1800663 (Migration) - [2019] AATA 6364

1800663 (Migration) [2019] AATA 6364 (6 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1800663
COUNTRY OF REFERENCE:                  Vietnam
MEMBER:Ann Duffield
DATE:6 November 2019
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the application 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.

Statement made on 06 November 2019 at 1:48pm

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 visa applicants applied for the visas on 20 September 2016. The delegate refused to grant the visa as the first named visa applicant (now referred to as the visa applicant) did not satisfy cl.309.225 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.
The review applicant appeared before the Tribunal on 6 November 2019 to give evidence and present arguments. The review applicant was represented in relation to the review by his registered migration agent who also attended the hearing. The Tribunal formed a view that it was unnecessary to take evidence from the primary applicant.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
BACKGROUND
The parties provided the Tribunal with a copy of the delegate’s decision along with their application or review.
The primary visa applicant is a citizen of Vietnam as is her daughter, the secondary applicant. She and the review applicant and sponsor, her husband, first met in 2008 and were married in January 2010. The sponsor is an Australian citizen by birth.
The sponsor has resided overseas for the past 25 years or so as a result of his work. He returns to Australia at least annually to visit family and friends. He and the visa applicant have been married for almost ten years and have been in a relationship for over 12 years. They built a house together in Vietnam in 2010 and have been living there together since that time. The visa applicant’s daughter also began living with them in around 2013 and is currently attending university studying [subjects].
The applicant was required to obtain a Medical Officer of the Commonwealth (MOC) opinion which was provided in October 2017. That opinion found that whilst granting a visa to the applicant would not be likely to prejudice the access of an Australian citizen or permanent resident to health care or community services, the MOC found that the provision of health care and/or community services would be likely to result in a significant cost to the Australian community and the applicant, therefore, did not meet the health…

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 6364
Decision Date: 6 November 2019

CaseChat Overview and Summary

This matter concerned an application for a Partner (Provisional) (Class UF) visa, Subclass 309 (Spouse (Provisional)), made by a citizen of Vietnam. The applicant's husband, the sponsor, is an Australian citizen who had resided overseas for approximately 25 years. The primary issue before the Tribunal was whether the applicant met the health criteria under Public Interest Criterion (PIC) 4007, specifically concerning the potential cost to the Australian community arising from her medical condition.

The Tribunal was required to determine if the applicant met PIC 4007, which mandates that applicants be free from certain diseases or conditions that could pose a threat to public health or result in significant costs to the Australian community. While the applicant met the initial requirements of PIC 4007(1)(a) and (b), a Medical Officer of the Commonwealth (MOC) opinion indicated that granting the visa would likely result in significant costs to the Australian community, meaning the applicant did not meet the health requirement under PIC 4007(1)(c). The delegate had previously refused to exercise discretion to waive this criterion.

The Tribunal considered the MOC opinion, which was dated October 2017 and predated recent policy changes by the Department regarding the assessment of 'significant costs' and the assessment period for permanent visa applicants with permanent conditions. The Tribunal found that the MOC opinion was correct. However, given the age of the MOC opinion and the subsequent policy changes, the Tribunal concluded that the matter should be remitted for reconsideration by the Minister.

The Tribunal remitted the application for the Partner (Provisional) visa for reconsideration, with a direction that the first named visa applicant meets PIC 4007(2)(b) for the purposes of clause 309.225 of Schedule 2 to the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.BACKGROUND The parties provided the Tribunal with a copy of the delegate’s decision along with their application or review. The primary visa applicant is a citizen of Vietnam as is her daughter, the secondary applicant. She and the review applicant and sponsor, her husband, first met in 2008 and were married in January 2010. The sponsor is an Australian citizen by birth. The sponsor has resided overseas for the past 25 years or so as a result of his work. He returns to Australia at least annually to visit family and friends. He and the visa applicant have been married for almost ten years and have been in a relationship for over 12 years. They built a house together in Vietnam in 2010 and have been living there together since that time. The visa applicant’s daughter also began living with them in around 2013 and is currently attending university studying [subjects]. The applicant was required to obtain a Medical Officer of the Commonwealth (MOC) opinion which was provided in October 2017. That opinion found that whilst granting a visa to the applicant would not be likely to prejudice the access of an Australian citizen or permanent resident to health care or community services, the MOC found that the provision of health care and/or community services would be likely to result in a significant cost to the Australian community and the applicant, therefore, did not meet the health requirement. The delegate refused to exercise his discretion to waive PIC4007(2) making the following findings:a.The parties are in a genuine relationship of over 7 years;b.They have no close emotional, social or community ties or support available to them in Australia;c.The sponsor wishes to access healthcare and a pension in Australia;d.The sponsor has resided outside of Australia for approximately 24 years and could continue to live in Vietnam;e.Whilst the sponsor is employed in an occupation which is listed on the Skilled Shortage List he is [age] years old and not intending to work upon return to Australia;f.The sponsor has not contributed to the tax system in Australia and that his stated intention is to retire in Australia; andg.The parties combined savings and the above findings mean that the parties have little, if any, capacity to mitigate the potential costs involved for health care.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this review is whether the visa applicant meets PIC 4007 as required by the criteria for the grant of the visa. PIC 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 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.

Evidence

Evidence Before The Court

The delegate refused to exercise his discretion to waive PIC4007(2) making the following findings:a.The parties are in a genuine relationship of over 7 years;b.They have no close emotional, social or community ties or support available to them in Australia;c.The sponsor wishes to access healthcare and a pension in Australia;d.The sponsor has resided outside of Australia for approximately 24 years and could continue to live in Vietnam;e.Whilst the sponsor is employed in an occupation which is listed on the Skilled Shortage List he is [age] years old and not intending to work upon return to Australia;f.The sponsor has not contributed to the tax system in Australia and that his stated intention is to retire in Australia; andg.The parties combined savings and the above findings mean that the parties have little, if any, capacity to mitigate the potential costs involved for health care.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this review is whether the visa applicant meets PIC 4007 as required by the criteria for the grant of the visa. PIC 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 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. The medical records of the applicant show that she meets PIC 4007(1) (a) and (b). 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. In determining whether a person meets PIC 4007(1)(c), r.2.25A requires the Tribunal to seek the opinion of a 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). The Tribunal is satisfied that the MOC opinion is correct.MOC opinion On the evidence before the Tribunal, a MOC opinion has been obtained. It is dated [in] October 2017 and is therefore two years old. It predates the policy changes made by the Department in relation to MOC assessing the health criteria. In particular the new policy:a.raised the threshold level for ‘significant costs’ from AUD 40,000 to AUD 49,000 for all cases; and, b.for permanent and provisional visa applicants only who have a permanent condition, reduced the assessment period from lifelong costs to costs for a maximum of ten years.

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 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.Ann DuffieldSenior MemberATTACHMENTMigration 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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