1732677 (Migration) - [2021] AATA 796

1732677 (Migration) [2021] AATA 796 (8 January 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1732677
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Hugh Sanderson
DATE:8 January 2021
PLACE OF DECISION:  Sydney
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.820.223 of Schedule 2 to the Regulations.

Statement made on 08 January 2021 at 2:37pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 – transgender female – HIV infection – specific medication not available in Thailand – applicant did not meet the health criteria – long-term genuine relationship – significant emotional distress – requirements of PIC 4007(1)(c) should be waived – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 2.25; Schedule 2, cl 820.223, Public Interest Criterion (‘PIC’) 4007, 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 on 3 December 2017 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 23 April 2016. The delegate refused to grant the visa as the applicant did not satisfy cl.820.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4007 of Schedule 4 to the Regulations was not met.
Background
The applicant identifies as a transgender female. Although she is referred to as a male in the Department’s decision and records, the Tribunal has used female pronouns to identify her in this decision.
The applicant was born in Thailand and is currently [age] years old. Her parents, a stepbrother and a sister continue to live in Thailand. She is sponsored in the application by [Mr A] who was born in New Zealand and is currently [age] years old. He is an Australian citizen. His father and two sisters reside in New Zealand.
The parties claimed they first met each other when the sponsor was on a holiday in Thailand [in] February 2010. It is claimed they continued to communicate with each other when the sponsor returned to Australia. The sponsor travelled to Thailand [in] May 2010 and returned to Australia [in] June 2010. It was claimed that the parties committed to a de facto relationship with each other when the sponsor arrived in Thailand on that trip. The sponsor again travelled to Thailand in July 2010. The parties registered their relationship in NSW [in]…

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: [2021] AATA 796
Decision Date: 8 January 2021

CaseChat Overview and Summary

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, made by a transgender female applicant who was HIV positive. The primary dispute revolved around whether the applicant met the health criteria stipulated by Public Interest Criterion (PIC) 4007, specifically concerning her HIV infection. The decision was made by Hugh Sanderson, a Member of the Tribunal.

The central legal issue before the Tribunal was whether the applicant satisfied PIC 4007, which requires applicants to be free from certain diseases or conditions that could pose a threat to public health or result in significant costs to the Australian community. The Tribunal was required to determine if the applicant's asymptomatic HIV infection meant she did not meet the criteria under PIC 4007(1)(a), (b), or (c), and whether the waiver provisions under PIC 4007(2) were applicable. A further consideration was the requirement to obtain an opinion from a Medical Officer of the Commonwealth (MOC) and the weight to be given to such an opinion.

The Tribunal reasoned that while the applicant's HIV infection meant she did not meet the literal requirements of PIC 4007(1)(c), the regulations provided for a waiver of this criterion under PIC 4007(2) if the applicant met all other visa criteria and granting the visa would not result in undue cost or prejudice to access to health care for Australian citizens or residents. The Tribunal noted that the applicant's specific medication was not available in Thailand, which was a significant factor in considering the potential impact on her health and the need for Australian health services. The Tribunal concluded that the matter should be remitted for reconsideration by the Minister, with a direction that the applicant met PIC 4007(2)(b) for the purposes of the visa grant.

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 is suffering from an asymptomatic HIV infection.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 to 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 an MOC is required, the Tribunal must take it be correct: r.2.25A(3).Is an MOC opinion required? On the evidence before the Tribunal, an 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 (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.820.223 of Schedule 2 to the Regulations.Hugh SandersonMemberATTACHMENTMigration 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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