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

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).
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.
[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.
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.
[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.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
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…

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: [2018] AATA 5803
Decision Date: 13 December 2018

CaseChat Overview and Summary

This matter concerned an application for a Partner (Provisional) (Class UF) visa, Subclass 309 (Spouse (Provisional)), made by [Ms A] as the primary applicant and [Ms B] as a secondary applicant. The dispute arose because the primary applicant, [Ms A], did not meet the health requirements stipulated by Public Interest Criterion (PIC) 4007 of the Migration Regulations 1994. The decision was made by Kate Millar, a Member of the Tribunal.

The Tribunal was required to determine whether the primary applicant, [Ms A], satisfied PIC 4007(1)(c), which concerns freedom from a disease or condition that would likely require significant health care 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 the requirement to obtain and apply the opinion of a Medical Officer of the Commonwealth (MOC) in assessing PIC 4007, and the circumstances under which such an opinion must be taken as correct.

The Tribunal reasoned that while a MOC had found the applicant met PIC 4007(a) and (b), the assessment of PIC 4007(c) was in issue. The Tribunal noted that it must take a MOC's opinion as correct, provided the MOC applied the correct statutory test. However, the provided text indicates that the MOC's opinion regarding PIC 4007(c) was not definitively established or applied in a manner that satisfied the Tribunal. Consequently, the Tribunal concluded that the matter should be remitted for reconsideration.

The Tribunal remitted the applications for Partner (Provisional) (Class UF) visas for reconsideration, with a direction that the first named visa applicant, [Ms A], meets PIC 4007(2)(b) for the purposes of cl.309.225 of Schedule 2 to the Regulations. This suggests that the waiver provisions for PIC 4007(c) were considered or found to be applicable in the context of the applicant's circumstances, potentially due to their financial resources to meet medical costs and family links in Australia, although these specific grounds for waiver are not explicitly detailed in the provided decision text.

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 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. 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))? 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). 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. 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? 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 applications for the visas to the Minister to consider the remaining criteria for the visa.DECISION 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 MillarMemberATTACHMENTMigration 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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