1732568 (Migration)

[2018] AATA 5803

1732568 (Migration) [2018] AATA 5803 (13 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1732568

COUNTRY OF REFERENCE:                 Vietnam

MEMBER:Kate Millar

DATE:13 December 2018

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named 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.

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – health requirements not met – provision of health care – significant cost to Australian community – requirements of PIC 4007 waived – applicants have financial resources to meet medical costs – family links in Australia – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 2.25A, Schedule 2, cl 309.225, 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 decisions made by a delegate of the Minister for Immigration on 5 December 2017 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 1 June 2015. The delegate refused to grant the visas as both applicants were found not to meet the health requirements for the visa as both have Hepatitis B.

3. [Mr A] appeared before the Tribunal on 28 August 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

4. At this hearing it became apparent that [Mr A] wanted new health assessments completed for both visa applicants, and the hearing was adjourned to allow him  the opportunity to seek new health assessment.  New health assessments were provided on 25 September 2018 showing that [Ms A] did not meet the health requirement but that [Ms B] now met the health requirement.

5. [Mr A] was invited to provide further comment on the health assessment provided, and was later further invited to show he had the financial resources to meet the cost of services that would be required by [Ms A] as he claimed.  The Tribunal also invited the Minister (through the Department of Home Affairs) to make any further submissions on the health assessment. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The criteria for a subclass 309 visa are set out in Part 309 of Schedule 2 of the Migration Regulations 1994. To be granted the visa, at least one applicant must satisfy the primary criteria for the visa. Other members of the family unit are only required to meet the secondary criteria. In this case, [Ms A] applied for the visa on the basis that she is the spouse of [Mr A] and [Ms B] applied on the basis that she is the daughter of [Ms B]. It follows that [Ms A] is the primary applicant and [Ms B] is the secondary applicant.

8. The primary criteria include at cl.309.225 that the primary applicant meets (among other things) Public Interest Criterion 4007 (PIC 4007).  PIC 4007 is set out in Schedule 4 of the Regulations and appears 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.

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

9. 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.  A Medical Officer of the Commonwealth (MOC) has found that [Ms A] meets PIC 4007 (a) and (b).  In issue in whether she meets PIC 4007(c).

10. Clause 4007(1)(c) requires the applicant is free of a 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 

    ·     The 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.

11. In deciding whether a person meets PIC 4007(1)(a), (b) or (c), r.2.25A requires the Tribunal in this case to seek the opinion of a Medical Officer of the Commonwealth (MOC). Where the 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. The MOC opinion for [Ms A] identifies the medical condition to which the public interest criterion has been applied, the form of the condition and had reached the opinion by reference to a hypothetical person who suffers from the same form or severity of the condition.  Accordingly the MOC opinion is valid.

14. The MOC opinion for [Ms A] was that she does not meet PIC 4007(1)(c)(ii)(A), that the provision of health care or community services to [Ms A] would be likely to result in a significant cost to the Australian community in the areas of health care or community services.  The MOC estimates the cost at $148,000 for medical services and pharmaceuticals. 

15. The opinion of the MOC in relation to [Ms B] was that she meets the health requirement for a permanent stay in Australia, subject to her signing an undertaking in accordance with PIC 4007(1)(d).  This is a singed undertaking to present herself to a health authority in a State or Territory of intended residence for a follow up medical assessment. 

16. Accordingly, based on the opinion of the MOC, [Ms A] does not satisfy PIC 4007(1)(a)(c) and [Ms B] satisfies PIC 4007 subject to her giving a signed undertaking.

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

17. 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).

18. 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.

19. 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.

20. In this case, the applicants submit they have the financial resources to meet the cost of [Ms A]’s condition, and that that [Ms A]’s eldest daughter is an Australian permanent resident and also lives in Australia.  [Ms A] has a grandchild in Australia.  [Mr A] submits that if [Ms A] and [Ms B] are not able to come to Australia he will have to relocate to Vietnam away from his extended family in Australia. 

21. The more recent health assessment for [Ms A] states the likely cost is $148,500, which is significantly less than the likely cost of $250,800 from the first assessment dated 24 November 2016.  The delegate also reported, and documentary evidence provided by [Mr A] shows, that he has approximately $270,000 in savings in Vietnam.  He provided certificates to show he has the use of land in Vietnam. 

22. [Mr A] has been out of Australia for long periods of time, most recently for over three years from February 2015 until April 2018 when he returned for one month.  Prior to this he has again been out of Australian between October 2013 and January 2015, again only returning for a relatively short period of six weeks.  The applications states he met [Ms A] in June 2013, and prior this date he spent the majority of his time in Australia, with periods out of Australia for several months each year.  [Mr A] said he had his Vietnamese citizenship re-granted in September 2014 and has lived in Vietnam with his wife since then. 

23. In his statutory declaration dated 30 July 2018, [Mr A] states they married [in] March 2015 and first applied for the visas on 1 June 2015.  The visas were refused on 5 December 2017 and they applied to the Tribunal.  That the application was lodged shortly after they married shows both a commitment to living as husband and wife and to pursuing a life in Australia.  Since then [Ms A]’s daughter [Ms C] has been granted a permanent visa and has had a child.  The secondary applicant [Ms B] has been granted a student visa.  [Mr A] said his extended family are in Australia, and that there would be hardship to his family if he were not able to live in Australia.

24. [Mr A] states he has owned businesses in Australia, and that [Ms A] is the director of a hotel, restaurant and café outlet in Vietnam.  He believes her business skills will be able to be used in Australia, and that he intends to re-enter the workforce in Australia to provide a stream of income.

25. The Tribunal places significant weight on the family ties [Mr A] and [Ms A] have in Australia, with the family of both being in Australia.  [Ms A] has a grandchild who lives here.  [Mr A] has the financial resources to meet the medical costs for [Ms A] and [Ms B] has now been assessed as meeting PIC 4007. 

26. 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.

27. As the Tribunal has found the requirement of PIC 4007 (1)(c) may be waived in relation to [Ms A], [Ms B] may also now meet the criteria for the visa, and it is also appropriate to remit her visa application for further consideration.

28. Given the findings above, the appropriate course is to remit the applications for the visas to the Minister to consider the remaining criteria for the visa.

    DECISION

29. The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named 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.

    Kate Millar

    
    

    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.