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

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

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 836
Decision Date: 11 January 2021

CaseChat Overview and Summary

This matter concerned a review of a decision not to grant a Partner (Provisional) (Class UF) visa to the applicant. The central issue before the Tribunal was whether the applicant met Public Interest Criterion (PIC) 4007, which requires applicants to be free from certain diseases or conditions that could impact the Australian community. The applicant had been diagnosed with a specific medical condition, and the Tribunal had to determine if this condition prevented them from meeting the requirements of PIC 4007.

The Tribunal was required to consider whether the applicant was free from tuberculosis, a threat to public health, or a danger to the Australian community, as stipulated in PIC 4007(1)(a) and (b). Crucially, the Tribunal also had to assess PIC 4007(1)(c), which concerns diseases or conditions likely to require significant health or community services, potentially resulting in undue cost to the Australian community or prejudice to access for Australian citizens and permanent residents. The Tribunal noted that for permanent visa applications, the exemptions provided for temporary visas under PIC 4007(1B) did not apply, and that the waiver provision in PIC 4007(2) could only be invoked if there were no compelling or compassionate circumstances.

In its reasoning, the Tribunal highlighted that for permanent visa applications, a Medical Officer of the Commonwealth (MOC) opinion was required unless specific exceptions applied, and that such an opinion, once obtained, must be taken as correct, provided the MOC applied the correct statutory test. The Tribunal found that the applicant's medical condition meant that a MOC opinion was necessary. Ultimately, the Tribunal concluded that the applicant had not satisfied the requirements of PIC 4007, and therefore, the decision under review to refuse the visa had to be affirmed.

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 decision under review should be affirmed.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 diagnosed with [a medical condition].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 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 a MOC is required, the Tribunal must take it be correct: r.2.25A(3).Is a MOC opinion required? 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.

Decision

Reasons for decision

As the applicant has not satisfied the requirements of PIC 4007, the decision under review must be affirmed.DECISION The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.Margie BourkeMemberATTACHMENTMigration 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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