ABILLION (Migration)

[2021] AATA 5657

ABILLION (Migration) [2021] AATA 5657 (11 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Ma Annalyn ABILLION

CASE NUMBER:  1906318

HOME AFFAIRS REFERENCE(S):          BCC2018/674569

COUNTRY OF REFERENCE:                   Philippines

MEMBER:Steven Griffiths

DATE:11 October 2021

PLACE OF DECISION:  Adelaide

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)(a), (b) and (c) for the purposes of cl 820.223 of Schedule 2 to the Regulations.

Statement made on 11 October 2021 at 11:17am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – health criteria – medical assessment undertaken – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.25A; Schedule 2, cl 820.223; Schedule 4, PIC 4007

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 27 February 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 applied for the visa on 7 February 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 was not met.

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

   Consideration of claims and evidence

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, 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 did not satisfy the health requirement as required by PIC 4007 (1)(a), (b) and (c) and cl 820.223.

   Has the applicant complied with a request to undertake a medical assessment (PIC 4007(1)(a), (b) and (c)?

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.

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

9. 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 a MOC opinion required?

10. The Tribunal notes that the delegate requested the applicant to undertake the required health examinations that covers and focuses on a Chest X-ray examination and HIV test on 11 December 2018, and to do so through an approved migration medical services provider within 28 calendar days.

11. The applicant did not respond in a timely manner, despite being given adequate opportunity to fulfil the health requirements. Accordingly, on 27 February 2019, the delegate acting on behalf of the Minister proceeded to refuse the applicant a partner visa as the applicant did not satisfy 820.223(1)(a).

12. On 8 October 2021 an officer of the Tribunal accessed the Department's ICSE records in respect of the applicant. The screenshot taken of this record at this time evidences that on 5^th and 6^th October 2021 the applicant had undertaken the required health examinations and was recorded on 6 October 2021 as 'meets' the health requirement such that it was recorded as 'auto cleared' electronically.

13. The applicant applied to have the delegate’s refusal decision reviewed by the Tribunal on 18 March 2019. The applicant submitted a medical assessment by an approved medical provider that the applicant has completed a chest x-ray examination, HIV test and a medical examination. It is dated 6 October 2021. There are no signs of past or active tuberculosis or any other serious disease.

14. There is no information before the Tribunal that the applicant does not meet PIC 4007(1)(a), or (b). On the basis of these findings, a MOC opinion is not required.

15. On the basis of the evidence before the Tribunal, the applicant satisfies PIC 4007(1)(a) and (b).

16. With no evidence to the contrary, the Tribunal is further satisfied that the PIC 4007(1)(c) is met.

17. 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

18. 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)(a), (b) and (c) for the purposes of cl 820.223 of Schedule 2 to the Regulations.

    Steven Griffiths

    
    

    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.