1804614 (Migration)

[2018] AATA 3931

1804614 (Migration) [2018] AATA 3931 (21 August 2018)

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  1804614

DIBP REFERENCE(S):  BC2016/1362806

MEMBER:  Susan Trotter

DATE AND TIME OF

ORAL DECISION AND REASONS:          21 August 2018 at 12:09 pm (QLD time)

DATE OF WRITTEN RECORD:               06 September 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for   a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets  the following criteria for a Subclass 309 (Spouse (Provisional)) visa:

·PIC 4007(1) for the purposes of cl.309.323 of Schedule 2 to the Regulations.

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) – Subclass 309 (Spouse (Provisional) – health criteria – adverse Medical Officer of the Commonwealth opinion – medical condition – discretionary factors – close and committed relationship – Australian citizen children – significant family ties to Australia – review applicant carer of her mother – decision under review remitted for reconsideration

LEGISLATION
Migration Regulations 1994 (Cth), r 2.25A Schedule 2 cl 309.323 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.

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs (the Minister) on 29 January 2018 to refuse to grant the applicant a Partner (Provisional) (Class UF) Subclass 309 visa under the Migration Act 1958 (the Act).

1. The visa applicant [is] [an age]-year-old citizen of Iran. He applied for the visa on 5 April 2016 on the basis of his relationship with the review applicant, his sponsor and [wife]. [The sponsor] is [an age]-year-old citizen of Australia who had been residing in Australia since 2005. The review applicant and the visa applicant are the parents of an almost [age]-year-old daughter and [an age] old son, both of whom are Australian citizens.

1. Class UF contains only one subclass: Subclass 309 (Partner (Provisional)). The criteria for this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Relevantly to this matter, the primary criteria include cl.309.323 which requires the applicant to satisfy certain Public Interest Criteria (PIC).

1. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.323 of Schedule 2 to the Regulations because the health criteria in PIC 4007 of Schedule 4 to the Regulations was not met.

1. The review applicant lodged an application for review of this decision with the Tribunal on  21 February 2018.

1. The review applicant appeared before the Tribunal on 21 August 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an  interpreter in the Persian and English languages.

1. The review applicant was represented in relation to the review.

1. For the following reasons, as already indicated, the Tribunal has concluded that the matter should be remitted for reconsideration.

STATEMENT OF DECISION AND REASONS

1. PIC 4007 of Schedule 4 to the Regulations, as applies to this case, requires the visa applicant, in certain circumstances, to undergo a medical assessment and to be free of certain diseases or conditions that may impact upon the community.

1. In determining whether a person meets PIC 4007(1)(a), (b) or (c), r.2.25A requires the opinion of a Medical Officer of the Commonwealth (MOC) be sought 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 for a specified country, and there is no information known to Immigration to the effect that the person may not meet those requirements.

1. Where an opinion of a MOC is required, the Tribunal must take it to be correct: r.2.25A(3), but it must first be satisfied that 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 PIC has been applied and the form and 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 and level of the condition.

1. PIC 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.

1. PIC 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.

1. The requirement in PIC 4007(1)(c) may be waived if, among other things, a 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: PIC 4007(2)(b)(i) and (ii).

1. The Tribunal considered each of the matters arising from these requirements in turn.

1. The Tribunal considered, "Is a MOC opinion required, and if so, has the MOC applied the correct test in forming the opinion?".

1. A MOC opinion dated 28 July 2016 was provided in relation to [the visa applicant] based upon information before the medical officer, including medical reports. It states that the review applicant was a then [age]-year-old person with [a medical condition] and is [receiving treatment] and that the condition is likely to be permanent. The MOC opinion states that in the assessor's opinion, provision of health care and/or community services, including medical services and pharmaceuticals, would be likely to require long-term specialist health care services, including but not limited to [pharmaceuticals], and that a hypothetical person with this disease or condition at the same severity as the visa applicant, would be likely to require health care or community services during the period of a permanent stay in Australia which would be likely to result in a significant cost to the Australian community in the areas of health care and/or community services. That cost is identified in a related document as likely to total $607,500. It is also noted that the MOC’s opinion is that granting the visa would not be likely to prejudice the access of an Australian citizen or permanent resident to health care or community services.

1. The Tribunal has had regard to the Federal Court decisions in Robinson and Ramlu and is satisfied that the MOC opinion did not apply the incorrect test in this matter. Specifically, the Tribunal is satisfied that the opinion identifies the condition to which the PIC has been applied, has ascertained the form or level of the condition suffered by the visa applicant, and has applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition.

1. The Tribunal is therefore bound to accept the final assessment of a MOC to be correct for the purposes of deciding whether the visa applicant satisfies the relevant health criterion.

1. As regards to the next issue, as to whether the visa applicant is free from tuberculosis and free from a disease or condition that is, or may, result in him being a threat to public health in Australia or a danger to the Australian public, the Tribunal is satisfied that he is free from tuberculosis and free from a disease of that nature. The Tribunal therefore finds that the visa applicant satisfies PIC 4007(1)(a) and (b).

1. In relation to the next issue, based on the opinion of the MOC, however, the visa applicant does not satisfy PIC 4007(1)(c), as he has [a medical condition], and the MOC has

determined that provision of health care and/or community services would be likely to result in a significant cost to the Australian community in those areas. Accordingly, that  requirement is not satisfied.

1. The Tribunal therefore then considered whether the requirements of PIC 4007(1)(c) should be waived. They may be waived if, among other things, a 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, pursuant to PIC 4007(2). The evaluative judgment of whether the cost to the Australian community or prejudice to others is undue may import consideration of compassionate or other circumstances. As was recognised in the case of Bui v MIMA (1999) 85 FCR 134 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.

1. Departmental policy guidance on the exercise of this discretion is contained in the procedural advice manual of the Department of Home Affairs (the Department). 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 cost or prejudice to access to care or services involved, available support of family or community groups, potential contribution to Australia by the applicant or family members, and other matters.

1. The Tribunal notes more specifically the policy as follows:

Criteria considered to be compassionate and compelling includes whether:

·if an Australian citizen sponsor were forced to relocate, it would negatively impact on their health

·if a health waiver were not exercised, this would negatively impact on Australian citizen children that the sponsor has direct care of (particularly those children of the relationship if a Partner visa has been applied for or those children are already residing in Australia)

·if a health waiver was not exercised, this would result in immediate family members living apart

·an Australian citizen sponsor would not be able to migrate to the applicant’s home country (for example, because same-sex migration to that country is not available)

·the applicant has significant family links to Australia, or significant support from family or community groups

·Australia would miss out on a significant benefit that the person could contribute to Australia’s business, economic, cultural or other development (for example, a special skill that is highly sought after in Australia) if the person was not granted the visa

·There are any other compelling or compassionate factors including the location and circumstances of the applicant and/or sponsor’s family members.

Criteria considered to demonstrate an applicant’s ability to mitigate the significant costs includes:

·the skills, qualifications and experience of all applicants, as appropriate. For example, the occupational skills, qualifications, English language ability, work history and/or future employment prospects of the primary applicant and any adult family members.

·Whether the applicant and/or other working family members have occupational skills in high demand (refer to the Medium and Long-term Strategic Skills List (MLTSSL) of the Skilled Occupation List)

·Whether the applicant and/or other family members have substantial assets or an ability to mitigate the costs/ prejudice to access involved- for example due to private care  arrangements and/or support being available. Any available care cannot, however, be at a level that the Australian community would find unacceptable. No person requiring care in Australia should be expected to accept a lesser standard of food, accommodation, work

environment or social interaction than that which would be expected to be available to Australian residents. The care arrangements should also be considered with regard to their durability, for example, care that is provided by an ageing family member may not be feasible in the longer term.

Other criteria to consider are:

·Whether the family is already settled or proposes to settle in a remote, rural or regional area

·The immigration history of the applicant (and sponsor/ proposer if applicable), including, for example, compliance to date with immigration requirements and any undertakings.

Alternatively, factors that would add weight to a waiver not being exercised include (as three examples):

·the applicant, sponsor and their immediate family can reside in a third country with no particular hardship (for example, they hold citizenship for another country or they have been residing in another country for a significant period and are eligible to remain there)

·a lack of family links to Australia, and

·a lack of ties to Australia more generally (for example, if the applicant and sponsor have been absent from Australia for a significant period of time/majority of their life, and there is no reason why they cannot continue to reside in their current location).

When assessing a second stage visa application, it is unlikely that a s65 delegate will need to assess whether to exercise a health waiver. This is because second stage visa applicants rarely complete immigration medical examinations again when their permanent visa application is being decided. Where visa applicants were, under policy, requested to complete repeat immigration medical examinations at the second stage, a health waiver will also need to be re-considered.

1. The Tribunal has considered the totality of the evidence and detailed and comprehensive submissions before it, and the entirety of the visa applicant’s and review applicant's circumstances. The Tribunal accepts that the couple have a close and committed long-term relationship. The Tribunal observes that the Department has not yet considered whether the couple meet the relationship requirements for the purposes of the visa, but having had  regard to the substantial evidence before it, the Tribunal is satisfied that the visa applicant is the spouse of the review applicant and was at the time of the visa application, and is now at the time of decision, noting that they were married in 2016 and now have two [children].

1. The Tribunal is not satisfied that the review applicant being forced to relocate to Iran would necessarily negatively impact upon her health as a direct result of the location. However, the Tribunal is satisfied that, given her long-term residence in Australia through her entire adulthood, and her close and extended family links in Australia, the upheaval of her and her young children away from Australia and her family could impact upon her long-term mental health, and gives this consideration some weight.

1. The Tribunal is also satisfied that if the health waiver were not exercised it would likely negatively impact upon the Australian citizen children of the visa applicant and the review applicant, both directly, given that they are likely to enjoy a better standard of living in Australia, including in terms of education and health services, and indirectly as a result of the separation from important and familiar extended family members, the review applicant's family, and further, as a result of the likely negative impact of either relocation of the review applicant to Iran or continued separation of the review applicant and the children from the visa applicant.

1. The Tribunal is satisfied that if the health waiver were not exercised it would negatively impact  upon  the  Australian  citizen  children  of  the  visa  applicant  and  review applicant.

Although at hearing the review applicant's evidence was that she has not entertained the possibility of the visa not being granted, and lives in hope, it appears that if the health waiver were not exercised and therefore the visa was not granted, this would likely result in immediate family members living apart because it is not abundantly clear to the Tribunal that the review applicant and her children would necessarily move to Iran to be with the visa applicant. The Tribunal is not satisfied that the review applicant would not be able to migrate legally; however there may be practical barriers.

1. The Tribunal is also satisfied that the review applicant has significant family links to Australia and significant support from family and community groups which would also be available to the visa applicant. The Tribunal, based on the evidence before it, accepts that the visa applicant has occupational skills, qualifications, and employment prospects that render him highly employable in Australia in an in-demand occupation in Australia, notably the visa applicant has Bachelor and Master degrees in [a profession] from universities in Iran, and although there is some doubt as to whether those qualifications would be recognised in Australia, the Tribunal accepts that he has very valuable experience in [such] roles and is currently employed [in that field], and his prospects for further education if necessary, and employment in Australia, are good.

1. The Tribunal accepts that the review applicant, although not working at present as she has a [baby], also has considerable work experience and skills in Australia, as [an occupation] and prior to that in [a certain industry]. Further, the Tribunal is satisfied that the review applicant plays an important role as a carer, as recognised by Centrelink, of her elderly mother, also an Australian citizen. The Tribunal acknowledges that there will be a cost for inevitable future treatment in relation to the visa applicant's medical condition, as noted by the MOC. [Sentence deleted].

1. The Tribunal notes the medical evidence is that the condition is well-managed and is satisfied that the visa applicant and the review applicant have access to assets, other resources and likely income from employment, to significantly contribute to necessary costs, and the Tribunal has had regard to the evidence of their assets in Australia, including the review applicant's car, her home worth approximately [amount], encumbered by a reasonably modest mortgage, gold and jewellery and savings. The Tribunal accepts that the visa applicant’s and review applicant's earning capacity demonstrate they are capable of mitigating the cost of the visa applicant's illness.

1. The Tribunal is satisfied that, having had regard to all of these reasons collectively and the very detailed evidence and submissions provided to the Tribunal, which it is not necessary to repeat at length for the purposes of these reasons, that the grant of the visa is unlikely to result in an undue cost to the Australian community.

1. Further, based on the conclusion reached by the MOC, the Tribunal is also satisfied that granting the visa would be unlikely to result in undue prejudice to access to health care or community services of an Australian citizen or permanent resident.

1. The Tribunal therefore finds that the requirements of PIC 4007(2)(b) are met. Subject to the visa applicant satisfying all other requirements for the visa, the requirements of PIC 4007(1)(c) may be waived.

DECISION

1. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Spouse (Provisional)) visa:

• PIC 4007(1) for the purposes of cl.309.323 of Schedule 2 to the Regulations.

Susan Trotter Member