1907240 (Migration)

[2024] AATA 2111

1907240 (Migration) [2024] AATA 2111 (6 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Christopher Levingston

CASE NUMBER:  1907240

COUNTRY OF REFERENCE:                   Thailand

MEMBER:Donna Petrovich

DATE:6 May 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 (Spouse) visa:

·PIC 4007(1)(c)(ii)(A) for the purposes of cl 820.223(1)(a) of Schedule 2 to the Regulations.

·PIC 4007(2)(b)(i) for the purposes of cl 820.233(1)(a) of Schedule 2 to the Regulations

Statement made on 06 May 2024 at 9:57am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – health criteria – potential cost of treatment found by medical officer of commonwealth represents extreme case – applicant’s condition mild, and actual costs much lower and covered by Medicare – full-time work in physically demanding occupation – compassionate and compelling circumstances – same-sex relationship – length of relationship, registration, acceptance by families, friends and colleagues, and future plans – possibility of persecution and financial hardship in home country – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 820.223(1)(a), Schedule 4, criterion 4007(1)(c)(ii)(A), (2)(b)(i),

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 Home Affairs on 15 March 2019 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant (the applicant) applied for the visa on 30 June 2017. The delegate refused to grant the visa as the applicant did not satisfy cl 820.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). This is because the health criteria in Public Interest Criterion (‘PIC’) 4007 of Schedule 4 to the Regulations were not met.

3. It was also determined by the delegate that there was no basis to waive the health requirement as per cl 4007(2) of the Regulations. 

4. The applicant appeared before the Tribunal on 5 December 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, [named].  The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

5. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

   Background

6. The applicant is a [Age] year old Thai woman who works as [an Occupation 1].  She and her partner are saving a deposit to purchase her own [business].  She is supported by her partner (the sponsor) who is [an Occupation 2] with a successful career.  The sponsor has purchased a rental property.  She hopes to assist the applicant purchase and run a business in Sydney.  The applicant has saved $20,000 and the sponsor plans to leverage the equity in the rental property to start their planned business venture. 

7. The couple currently have a combined income of $200,000 per annum.

8. The couple have been in a long- term same sex relationship since they met in June 2016.  They have registered their relationship and have lived together continuously since June 2017.

9. The applicant and the sponsor have returned to Thailand.  They have introduced themselves as a couple to their respective parents who accept their same sex relationship.  They are fortunate in this regard particularly as cultural prejudice is commonplace in Thailand where persecution of gay and lesbian couples is prevalent.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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.

12. The applicant in this case the was assessed on the 12 February 2018 by the Commonwealth Medical Officer (MOC), who advised the applicant that she did not meet health requirements of schedule 4, specifically cl PIC 4007(1)(c) (ii)(A) of the Regulations.

13. The applicant was diagnosed with Moderate Thalassemia.  In the MOCs opinion the estimated potential cost involved with the applicant’s treatment of her conditions is $1,847,500.00 and prejudice to access has not been identified.

14. The Tribunal received evidence that the adverse finding was informed by the view that the applicant has “a non-transfusion -dependant Thalassemia, which is stable on deferiprone therapy”.  

15. The applicant explained to the Tribunal that she has a genetic disorder, affecting the shape of corpuscles that take up nutrients in the blood.  She explained that the condition did not affect her immediate family, other relatives had suffered from the condition, but that she had been unaware of this until her diagnosis. 

16. The applicant claims that she was diagnosed with Thalassemia when she was approximately [age] years of age but did not receive treatment until 2013.

17. The applicant told the Tribunal that she now takes a single drug identified on the PBS.  Up until know the applicant has not been required to pay for this drug.

18. The applicant takes 4 tablets per day, which is currently covered by Medicare under the PBS S100 scheme.  She receives her medication free of charge from [Hospital].

19. In 2022, the applicant commenced having blood transfusions and she has one transfusion per month. 

20. In relation to the monthly blood transfusions, the applicant is given one unit of blood each month which in Australia are free.  There is no additional cost to the community.  However, if there was a cost, there is a view that this could be considered offset by the sponsor’s own regular blood donations.  As the applicant has a Medicare card there are no other cost incurred by the applicant as Medicare currently covers the cost of her medication.

21. The Tribunal in considering the applicant’s circumstances finds that the costs to the community as identified in the MOC opinion are represented at the extreme end of the condition.

22. It is the finding of the Tribunal that the MOC opinion does not reflect the treatment costs for this individual (the applicant) or the cost to the Australian community.

23. Evidence has been presented to the Tribunal, that the estimated cost of treatment for the applicant can effectively be reduced to $960 annually on the personal import regime, as opposed to the PBS cost of $34,000 per annum. This proposal alleviates the cost of the applicant’s treatment on the taxpayer. 

24. Further, the couple are able to pay for the medical treatment as they are in a good financial position, as per the material supplied to the Tribunal substantiating their income.  The Tribunal places weight in favour of the applicant in this regard.  

25. The Tribunal received an extensive report from NSW Health Pathology, Institute of Haematology, [Hospital].  This report certifies that the applicant is a patient there and is being treated by the hospital’s Haematology clinic.

26. The report states that the applicant has been in treatment since 2013.  It further confirms her diagnosis of Thalassemia Intermedia based on Heterozygosity for Haemoglobin and Beta Thalassemia.  The report goes on to say that the applicant simply needs to be monitored while continuing Deferiprone, that her outlook is very good and that it is possible that the Iron Chelation may be able to be stopped or interrupted over time.  The report confirms that there is no evidence of any other complications.

27. Both the applicant and sponsor are in ongoing full- time work. 

28. The applicant works as [an Occupation 1] and earns approximately $70,000 per year.  The sponsor is a well- paid [Occupation 2].  The couple have a combined income of over $200,000 per year.

29. The Tribunal appreciates that the applicant is well enough to work full- time in an often physically demanding position.  This finding by the Tribunal alleviates further concerns about the applicant’s ability to work, physical health and fitness. 

30. The applicant has presented a case to the Tribunal that suggest that if her circumstances were to change, she is able to source non-PBS generic drugs available on the Capacity Personal Impact Scheme.  She would then be able to replace the PBS scheme drugs (taking 4 tablets per day) with generic medicines and continue with the required monthly transfusions.  This arrangement would reduce the total cost of 400 tablets to $80 AU.

31. The Tribunal is satisfied that this will assist the applicant in her treatment, if deemed necessary, and that the cost to the Australian community will be negated.  The Tribunal places some weight in favour of the applicant. 

    Compassionate and Compelling circumstances

32. The couple have been together since 2016.  They have cohabitated since June 2017, maintained their relationship continuously and have future plans.   They have demonstrated that their families accept them as a couple and that they share mutual friends.  They are accepted by work colleagues as a couple.

33. The sponsor in this case explained to the Tribunal that returning to Thailand as a same sex couple is not possible as they would face persecution there.  The sponsor claims that it is not possible to live in Thailand as an openly gay lesbian couple as they had been in Australia without experiencing persecution.  The Tribunal accepts this evidence and gives it some weight.

34. The couple also claim that they would be unable to secure employment with similar or commensurate pay in Thailand.  In particular, the sponsor would have to sacrifice her current career structure if placed in the circumstance of having to live in Thailand.  Such an outcome would have a detrimental effect on the sponsor, an Australian citizen. The Tribunal gives this some weight.

35. The Tribunal accepts that the couple would face persecution and be ostracised in Thailand because of their relationship. In addition, the couple would face financial hardship, with the sponsor’s career being severely impacted, if required to live in Thailand.  The Tribunal places weight in favour of the applicant.

36. The Tribunal accepts that this would impact on the couple.  It is the finding of the Tribunal that compassionate and compelling circumstances exist in this case.  The Tribunal places weight in favour of the applicant in this regard.       

37. 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.

38. Contrary to the finding of the delegate and the MOC opinion, the Tribunal is of the view based on the material supplied that the applicant’s medical care for her condition does not pose a significant cost to the Australian community in the areas of health care and community services as prescribed under PIC 4007(1)(c)(ii)(A) of the Regulations.  The Tribunal finds that the applicant meets PIC 4007(1)(c)(ii)(A) of the Regulations.

39. The evidence presented details the couple’s financial ability to pay for the applicant’s medicine, access to the Capacity Personal Impact Scheme to obtain generic drugs at a significantly reduced price, the unlikelihood of future medical complications, together with the applicant’s adherence to her treatment plan involving monitoring, prescribed medicines and monthly blood transfusions.  The applicant’s medical condition also appears to be mild as presented by the evidence, with no impact on her ability to engage in full time work in a physically demanding role as [an Occupation 1].

40. In these circumstances the Tribunal is satisfied that the applicant’s medical care does not involve a significant cost to the Australian community in the areas of health care and community services as referenced in PIC 4007(1)(c )(ii)(A) of the Regulations, and determines that this regulation is met.

41. Further, the Tribunal finds in light of the above, that there exist grounds to waive the health requirement as per cl 4007(2) of the Regulations. 

42. Cl 4007(2)(b)(i) is met allowing for the waiver of the health requirement in PIC 4007(1)(c) of the Regulations as the evidence presented satisfies the Tribunal that the granting of the visa to the applicant would not result in undue cost to the Australian community.  

    DECISION

43. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 (Spouse) visa:

    ·PIC 4007(1)(c)(ii)(A) for the purposes of cl 820.223(1)(a) of Schedule 2 to the Regulations.

    ·PIC 4007(2)(b)(i) for the purposes of cl 820.233(1)(a) of Schedule 2 to the Regulations

    Donna Petrovich

    
    

    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.