1923768 (Migration)

[2020] AATA 3910

1923768 (Migration) [2020] AATA 3910 (20 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1923768

COUNTRY OF REFERENCE:                   India

MEMBER:Hugh Sanderson

DATE:20 July 2020

PLACE OF DECISION:  Sydney

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.309.225 of Schedule 2 to the Regulations.

Statement made on 20 July 2020 at 11:15pm

CATCHWORDS
MIGRATION –Partner (Provisional) (Class UF) visa - subclass 309 – failed to meet health criteria – requirements in PIC 4007 were not met – further MOC opinion provided – visa applicant satisfied the health criteria– decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 2.25A, Schedule 2, cl 309.225, Schedule 4

CASES
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 5 July 2019 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 26 September 2016. 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.

   Background

3. The visa applicant is a citizen of India and is currently [age] years old. Her parents are deceased. She has a brother who continues to live in India. She first entered Australia [in] November 2010 holding a Tourist visa. She then applied for a Protection visa on the basis of being a lesbian and facing persecution in India. That application was refused by the Department and that decision was affirmed by the Tribunal on review on 9 May 2012. The decision of the Tribunal was delayed due to the postponement of the hearing on a number of occasions. On 23 April 2012 the visa applicant wrote to the Tribunal to state that she was now heterosexual and was in a married relationship with [Mr A]. The applicant failed to attend the hearing that had been listed in her matter and the Tribunal affirmed the decision to refuse her Protection visa application on 9 May 2012.

4. The visa applicant appealed the decision of the Tribunal to the Federal Magistrates Court (as it then was). That application was dismissed [in] February 2013. The visa applicant was granted a series of Bridging visas until she departed Australia [in] August 2015.

5. The applicant married Mr [Mr A] [in] March 2012. They were divorced [in] August 2016.

6. The review applicant is the sponsor of the visa applicant. He was born in India and is currently [age] years old. He is an Australian citizen. His parents are deceased. He has one sister who continues to live in India.

7. The parties claimed they first met each other [in] January 2013 and committed to a shared life together [in] May 2014. It was claimed that the visa applicant had stayed at her brother’s and other family members homes while living in India. The review applicant has travelled to India on a number of occasions to spend extended periods living with the visa applicant in India. The parties were married in India in 2016.

8. As part of the assessment to meet the criteria for the grant of the visa, the applicant was required to undergo an assessment by the Medical Officer of the Commonwealth (MOC). The MOC found that the visa applicant was suffering from [Medical condition 1]. It was assessed that this would be likely to result in a significant cost to the Australian community in the areas of health care and or community services. The MOC assessed the estimated cost to the Australian community at $66,000 and medical services at $202,400. This gave a total cost of $268,400. Based on this finding, the MOC concluded that the applicant did not meet the health criteria.

9. The Department had communication with the applicant’s agents in respect of providing further information regarding the assessment by the MOC and any claims of why the health criteria should be waived. No information was provided.

10. The delegate who considered the application noted that the MOC had found that the applicant did not meet PIC 4007(1)(c). The delegate found that as there was no information as to why that criteria should be waived the delegate found that the requirements in PIC 4007 were not met and accordingly the applicant did not meet the criteria in cl.309.225 and refused the application.

    Information to the Tribunal

11. The review applicant appeared before the Tribunal on 18 May 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali (India) and English languages. The review applicant was represented in relation to the review by his registered migration agent.

12. After the hearing a further assessment by the MOC was arranged with further information provided as to the visa applicant’s condition.

13. Departmental records show that the MOC found that, after considering the further material, the visa applicant meets the health criteria.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. 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 suffers from [Medical condition 1].

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

16. 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.

17. 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.

18. 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.

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

20. 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?

21. 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.

22. The MOC provided a report which took into account the relevant factors. The MOC found the applicant suffered from [Medical condition 1]. The MOC found that the likely cost to the Australian community for a hypothetical person with this condition was $268,400. The MOC concluded that the applicant did not meet the health criteria.

23. A further opinion from the MOC was obtained after a hearing before the Tribunal. The Departmental records show that the MOC concluded that the visa applicant satisfied the health criteria. Accordingly, based on the opinion of the MOC, the applicant satisfies PIC 4007(1).

24. 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

25. 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.309.225 of Schedule 2 to the Regulations.

    Hugh Sanderson

    
    

    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.