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

1. 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).

2. 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

3. 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.

4. 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.

5. 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.

6. 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 sclerosis. Her last office appointment with me addressing that concern was September 11, 2015. Her last MRI imaging the same day. This showed improvement in underlying plaques.

   Julia is able to function independently. She does not use any community services. She has follow-up for her medications with neurology and psychiatry. She has also used verapamil for her headaches. She remains independent for all activities of daily living and requires no assistance in typical, normal day-to-day tasks.

   She is anticipated to require follow-up regarding headache disorder approximately every 3-6 months; MS disorder every 6-12 months, as long as she remains stable.

7. An assessment by the Medical Officer of the Commonwealth (MOC) dated 27 May 2016 found that the visa applicant’s daughter did not meet the health criteria in PIC 4007, specifically referring to her suffering from multiple sclerosis, which requires thrice weekly injections. The MOC estimated the cost of pharmaceuticals would be of $779,636, and the cost of medical services of $203,000, being a total of $982,636.

8. The visa applicant was invited to provide a response to the findings of the MOC. Various claims were made why the health criteria should be waived. This included the following:

   ·The family is committed to providing all the support necessary for the visa applicant’s daughter;

   ·The visa applicant’s daughter’s condition is stable and shows signs of improvement;

   ·Both the visa applicant and the review applicant had stable employment which would offset any medical expenses;

   ·The review applicant’s mother has qualifications as a nurse and would be able to provide assistance to the visa applicant’s daughter;

   ·The visa applicant is not be able to sponsor the review applicant to live in the United States as she does not have the financial capacity required under United States immigration law;

   ·The opportunities for the review applicant, the visa applicant and her daughter are greater in Australia than in the United States; and

   ·Although the visa applicant has her parents and two brothers who live in the United States, she only has continuing contact with her mother.

9. The delegate who considered the application was not satisfied that the health criteria should be waived and found that the visa applicant’s daughter did not satisfy PIC 4007. Accordingly, the delegate found the applicant did not meet the criteria in cl.309.228 and refused both visa applications.

   Information to the Tribunal

10. The applicant provided further material to the Tribunal including the following:

    ·Statements by the parties;

    ·Statements by members of the review applicant’s family;

    ·Medical reports in respect of the review applicant’s mother;

    ·Medical reports in respect of the visa applicant;

    ·Evidence of the review applicant’s employment; and

    ·Submissions from the review applicant’s agent.

11. The review applicant appeared before the Tribunal on 5 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and the review applicant’s mother. The review applicant was represented in relation to the review by his registered migration agent who attended the hearing.

12. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. 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))?

14. 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.

15. 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.

16. 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.

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

18. 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?

19. 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.

20. The MOC, applying the correct test, found that as the visa applicant’s daughter suffered from multiple sclerosis she did not meet the health criteria.

21. Accordingly, based on the opinion of the MOC, the applicant does not satisfy PIC 4007(1) (c).

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

22. 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: PIC 4007(2).

23. 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. Departmental policy guidance on the exercise of this discretion is contained in the Procedures Advice Manual (PAM3). Broadly speaking, these relate to: family links in Australia and the impact on family members; occupational skills of the applicant or family members; assets or factors that may mitigate the costs or prejudice to access to care or services involved; available support from family or community groups; potential contribution to Australia by the applicant or family members; the immigration history of the applicant; other compelling and compassionate circumstances including location of the applicant and family members; and any other relevant factors.

24. The financial circumstances of the review applicant and the visa applicant are poor. There is no evidence that either of them have any significant assets or savings which could be relied upon to offset any medical expenses of the visa applicant’s daughter. The review applicant is employed by Challenge Community Services. His net income averages less than $600 per fortnight. He also receives a Disability Support Pension of about $500 per fortnight, which varies based on the income he receives from his paid employment. As he receives only limited income as well as a pension, he has little excess income which would be available to offset any expenses of the visa applicant’s daughter. The tax that the review applicant pays on his income is significantly less than the amount he receives for his disability pension.

25. The visa applicant is not currently working and is in receipt of the equivalent of a disability pension in the United States. She has not been in paid employment since 2014 when she worked for less than a year in a retail position. Prior to that, her last employment was in 2001. Although it is hoped that she would be able to obtain employment in Australia if she is granted the visa, there is little indication that she would be able to obtain any employment that would result in income sufficient to offset any medical expenses of her daughter.

26. There is no information that other family members of the visa applicant or the review applicant would be in a position to offset any of the medical expenses of the visa applicant’s daughter. The review applicant’s mother is no longer working and is in receipt of a disability pension. She owns her home in Tamworth; however, in order to repay the mortgage on that home she was required to cash in almost all of her superannuation. There is no information that other members of the review applicant’s family in Australia would be able to provide any significant financial support for the parties or be able to offset the medical expenses of the visa applicant’s daughter. There is no information that the family of the visa applicant has in the past or would in the future be able to offset the medical expenses of the visa applicant’s daughter.

27. A significant proportion of the likely cost to the Australian community are the pharmaceuticals that the visa applicant’s daughter would be required to take for the rest of her life to manage her condition. Most of these medications are covered under the pharmaceutical benefits scheme and would be supplied to the visa applicant’s daughter at a significantly subsidised cost which would not be able to be offset by the visa applicant or the review applicant, regardless of their incomes. It is argued that the medication the visa applicant’s daughter currently takes is likely to have its patent expire and therefore will significantly decrease in cost. It is likely that further medication will be developed in the future which will provide more effective treatment for the visa applicant’s daughter. It is this medication that is likely to be prescribed for her. The Tribunal does not accept that an assumption that as patents for medication currently being prescribed will expire, that the assessment by the MOC of the likely costs for the visa applicant in accordance with the appropriate legal test should be reduced.

28. Both the review applicant and the visa applicant have been diagnosed as suffering from bipolar disorder. It is as a result of this diagnosis that they both receive disability pensions. Both the visa applicant and the review applicant receive continuing medical treatment from their respective doctors and psychologists. There is nothing to indicate they will not continue to receive this treatment in the future. The treating doctor of the visa applicant notes ‘that she has reached maximal medical improvement, continues to have moderate to severe symptoms of bipolar disorder with current episodes of depression’. The treating professionals of both the review applicant and the visa applicant believe that if the parties are unable to be reunited this would cause a negative impact on their progress.

29. To some extent, the fact that both the review applicant and visa applicant suffer from bipolar disorder and, as a result of their condition, are in receipt of disability pensions, indicates that they may have limited capacity to provide the support required by the visa applicant’s daughter in the future. The Tribunal notes, however, that the review applicant currently provides significant care for his mother, which would indicate that he should be able to provide some support for the visa applicant’s daughter in the future.

30. The Tribunal accepts that the review applicant and the visa applicant are in a genuine relationship. The fact that they are in a genuine relationship does not, however, provide of itself a circumstance which would lead to a finding that the granting of the visa would be unlikely to result in undue cost to the Australian community. If that were the case, then the requirement to satisfy the health criteria would be meaningless. In taking into account the fact that the parties are in a genuine relationship, the Tribunal has taken into account all the circumstances of that relationship.

31. The parties’ relationship commenced over the Internet and they first met in person when the review applicant travelled to the United States in May 2014. They were married on 11 July 2014. The review applicant applied for the right to reside in the United States on the basis of his marriage to the visa applicant. It is clear that the parties’ intention was initially to live together in the United States. This application was refused on the basis that the visa applicant’s income was insufficient to meet the sponsorship requirements for the grant of the equivalent of a Partner visa. There is nothing to indicate that the visa applicant’s circumstances have changed, or are likely to change in the future, so that she would be able to successfully sponsor the review applicant to live with her in the United States.

32. The review applicant is a citizen of New Zealand. There is nothing to indicate that it is likely that the review applicant would consider living in New Zealand to be able to sponsor the visa applicant and her daughter to live with him in New Zealand. As the review applicant’s family live in Australia, the Tribunal accepts that this would not be a viable proposition to either the review applicant or the visa applicant. Accordingly, if the health criterion is not waived, it is likely that the parties would not be able to live together.

33. After returning to Australia after his application to reside in America was refused in September 2015, the only time the parties have been together was when the review applicant travelled to the United States in June and July 2018. The Tribunal accepts that the reason the visa applicant has not travelled to Australia and the review applicant has not travelled more frequently to the United States is due to the fact that they could not afford the cost of the travel.

34. The obligation of the review applicant to provide care for his mother was raised as an issue when considering whether the granting of the visa would be unlikely to result in undue cost to the Australian community. The review applicant’s mother has suffered from various medical conditions since 2017. She is no longer in paid employment and is in receipt of a disability pension. The review applicant currently lives with his mother and provides significant support and assistance to her. The evidence provided at the hearing was that if the visa applicant were granted a visa to live in Australia the review applicant would move to alternative accommodation in Tamworth to live with the visa applicant and her daughter.

35. The fact that the review applicant is planning to move out of the home of his mother indicates that his mother is not so dependent upon him that she requires him to live with her. The review applicant’s brother and sister reside in Tamworth. Although they are both employed and are single parents the Tribunal finds that it is likely that they would provide continuing assistance to their mother, regardless of the circumstances of the review applicant. In any event, as explained above, if the health criterion is not waived it is unlikely that the review applicant and visa applicant would be able to live together in the United States.

36. The Tribunal has considered all the circumstances of the parties both individually and cumulatively when considering whether granting the visa would be unlikely to result in undue cost to the Australian community. The parties have little by way of financial resources or income earning capacity to offset any of the likely cost to the Australian community resulting from the visa applicant’s daughter’s medical condition. Their capacity to provide continuing physical and emotional support for her in the future is also compromised by the fact that they both suffer from bipolar disorder and other associated conditions. Their extended families are not in a position to provide any significant assistance so that it would be unlikely that undue cost to the Australian community would be incurred. The parties are in a genuine relationship and if the health criterion is not waived it is unlikely that the parties would be able to live together in the United States, as an application by the review applicant to live there has been previously refused. There would appear to be little other opportunity for the parties to live together. The parties have themselves been able to spend only limited time together since their marriage.

1. Although finely balanced, particularly taking into account the fact that the parties are unlikely to be able to find a country they are able to live in together, the Tribunal is not satisfied that the granting of the visa would be unlikely to result in undue cost to the Australian community.

2. For these reasons, the Tribunal is not satisfied that the granting of the visa would be unlikely to result in undue cost or undue prejudice within the terms of PIC 4007(2)(b). Therefore PIC 4007(1)(c) cannot be waived.

3. As the applicant has not satisfied the requirements of PIC 4007, the decision under review must be affirmed.

   DECISION

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

   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.