1814684 (Migration)

[2021] AATA 836

1814684 (Migration) [2021] AATA 836 (11 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1814684

COUNTRY OF REFERENCE:                   Lebanon

MEMBER:Margie Bourke

DATE:11 January 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

Statement made on 11 January 2021 at 12:41pm

CATCHWORDS
MIGRATION –Partner (Provisional) (Class UF) visa – subclass 309 – health criteria in Public Interest Criterion (‘PIC’) 4007 was not met – whether the cost to the Australian community would be likely to result in an ‘undue’ cost – PIC 4007(1)(c) cannot be waived – no compelling circumstances or compassionate circumstances – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 2.25, Schedule 2, cl 309.225, Schedule 4, Public Interest Criterion (‘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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 2 May 2018 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 17 January 2017. The delegate refused to grant the visa 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 tribunal had regard to the obligations to provide a mechanism for review that is fair, just, quick, informal and economical. The tribunal also had regard to the nature of the review and the individual circumstances of the review applicant and the visa applicant.  This matter was scheduled for hearing at a time when the tribunal was conducting hearings by remote facilities due to the covid-19 pandemic. The tribunal was advised that the review applicant was residing overseas with the visa applicant, and therefore could not attend an in-person hearing.  In all these circumstances, the tribunal decided to conduct the hearing by way of video hearing.

4. The review applicant appeared with the visa applicant by video connection before the tribunal on 22 December 2020 to give evidence and present arguments. The tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages. The interpreter also attended the hearing by video.

5. For the following reasons, the tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 diagnosed with [a medical condition].

   Is the applicant free from the relevant diseases or conditions (PIC 4007(1)(a), (b), (c))?

7. 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.

8. 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.

9. 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.

10. As the applicant in this case has applied for a permanent visa, the exemption provision in PIC 4007(1B) does not apply.

11. 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 a MOC is required, the Tribunal must take it be correct: r.2.25A(3).

    Is a MOC opinion required?

12. 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.

13. The Department decision is based on the MOC opinion dated 13 June 2017.  At the invitation of the tribunal, the review applicant requested a further MOC opinion be obtained.  This decision is based on the current MOC opinion dated 30 November 2020.

14. I am satisfied that the MOC opinion dated 30 November 2020 is a valid opinion, and the MOC applied the correct test in forming the opinion.  The MOC identified the medical condition as [stable], and that the condition was likely to be permanent. The MOC applied the statutory criteria of the hypothetical person with the same condition at the same level of severity as the visa applicant, and concluded that the hypothetical person would be likely to require health care and community services including medical and pharmaceuticals.  The MOC concluded that provision of these services would be likely to result in significant cost to the Australian community, estimated at $187,500.

15. The MOC opinion concluded that the grant of the visa would not be likely to prejudice the access of an Australian citizen or permanent resident to health care or community services. The only issue is whether the grant of the visa would be likely to result in undue cost to Australian community in the areas of provision of health care and/or community services.

16. Accordingly, based on the opinion of the MOC, the visa applicant does not satisfy PIC 4007(1)(c). The MOC opinion is that the visa applicant does not meet PIC 4007(1)(c)(ii)(A).

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

17. 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).

18. 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’). 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.

19. I am satisfied that the review applicant and the visa applicant have a son, aged [number] months, who was born in Lebanon, and was baptised in Lebanon [in] January 2021.  The visa applicant gave evidence that she is currently pregnant and due to give birth to their second [child].  I am satisfied that the review applicant and visa applicant and their child currently reside together in Lebanon, and that the review applicant has been living in Lebanon with his wife and son for over fifteen months.  The evidence before me is that the visa applicant’s family reside in Lebanon, and she has no family links in Australia.  I accept her parents, her brother and her married sister who has three children, all reside in Lebanon. I have considered that the review applicant has resided in Lebanon for a significant period of time with the visa applicant and their son, and that the visa applicant’s family reside in Lebanon.

20. I accept the evidence of the review applicant that at the current time unemployment is high in Lebanon.  The evidence at the hearing from the visa applicant is that essential items can be obtained, but sometimes everyday items can be difficult to obtain.  I accept that the covid-19 pandemic has affected and impacted the lifestyle in Lebanon, as it has most countries in 2020, including Australia. I have considered these factors as relevant to my assessment of compelling reasons for the assessment of undue cost to the Australian community.  Overall, I consider the visa applicant’s circumstances residing in Lebanon currently with her husband and son, where her extended family also reside, do not amount to compassionate circumstances or compelling circumstances relevant to my assessment of whether the cost to the Australian community would be likely to result in an ‘undue’ cost.

21. The evidence before me is that the review applicant has many family connections in Australia.  I accept his evidence that he has three children from a previous relationship, but has no contact with them at the present time.  There is no evidence before me from these three children of the review applicant. There is no evidence before me that the relationship between review applicant, and the three children from his previous relationship, will be impacted by the grant of the visa.  I am not satisfied that the fact the review applicant has three children who reside in Australia, but with whom he has no contact amounts to compassionate circumstances or compelling circumstances relevant to my assessment of whether the cost to the Australian community would be likely to result in an ‘undue’ cost.

22. I accept the review applicant has a disabled brother aged [age] years who lives in specialised accommodation.  I accept the review applicant’s mother is nearly [age] years of age, she did not reside with the review applicant before he went to Lebanon over fifteen months ago, but I accept she lived close to where the review applicant has a house in [Suburb 1].  I have considered the statutory declaration of the review applicant’s mother.  In circumstances where the review applicant’s mother has two married daughters and twelve grandchildren residing in Australia, I am not satisfied that her wish for her the review applicant, her youngest son, to live in Australia with his wife the visa applicant, amounts to compelling circumstances or compassionate circumstances relevant to the assessment of whether the cost to the Australian community would be likely to result in an undue cost.   Further, based on the evidence before me, I am not satisfied that the impact for the remaining members of the review applicant’s extended family in Australia would amount to compassionate circumstances or compelling circumstances relevant to the assessment of whether the cost to the Australian community would be likely to result in an undue cost.

23. I accept the review applicant’s mother, disabled older brother, two married sisters and twelve nieces and nephews reside in Australia. I accept the evidence that the review applicant has resided in Lebanon for over fifteen months, away from his extended family and other interests in Australia.  I have considered the review applicant’s immediate family in Australia, include his elderly mother and disabled brother, and I accept the review applicant’s evidence that he misses his extended family and his lifestyle in Australia. I am not satisfied that these matters amount to compelling circumstances or compassionate circumstances relevant to the assessment of whether the cost to the Australian community would be likely to result in an ‘undue’ cost. 

24. I am satisfied that the visa applicant has a qualification in [Occupation 1], and had previously worked for a period of three months.  I accept the visa applicant’s evidence that she does not know if her qualification is recognised in Australia or whether she would be required to undertake further study to practice as an [Occupation 1]. I accept the evidence of the visa applicant that her intentions would be to work only part time and from home while her children are young. My assessment of the evidence of the visa applicant’s employment prospects are that her employment experience is limited, her qualification may require further study and certification, and she does not intend to work outside of the home or on a full time basis in the foreseeable future. This is relevant in my assessment of her ability to contribute to mitigation of the estimated costs of medical and other health care costs.

25. The review applicant provided evidence of his diverse qualifications and businesses he has operated.  The review applicant told the tribunal he had operated a [Business 1] and a [Business 2]. The review applicant gave evidence that he had closed his [Business 2] and given his [Business 1], to his nephew, who now owned and operated [Business 1]. The review applicant stated he intends to re-establish a [Business 1] when he returns to Australia, but can always rely on [his] qualifications to obtain work in other areas if necessary. I accept the review applicant’s evidence that he is not currently operating a business that contributes to Australian employment.

26. The applicant provided a written submission form his previous representative to the Department, dated 26 July 2017.  I have considered the submission but note many of the listed claims are not current at the time of this decision – including claims that the review applicant was operating businesses, that he did not want to move to Lebanon, and that the review applicant and visa applicant wished to start a family.  These claims do not apply at the time of this decision, and I accept the review applicant’s evidence and the visa applicant’s evidence that the review applicant is residing in Lebanon, that they have a son, and the review applicant is no longer operating his businesses.  In the 2017 submission, the representative referred to a medical report in relation to the review applicant.  There is no current medical report in relation to the review applicant.  I am not satisfied that the medical health of the review applicant is a compassionate circumstance or a compelling circumstance relevant to my assessment of whether the cost to the Australian community would be likely to result in an undue cost.

27. The review applicant stated he owned his home, subject to a mortgage and he owned two commercial [shops], which he had rented out for about 30 years. The review applicant stated he could mitigate costs to the Australian community because he has real estate assets and business qualifications to establish business/employment opportunities for himself.

28. The review applicant provided written submissions and oral evidence that he owned two premises [and] had obtained a rental income from them for approximately thirty years. I am not satisfied that the fact the properties are used for commercial purposes amounts to a compassionate circumstance or a compelling circumstance relevant to the assessment of whether the cost to the Australian community would be likely to result in an undue cost, as the business and employment generated by the rent of the investment properties is unlikely to be impacted by  the grant of the visa.

29. The review applicant stated he currently received income of $4200 per month from these two properties. The review applicant provided written and oral evidence that he owned a house in [Suburb 1], that is subject to a mortgage, and that he has rented out the granny flat on this property for $250 per week ($1000 per month) since 2016.  The review applicant provided this evidence to establish he is secure financially, that he has assets and an ongoing income, and can pay the medical costs of the visa applicant. The tribunal asked the review applicant about the tax return documents he provided to the Department which included the individual tax return and the tax assessment notice for the year 1 July 2016 to 30 June 2017.  In these documents, the review applicant declares a salary of $61,000, and some sundry items, but does not declare the rental earnings from the three properties, or any business income or expenses. 

30. The tribunal discussed with the review applicant that one significant method of mitigating the cost to the Australian community is by way of paying taxes.  It appeared that in the only year the review applicant had provided the Department, and consequently the tribunal with information of his tax return (2016 -2017), the review applicant had not declared the rental income in the amount of $60,000 (based on $5000 per month rent) to the Australian Tax Office. The tribunal discussed that the relevance of the review applicant’s ability to pay taxes was connected to his reliability in declaring his earnings and therefore paying the correct taxes.  The tribunal granted the review applicant until Friday 8 January 2021 to respond to this discussion in writing.  After the hearing the tribunal provided the review applicant with copies of the two tax documents he had provided to the Department, so there was no confusion about the documents or the contents of the documents.

31. The tribunal received a response from the review applicant on 7 January 2021, which included a letter from the review applicant’s accountant dated 4 January 2021 and the financial statement for the company [Company 1] for the financial year 2016 – 2017.  The response also included four photos of the review applicant’s and the visa applicant’s son’s baptism [in] January 2021.

32. The accountant letter recorded that he was the review applicant’s accountant.  It stated that the review applicant did not own the [properties], but the two properties were owned by a company, [Company 1] of which the review applicant is the sole office holder and shareholder. All profits made by the company in 2016 – 2017 were paid to the review applicant as director’s fees, and declared as such in the tax return. This is consistent with the submission dated 26 July 2017 provided to the Department by the review applicant’s previous representative, that set out the review applicant’s income was derived from director fees. The accountant attached a copy of the financial statement for [Company 1] 2016 – 2017.

1. The accountant further recorded that the bungalow at the review applicant’s home was not rented until after 1 July 2017, and therefore not recorded as income in the tax return for the year 2016 – 2017. The review applicant told the tribunal in his evidence that the bungalow had been rented out since 2016, but did not state the month the rental commenced.

2. I have considered the information provided to the tribunal by the review applicant in his post hearing responses. The tribunal is concerned about either the lack of knowledge displayed by the review applicant in relation to his financial affairs, or alternatively, the lack of clarity in the information provided to the tribunal by the review applicant about his financial affairs.  The post hearing information indicates the review applicant’s income was derived from director’s fees, and not directly from rent or from earnings from the review applicant’s [businesses]. This is relevant as the evidence of the review applicant’s assets, income and business is submitted to the tribunal as evidence of his ability to mitigate the costs of the health care and/or community services to the Australian community.

3. The review applicant did not state to the tribunal that he was the director of a company and earned his income through the commercial properties [as] a company director.  The financial statement for [Company 1] 2016 - 2017 records total rent for the year of $58,005.  The review applicant received director fees of $31,000. This amount equates to $2583 income per month from the rental properties.  The tribunal notes that nearly 50% of the rental earnings of the investment properties are accounted for as some form of expenses. On analysis it seems unlikely that nearly 50% of the rental earnings are recorded as consumed by expenses for the rental investment properties.  This is an issue for the tax office, and not the tribunal to determine.  However, it is relevant to the tribunal in this review that the review applicant stated he earned income of $4200 per month, and had earned similar monthly income from the rental properties over the thirty years (with appropriate increases over time), and the post hearing information provided by the review applicant is that his income from the rental properties is the significantly reduced amount declared as the annual director fees in his tax return which is $2583 per month.  The tribunal has concerns about the reliability of the information it has received in relation to the amount the review applicant earns from the investment properties, particularly in circumstances where the review applicant is recorded as the director, and did not give evidence that he was a director of the company and received his income as the director who owns the properties. The tribunal is troubled by the inconsistency in the review applicant’s written and oral evidence, in relation to the review applicant’s income and source of income. This is relevant to the review applicant’s ability to mitigate costs through payment of taxes. This is relevant to the review applicant’s and his wife the visa applicant’s ability to mitigate costs. It is relevant when assessing the cost to the Australian community in providing the health care and / or community services to the visa applicant.

4. I note that in 2016 – 2017 the financial statement records the review applicant was paid $31,000 in director fees from [Company 1].  In the tax return for 2016 - 2017  the review applicant declared his total salary on the income tax form was $61,005 from a source of “allowances, earnings, tips, director’s fees etc”.  Based on his tax return, the review applicant earned a further $30,005 from another salary source similar to his director fees for [Company 1]. The two bank statements provided for the review applicant’s now closed [Business 2] and his [Business 1] that is now owned and run by his nephew record that the two businesses were operated under an account name of [Company 2] Pty Ltd trading as  the two businesses. No evidence of any source of director fees has been provided to the tribunal.  No income is recorded as a business income in the tax return.

5. The accountant stated in his letter dated 4 January 2021 that when the review applicant returns to Australia he will resume his [Business 1] which will strengthen his financial ability to mitigate his costs, and he has the potential to increase his taxable income by $40,000 to $50,000 per annum. I interpret this statement as meaning the accountant states the review applicant will resume [Business 1], and that it earns $40,000 to $50,000 per annum taxable income.  There is no evidence other than the accountant’s statement that the review applicant has earned this income as a salary, manager or as director fees from [Business 1], or from a [related] business.

6. The review applicant stated in the hearing that his nephew now owned his previous [Business 1], and if he returned to Australia, he would hope to establish another [business]. His accountant writes the review applicant will ‘resume’ his business, and gives an estimate of his potential income as between $40,000 and $50,000. I do not accept that the accountant can refer to ‘resuming’ a business that is yet to be established.  I am not satisfied that the review applicant has given the tribunal and the accountant the same information in relation to his business and his future intentions.

7. I am not satisfied that the review applicant provided the tribunal with clear or reliable information about the source of his income. I am not satisfied that the tribunal has received reliable information about the review applicant’s intentions in relation to [Business 1], or establishing a new [Business 1].

8. Overall, I am not satisfied that the review applicant has been completely clear and open about his businesses, and his sources of income.  I am not satisfied that the tribunal can rely on the information before it in relation to evidence that the review applicant may mitigate the likely significant cost to the Australian community in the areas of health care and/or community services.

9. I have assessed all the claims that there are compelling circumstances or compassionate circumstances both individually and collectively.  I am not satisfied that there are compelling circumstances or compassionate circumstances that the cost to the Australian community would be unlikely to result in undue cost to the Australian community.

10. For these reasons, the tribunal is not 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 cannot be waived.

11. As the applicant has not satisfied the requirements of PIC 4007, the decision under review must be affirmed.

    DECISION

12. The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

    Margie Bourke

    
    

    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.