2100971 (Migration)

[2024] AATA 335

2100971 (Migration) [2024] AATA 335 (17 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mrs Kim Uyen Kim (MARN: 1387806)

CASE NUMBER:  2100971

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Kira Raif

DATE:17 January 2024

PLACE OF DECISION:  Sydney

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(2)(b) for the purposes of cl 820.223 of Schedule 2 to the Regulations.

Statement made on 17 January 2024 at 2:37pm

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – applicant did not meet the health requirements – lengthy relationship of six years – significant family connections in Australia – applicant has social, emotional and family ties to Australia – cost of treatment is not significant – PIC 4007(1)(c) may be waived subject to the applicant satisfying all other requirements for the visa – decision under review remitted   

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 2.25A, Schedule 2, cl 820.223, Schedule 4, 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 Home Affairs on 14 January 2021 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 applicant is a national of Vietnam, born in [year]. He made the application for the visa on 11 July 2018. 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) because the health criteria in Public Interest Criterion (‘PIC’) 4007 of Schedule 4 to the Regulations were not met. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 17 January 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. 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, 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.

5. 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.

6. 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.

7. 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.

8. In determining whether a person meets PIC 4007(1)(a), (b) or (c), reg 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: reg 2.25A(3)

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

   The MOC opinion

9. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that  during the processing of the application, in September 2019, the applicant had undertaken a health examination. On 17 December 2019 a Commonwealth Medical Officer had formed the view that the applicant did not meet the health requirements in paragraph PIC 4007(1)(c)(ii)(A). The MOC found that

   The applicant has asymptomatic HIV infection and is likely to require medical services and pharmaceuticals with the estimated cost to the Australian community of $135,000.

10. There is evidence that the applicant does not meet the health requirements. The Tribunal finds that the MOC opinion is required.

11. During the processing of the primary application, the MOC formed the view that the applicant did not meet the health requirements. At the applicant’s request, the Tribunal arranged a further opinion of the MOC, based on the more current medical evidence. On 25 October 2023 the Tribunal received the new MOC opinion. The MOC found that the applicant did not meet the health requirements and that the estimated cost to the Australian community was approximately $117,000.

12. 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 applicant has not identified any concerns with the MOC opinion and none are apparent to the Tribunal. The Tribunal is satisfied that the MOC has applied the correct test and that the opinion is valid. The Tribunal finds, having regard to the MOC opinion, that the applicant does not satisfy PIC 4007(1)(c).

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

14. 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).

15. 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. Department policy provides guidance on factors that may be relevant to this, including: the need for, and availability of, a live organ donor; an ability to access private health treatment; close family, social, emotional and community ties to Australia; the impact on any Australian citizen minor children; occupational skills of the applicant or family members; and the potential contribution to Australia by the applicant or family members.

16. The delegate wrote to the applicant seeking his comments on the adverse information relating to the MOC opinion and in relation to the waiver. The applicant provided a number of submissions in response. The applicant provided evidence of his relationship with the sponsor, bank records and financial records addressing his ability to mitigate the cost (the delegate noted that the applicant and sponsor had minimal income and minimal savings), evidence of his contribution to the community, a number of statements and other materials.

17. In his declaration dated 7 January 2020 the applicant stated that he had been diagnosed HIV positive in August 2019 and his doctor advised him that the infection was mild and further recovery would be possible with medication and treatment. Since that time he had participated in retroviral treatment and responded positively. He was advised by a doctor in December 2019 that the level of HIV in his system had dropped substantially and his condition was better. His doctor expects he would make a full recovery and relapse was unlikely. The applicant stated that his treatment consisted of check-ups every two months and daily tablets costing $3200 a month. These are likely to be the only costs he will incur for the rest of his life. The applicant stated that he had never accessed social welfare system in Australia and had been working and will continue to have capacity to work. The applicant states that his health does not restrict his ability to work and he had previously worked in a [workplace] and as a [occupation]. The applicant states that it would be difficult for his wife to travel with him to Vietnam as she was born and raised in Australia and has her whole life and family here. The applicant refers to looking after his wife’s younger brother.

18. The applicant provided a further submission to the Tribunal on 6 October 2023, which included his taxation documents evidencing income, evidence of his relationship with the sponsor and a statement from a social worker who has expressed the view that the applicant may find it difficult to return to Vietnam and a requirement to do so may affect his relationship with the sponsor. 

19. The sponsor provided a declaration to the Tribunal sworn on 9 November 2023. The sponsor refers to a six year relationship, stating she and the visa applicant are compatible and happy together. She refers to the emotional, mental and financial support provided by the applicant and their strong connection. The sponsor refers to financial reliance on the visa applicant and their plans for the future. She states she was born in Australia and cannot live in Vietnam as she does not speak the language well and knows little about the culture. The sponsor refers to the presence of her family and friends in Australia. The applicant also presented a declaration from the sponsor’s mother who refers to the genuine and close relationship between the applicant and the sponsor. The applicant presented a number of bank records.

20. The applicant provided a declaration addressing the factors set out in the policy, as well as his current situation, education and employment opportunities.

21. The applicant refers to his income, stating that it has exceeded $40,000 a year in the past two years. The applicant states that he is responsible for all the payments and once his wife completes her degree in late 2023, she is expected to earn more. They have been able to save money and will have greater income and savings in the future.

22. The applicant refers to his relationship with the sponsor and the effect the visa refusal would have on her. The applicant states that life would be difficult for him and his wife in Vietnam.

23. In oral evidence the applicant told the Tribunal that since 2021 he has been employed on a permanent full-time basis at a [factory]. He earns about $1600 per fortnight after tax (the applicant presented his recent payslips). The Tribunal accepts that the applicant is gainfully employed, has a stable job, and is paying taxes.

24. The applicant told the Tribunal that he and his partner have savings of about $10,000 and they own a car. The applicant told the Tribunal that he lives with his wife’s family and has a close relationship with them. He states that they are supportive of the relationship and can provide financial support if needed, although there has been no need to date.

25. The applicant told the Tribunal that he does not have private health insurance as he does not see the need for it. In terms of treatment, the applicant stated that he takes one tablet a day and he is told by the doctors that the virus is under control and the count is as low as it could be. The applicant states that the medication costs about $350 a month and is fully subsidised, he does not have to pay for it. (The Tribunal notes that in his submission to the delegate the applicant suggested the cost of medication is over $3200 a month. The applicant said he did not know and had simply guessed since the medication is subsidised). The applicant told the Tribunal that he does not believe he will require additional treatment as the doctor told him he can lead a normal life and has normal life expectancy.

26. The applicant told the Tribunal that he has not explored the treatment opportunities in Vietnam, since he was diagnosed in Australia, and ‘does not know where to start’. The applicant told the Tribunal that his wife was born in Australia and her entire family are in Australia, so language would be an obstacle for her. Also, she may not get accustomed to the hot climate in Vietnam. [Ms A] told the Tribunal that she will be completing her [course] in 2024 and intends to get a job and establish life in Australia.

27. The applicant told the Tribunal that his mother in law has several medical conditions and he helps with the housework at home and he sometimes helps his mother in law with getting medication or looking after his wife’s younger brother. The applicant states that his wife has always lived with her mother and they do not want to be separated.

28. The applicant refers to the length of his residence in Australia and the close relationship he has with his wife. [Ms A] in her evidence to the Tribunal refers to the close relationship she has with the applicant and states that she is prone to depression and anxiety. [Ms A] states that without the applicant, she does not think she would continue with her studies but if they stay together, she can picture their future together, which would involve buying a property and having children.  

29. The applicant’s representative refers to the lengthy relationship of six years, stating that the couple have been supporting each other, particularly since the applicant’s diagnosis. The representative refers to the hardship and the physical and mental stress if the sponsor was required to relocate to Vietnam, and the effect on the sponsor’s family.

30. The Tribunal has had regard to the applicant’s circumstances and the factors set out in the Departmental policy.

31. There is no need for a live organ donor. The Tribunal accepts that the applicant has significant family connections in Australia though his partner, as he has been living with his wife’s family for a number of years. The Tribunal accepts that his wife’s family support the applicant and support his relationship with the sponsor. The Tribunal accepts that the applicant has social, emotional and family ties to Australia.

32. The applicant does not have health insurance but his evidence is that he did not obtain insurance because he did not see the need for it (rather than being denied access to health insurance). The Tribunal acknowledges that the applicant has been employed and contributes through the payment of taxes. However, the Tribunal has formed the view that the applicant has minimal capacity to contribute to the cost of treatment, noting that the applicant supports his partner financially and has minimal assets. Nevertheless, the Tribunal is mindful that  the costing has been revised down by the MOC since the initial assessment and the cost of treatment is not a very significant amount.

33. The Tribunal is not satisfied that the applicant has the occupational skills that would significantly contribute to Australia.

34. The Tribunal accepts that the applicant’s spouse relies on him emotionally and financially. The Tribunal is also prepared to accept that it would be difficult for her to relocate to Vietnam, for the reasons that were put forward by the applicant, noting that she has always lived in Australia, her entire family lives in Australia and that her comprehension of Vietnamese is limited. Thus, the Tribunal accepts that it may not be practicable for the couple to relocate to Vietnam and that doing so would cause hardship to the sponsor. 

35. Having regard to the totality of the circumstances, the Tribunal has formed the view 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) may be waived subject to the applicant satisfying all other requirements for the visa. The Tribunal has not made any assessment about the nature of the applicant’s relationship with the sponsor, as this was not the basis of the primary decision.

    Conclusion

36. 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

37. 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(2)(b) for the purposes of cl 820.223 of Schedule 2 to the Regulations.

    Kira Raif

    
    

    Senior Member