], confirming that the applicant has ‘been contracting’ to the company for over six months ‘in the role of [Occupation 1], as well as fulfilling the role of [Occupation 2]’. The letter advises that the applicant is a talented and valued worker, and confirms that if granted residency he would be offered a full-time position with a remuneration package of AUD [amount] per annum. The sponsor advised that he has full-time employment at the same [employer] for whom he worked at the time of application, but that he is now working in a different [location] and at the level of [Position 1].

27. The sponsor’s father (the applicant’s father-in-law) provided a statutory declaration signed on 4 August 2016 in which he declared that he is ‘fully prepared’ and ‘willing and able’ to assist the parties financially for any of the applicant’s medical costs and ‘if the parties fall on financial hardship’. He stated in the declaration that he and his wife both work at the same company; that they have a combined annual income of AUD [amount]; that they own two properties with a combined value of [amount] Australian dollars and debt of AUD [amount]; and that they own other assets worth up to AUD [amount].

28. The applicant advised that in terms of assets, he sold some of his gold holdings in Germany in order to purchase a [boat] in [Australia], but that he still retains some investments, namely shares, in Germany. He advised that he has received an inheritance, following the death of a family member in Germany, of around [amount] Australian dollars, which the parties intend to use as deposit on a house in [Australia] should the visa be granted.

29. In testimony provided at hearing the sponsor’s father advised that his and his wife’s financial position has not changed since he signed his statutory declaration of 4 August 2016. He advised that he and his wife have no dependents, as all of their children are now adults. He stated that the applicant has become a part of the family, and that he and his wife remain committed to providing him and their son with financial support, should this be needed, as well as emotional support.

30. The sponsor’s father was a compelling witness, and the Tribunal gives significant weight to his testimony.

31. The applicant stated that he was willing to pay the cost of his medication into the future. While the applicant’s preparedness to continue paying for his own medication is not relevant to the criterion in question, the Tribunal notes that the income of the applicant alone is sufficient to mitigate the foreseeable costs of his health care, and that further financial support is available to the applicant and the sponsor from family members of the sponsor.

32. The parties have been in a relationship for over six years, and married, but not under Australian law for over five years. Photos were provided of their wedding in Germany, attended by the applicant’s family members. The sponsor advised at hearing how he tried but found it difficult to negotiate the German language, training and employment systems and to integrate into German society despite support from the applicant’s family. The parties advised that it is their preference to live in Australia and continue to travel annually to Germany to spend time with the applicant’s family. The applicant stated that he has enjoyed working in this country, and that the sponsor’s family has become his family. He advised that he and the sponsor participate weekly in family gatherings and barbeques. The sponsor advised that the parties have a lot of friends in [Australia].

33. There is no information before the Tribunal to indicate other than the applicant has complied with his previous visa conditions.

34. The Tribunal finds that the applicant has family links and friends in Australia who are supportive of him and the sponsor, and that these family members and friends would suffer from the absence of him and the sponsor should the visa not be granted. The Tribunal accepts from the testimony of the applicant’s employer and the sponsor’s father that the applicant has the skills and personal qualities to make a significant contribution to Australia.

35. The Tribunal finds that in the circumstances of this case the granting of the visa would be unlikely to result in undue cost to the Australian community, and that there are relevant compassionate and compelling circumstances. The Tribunal further finds, based on the MOC opinion noted above, that the granting of the visa would be unlikely to result in undue prejudice to the access to health care or community services of an Australian citizen or permanent resident.

36. The Tribunal therefore is satisfied that the granting of the visa would be unlikely to result in undue cost or undue prejudice within the terms of PIC4007(2)(b). Therefore PIC 4007(1)(c) may be waived subject to the visa applicant satisfying all other requirements for the visa.

37. 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

38. 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 Millbank

    
    

    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.