Evangelio (Migration) - [2022] AATA 1109

Evangelio (Migration) [2022] AATA 1109 (7 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Haylene Ronquillo Evangelio
REPRESENTATIVE:  Ms Alice Wang (MARN: 0852751)
CASE NUMBER:  1817765
HOME AFFAIRS REFERENCE(S):          BCC2016/1631799
COUNTRY OF REFERENCE:                   Philippines
MEMBER:Russell Matheson
DATE:7 February 2022
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 820.224 (1A) of Schedule 2 to the Regulations.

Statement made on 07 February 2022 at 11:27am
CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – health criteria was not met – medical opinion is validly made – applicant’s non-migrating sons do not satisfy PIC 4007(1)(c) – three son’s health conditions – applicant has no intention of seeking to have her sons migrate to Australia – compassionate and compelling circumstances exist – discretion to waive the health requirement of PIC 4007 – decision under review remitted
LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cl 820.244, Public Interest Criterion (‘PIC’) 4007, Schedule 4
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 a decision made by a delegate of the Minister for Home Affairs on 31 May 2018 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (the Act).
The applicant, Mrs Haylene Ronquillo Evangelio is a national of the Philippines born in October 1980. She applied for the visa on 4 May 2016. The delegate refused to grant the visa as the applicant did not satisfy cl 820.224 (1A) 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 satisfied by the applicant’s non-migrating sons, Masters Kyle, Raymond, and Diego Evangelio. On 18 June 2018, the applicant applied to the Tribunal for review of the visa refusal decision, providing a copy of that decision with her application.
The Tribunal exercised its discretion to hold the hearing by videoconference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant appeared before the Tribunal on 2 February 2022 to give evidence and present arguments. The Tribunal also received oral evidence from…

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.

Continue reading Evangelio (Migration)

Details

AGLC: Evangelio (Migration) [2022] AATA 1109
Case: [2022] AATA 1109
Decision Date: 7 February 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Partner (Temporary) (Class UK) visa, subclass 820, made by Ms Evangelio. The dispute concerned whether Ms Evangelio and her non-migrating sons met the health requirements stipulated by Public Interest Criterion (PIC) 4007 of the Migration Regulations 1994. The Tribunal was required to determine if the medical opinions regarding the sons' intellectual impairments were valid and if the applicant's circumstances warranted a waiver of the health requirement.

The primary legal issue before the Tribunal was whether the applicant's three non-migrating sons satisfied PIC 4007(1)(c), which requires an applicant to be free from a disease or condition that would likely necessitate health or community services, resulting in significant cost or prejudice to access for Australian citizens or permanent residents. The Tribunal also considered whether compassionate and compelling circumstances existed to justify waiving this criterion, as permitted by PIC 4007(2). The Tribunal had to assess whether a Medical Officer of the Commonwealth opinion was required and, if so, whether it had been correctly applied by the assessing officer.

The Tribunal reasoned that while Medical Officer of the Commonwealth opinions indicated that the applicant's sons suffered from varying degrees of intellectual impairment, leading to projected significant costs to the Australian community, the applicant had provided evidence of compassionate and compelling circumstances. Specifically, the applicant stated she had no intention of having her sons migrate to Australia, maintained daily contact, and provided them with substantial financial support. The Tribunal found that, in light of these circumstances and the applicant's stated lack of intention to seek their migration, the granting of the visa would be unlikely to result in undue cost or prejudice to Australian citizens or permanent residents.

Consequently, the Tribunal determined that PIC 4007(1)(c) could be waived. The Tribunal remitted the application for the subclass 820 visa to the Minister for reconsideration, with a direction that the applicant met the criteria under PIC 4007(2)(b).

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In determining whether a person meets PIC 4007(1)(a), (b) or (c), reg 2.25A requires the Tribunal to seek the opinion of an 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 an MOC is required, the Tribunal must take it to be correct: reg 2.25A(3).CONSIDERATION OF CLAIMS AND EVIDENCEIs an MOC opinion required? There is no evidence before the Tribunal that it would be unreasonable to require the applicant’s non-migrating sons to undergo assessment in relation to PIC 4007. They did so on 28 January 2022. 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 PIC has been applied, and the form or level of the condition suffered by the applicant’s non-migrating son’s, 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. The MOC opinion of 28 January 2022, indicates the applicant’s non-migrating son Kyle Evangelio suffers from a ‘mild intellectual impairment’. The MOC opinion states that, in the assessor’s opinion, provision of health care and/or community services would be likely to result in a significant cost to the Australian community in the areas of health care and/or community services. That cost is identified in a related ‘Health Waiver Information’ document as likely to total $587,520. That document also notes the MOC’s opinion is that the granting of the visa would not be likely to prejudice the access of an Australian citizen or permanent resident to health care or community services. The applicant and sponsor in their oral evidence accepted the correctness of the MOC opinion with respect to the non-migrating dependent. The MOC opinion of 28 January 2022, indicates the applicant’s non-migrating son Raymond Evangelio suffers from a ‘moderate development delay’. The MOC opinion states that, in the assessor’s opinion, provision of health care and/or community services would be likely to result in a significant cost to the Australian community in the areas of health care and/or community services. That cost is identified in a related ‘Health Waiver Information’ document as likely to total $514,480. That document also notes the MOC’s opinion is that the granting of the visa would not be likely to prejudice the access of an Australian citizen or permanent resident to health care or community services. The applicant and sponsor in their oral evidence accepted the correctness of the MOC opinion with respect to the non-migrating dependent.

Decision

Reasons for decision

For the above reasons, the Tribunal is satisfied 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. Given the Tribunal’s findings, the appropriate course is to remit the application for the Subclass 820 visa to the Minister to consider the remaining criteria for the visa. 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.820.224(1A) of Schedule 2 to the Regulations.Russell MathesonMemberATTACHMENTMigration 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

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.ISSUES AND LAW The issue in this review is whether the visa applicant meets 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’s three non-migrating sons in this case were determined to suffer differing degrees of severity of intellectual impairment.Hearing At the beginning of the hearing the Tribunal informed the applicant pursuant to s 359AA it was going to put to her new information contained in the MOC opinion received by the Tribunal dated 28 January 2022 that it would consider to be the reason or part of the reason for affirming the decision. The Tribunal informed the applicant that she could respond to the information orally or in writing or that she could seek additional time to comment on or respond to the information. The Tribunal put the gist of the information to the applicant informing her that her three children did not meet the health requirement PIC 4007. The Tribunal informed the applicant that the MOC had determined that her three children had differing degrees of severity of intellectual impairments stating that:· Kyle Evangelio born 11 June 2002: suffered a moderate intellectual impairment that was likely to be permanent and a person with a condition at the same severity would likely require health care or community services long term. He would require special education services and commonwealth disability services. The total cost for these services would be $587,520.· Raymond Evangelio born 9 October 2005: suffered a moderate development delay that was likely to be permanent and a person with a condition at the same severity would likely require health care or community services long term. He would require special education services and commonwealth disability services. The total cost for these services would be $514,480.· Diego Evangelio born 15 January 2008: suffered a mild development delay that was likely to be permanent and a person with a condition at the same severity would likely require health care or community services long term. He would require special education services. The total cost for these services would be $250,920. The applicant responded orally that she speaks to her children on a daily basis and that she supports them financially sending them $300 to $400 weekly through her mother via Western Union money transfers. She further stated that her children do not want to come to Australia because they are not proficient in English and they enjoy living in the Philippines because that is where their family and friends are.Is the applicant free from the relevant diseases or conditions (PIC 4007(1)(a), (b), (c))?