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

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – health criteria – Medical Officer of the Commonwealth (MOC) opinion – waiver of criterion – undue cost to the Australian community – compassionate or other circumstances – applicant’s contribution to Australia’s tax system – maintaining family connections to Australia – decision under review remitted   

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.25; Schedule 2, cl 309.225; Schedule 4 PIC 4007

CASES

Bui v MIMA (1999) 85 FCR 134

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 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.

3. 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.

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

   BACKGROUND

5. The parties provided the Tribunal with a copy of the delegate’s decision along with their application or review.

6. 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.

7. 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].

8. 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.

9. 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; and

   g.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

10. 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

11. 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.

12. The medical records of the applicant show that she meets PIC 4007(1) (a) and (b).

13. 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.

14. 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).

15. The Tribunal is satisfied that the MOC opinion is correct.

    MOC opinion

16. 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.

17. The effect of these changes is that an applicant who previously failed health criteria because of an adverse MOC opinion or further MOC opinion may, in certain circumstances, now meet the health criteria under the more favourable policy.  In the present case the MOC estimated the cost to be over AUD$600,000 over the lifetime of the applicant (who is currently [age] years of age).

18. The Tribunal raised this matter with the sponsor and his representative at the hearing and inquired as to whether they would like to obtain another MOC which may, as stated above, be more favourable.

19. The parties indicated to the Tribunal that they did not believe that the issue at stake was whether the MOC would be more favourable, but that the delegate applied the wrong test when forming a view as to whether the PIC should be waived.

    Should the requirements of PIC4007(1)(c) be waived?

20. 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).

21. 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’).

22. 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.

23. The parties argue that the delegate erred in applying a test in relation to the applicant’s contribution to Australia’s tax system and that he and the applicant could continue to live in Vietnam as they have done for the past more than ten years.

24. The Tribunal is minded to agree with the submissions of the applicant in this regard. He is an Australian citizen and his eligibility to sponsor his spouse to Australia is not based upon the tax contributions he has made in the past or is likely to make in the future. In relation to his eligibility for a pension or other material support, this is, again, reliant upon his status as an Australian citizen and not on his tax contributions. In any case, whether he would be eligible for a pension or other material support is a determination for Centrelink.

25. The parties have provided evidence that if they liquidate their assets in Vietnam they would be in a position to bring to Australia approximately AUD$950,000 which would be sufficient to buy a house. The visa applicant is also of working age and the applicant told the Tribunal that whilst she had no formal qualifications she had vast experience operating a business and they planned to open a [business type] or something similar if she were allowed to come to Australia. The sponsor indicated to the Tribunal that he and the applicant would both be involved in such an enterprise.

26. In the Tribunal’s mind the parties do have a significant capacity to mitigate the costs associated with the applicant’s health condition.

27. The sponsor has siblings in Australia which he has continued to visit on an annual basis whilst he has been working offshore. Of his [age] years he has spent about a third offshore and maintained relationships with his family and friends. In the Tribunal’s mind, notwithstanding the fact he has a birthright and entitlement to reside in Australia regardless of the time he has spent offshore, his connections with Australia far outweigh his connections to any other country.

28. The visa applicant’s immigration history is without blemish. She has visited Australia on numerous occasions, most recently in October 2018 to attend to the sponsor who was undergoing surgery in relation to [a medical condition]. She abided by the conditions of her visa and departed prior to its cessation. Furthermore, she was required to undertake a standard medical examination in relation to the grant of that visa and it was granted without issue.

29. The parties are in a genuine marriage and share in the care and financial support of a dependent child. They have been married for almost ten years and have lived together for around 12 years. There is no evidence before the Tribunal that the relationship between is not genuine, continuing and exclusive.

30. The Tribunal accepts the MOC opinion as it was issued two years ago. A further MOC opinion in all likelihood would be more favourable to the applicant but, even if it was not and the applicant continues not to satisfy PIC 4007(1)(c), the Tribunal is satisfied that the PIC 4007 should be waived for the reasons stated above.

31. 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 PIC4007(2)(b). Therefore PIC 4007(1)(c) may be waived subject to the applicant satisfying all other requirements for the visa.

    CONCLUSION

32. 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

33. 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 Duffield

    
    

    Senior 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.