Ellert (Migration)

[2020] AATA 5417

Ellert (Migration) [2020] AATA 5417 (20 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Sarah-Lee Ellert

VISA APPLICANT:  Mr Netanel Maor Meisels

CASE NUMBER:  1901168

DIBP REFERENCE(S):  BCC2018/1831489

COUNTRY OF REFERENCE:                   Israel

MEMBER:Justine Clarke

DATE:20 October 2020

PLACE OF DECISION:  Melbourne

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)(c) for the purposes of cl.309.225 of Schedule 2 to the Regulations.

Statement made on 20 October 2020 at 4:20pm

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – health criteria – updated Medical Officer of the Commonwealth opinion – decision under review remitted  

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 309.225; Schedule 4, Public Interest Criterion 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 Immigration on 19 November 2018 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. On 26 April 2018, the visa applicant applied for the visa. The review applicant sponsored the application for the visa.

3. The applicant provided the Tribunal with a copy of the delegate’s decision. The delegate refused to grant the visa on the basis that the 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. The primary decision contains an extract of cl.309.225 and PIC 4007 is extracted in the attachment to the current decision. The delegate’s decision states that a Medical Officer of the Commonwealth (MOC) had advised that the visa applicant did not meet the health requirement in PIC 4007(1)(c)(ii)(A). The delegate considered the request to waive the requirements set out in PIC 4007(1)(c)—pursuant to PIC 4007(2)—but found that the potential costs identified were not outweighed by mitigating factors and/or compassionate and compelling circumstances and so did not waive the health requirement set out in PIC 4007(1)(c).

4. On 17 January 2019, the review applicant applied to the Tribunal for review of the primary decision. The review applicant was represented in relation to the review by her registered migration agent.

5. On 3 July 2020, the Tribunal wrote to the review applicant, by way of her representative, to invite her to request a further opinion from a MOC in respect of the visa applicant, as the Tribunal was of the view that the MOC opinion referred to in the primary decision was no longer current. 

6. Subsequently, the review applicant accepted this invitation and the Tribunal forwarded the request for an opinion and relevant information to the MOC.

7. On 2 September 2020, the MOC made a further opinion, based on available medical and radiological reports. The MOC stated that they were of the opinion that the visa applicant meets the health requirement for a permanent stay in Australia.

8. Having reviewed the material before it, the Tribunal formed the view that a hearing was not needed. The Tribunal determined that it was able to find in favour of the review applicant based on the material before it, pursuant to s.360(2)(a) of the Act.

9. Based on the opinion of the MOC, at the time of this decision, the visa applicant satisfies PIC 4007(1)(c) for the purpose of cl.309.225.

10. 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

11. 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)(c) for the purposes of cl.309.225 of Schedule 2 to the Regulations.

    Justine Clarke

    
    

    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.