Bull (Migration) - [2018] AATA 5391

Bull (Migration) [2018] AATA 5391 (8 November 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Andrew Lachlan Bull
VISA APPLICANTS:  Mrs Katherine Bull
Miss Julia Stone
CASE NUMBER:  1714004
DIBP REFERENCE(S):  BCC2016/366797
COUNTRY OF REFERENCE:                  United States of America
MEMBER:Hugh Sanderson
DATE:8 November 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the visa applicants Partner (Provisional) (Class UF) visas.
Statement made on 08 November 2018 at 11:19am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 – health criterion not met – medical conditions of visa applicants and review applicant – limited financial capacity – undue cost to Australian community – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 309.228, r 2.25A, Schedule 4, Public Interest Criterion 4007
CASES
Bui v MIMA (1999) 85 FCR 134
Ramlu v MIMIA [2005] FMCA 1735
Robinson v MIMIA (2005) 148 FCR 182
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of decisions made by a delegate of the Minister for Immigration on 17 May 2017 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).
The visa applicants applied for the visas on 25 January 2016. The delegate refused to grant the visa as the first named visa applicant (now referred to as the visa applicant) did not satisfy cl.309.228 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
The visa applicant is a citizen of the United States and is currently 38 years old. The second named applicant is her daughter who is currently 20 years old. The visa applicant and her daughter have never travelled to Australia. The review applicant is her husband who was born in New Zealand and is an Australian citizen. He is currently 38 years old.
The parties claimed that they first met each other in person in the United States on 5 May 2014 after having first met each other over the internet. They were married on 11 July 2014.
The review applicant’s movement records show that he has travelled out of Australia as follows:
·From 5 May 2014 to 10 September 2015; and
·From 19 June 2018 to 27 July 2018.
As part of the assessment for the grant of the visa, both the visa applicant and her daughter were required to undergo medical checks. A report from Dr Kanoff dated 2 September 2016 stated as follows:
Julia Stone is an 18-year-old woman with a history of intractable migraine and multiple sclerosis. She has other medical diagnoses that have included GE reflux and bipolar disorder. Also asthma and eczema.
The patient is currently receiving periodic BOTOX for intractable migraine. Mood disorder medications include Wellbutrin, Lamictal, and Kionopin.
The patient has received Copaxone for treatment of multiple…

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: [2018] AATA 5391
Decision Date: 8 November 2018

CaseChat Overview and Summary

This matter concerned an application for a Partner (Provisional) (Class UF) visa, subclass 309. The applicant's daughter was diagnosed with multiple sclerosis, and the Tribunal was required to determine whether the visa applicant met Public Interest Criterion (PIC) 4007, which relates to health requirements. The core of the dispute centred on whether the medical condition of the applicant's daughter would result in undue cost to the Australian community or prejudice access to health services for Australian citizens and permanent residents.

The legal issues before the Tribunal were whether the visa applicant and her family unit were free from diseases or conditions that would pose a threat to public health, endanger the Australian community, or require health or community services likely to result in significant cost to the Australian community or prejudice access to such services. Specifically, the Tribunal had to consider PIC 4007(1)(a), (b), and (c) of the Migration Regulations 1994. The Tribunal also had to determine if a Medical Officer of the Commonwealth (MOC) opinion was required and, if so, whether it had been correctly applied.

The Tribunal reasoned that as the applicant had applied for a permanent visa, the exemption provision in PIC 4007(1B) did not apply. The Tribunal was required to seek the opinion of a MOC unless specific exceptions applied, which they did not in this instance. The Tribunal noted that it must take the MOC's opinion as correct, provided the MOC applied the correct statutory test. In this case, the applicant's daughter's condition was found to be such that it would likely require health care and community services, and the provision of these services would likely result in significant cost to the Australian community. Consequently, the applicant had not satisfied the requirements of PIC 4007.

The Tribunal affirmed the decision not to grant the visa applicants Partner (Provisional) (Class UF) visas.

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 PIC 4007 as required by the criteria for the grant of the visa. PIC 4007, as it applies to this case, is extracted in the attachment to this decision. It requires the applicant and members of her family unit, 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 visa applicant’s daughter in this case was found to be suffering from multiple sclerosis. Is the applicant free from the relevant diseases or conditions (PIC 4007(1)(a), (b), (c))? PIC 4007(1)(a) and (b) require the visa 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. PIC 4007(1)(c) requires the visa 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 visa 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 applicants Partner (Provisional) (Class UF) visas.Hugh SandersonMemberATTACHMENTMigration 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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