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

1. 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).

2. 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.

3. 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.

4. The applicant appeared before the Tribunal on 2 February 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, the sponsor’s daughter, and mother.

5. Prior to the hearing the applicant requested that her children be afforded the opportunity to seek a further opinion of a Medical Officer of the Commonwealth (MOC). On 21 January 2022 the applicant lodged the application for further MOC opinions for her three children with payment. The previous MOC opinions and medical reports for the children were also forwarded to Bupa to obtain the MOC opinion. On 28 January 2022 the Tribunal received the MOC opinions for the applicant’s three non-migrating children stating that they did not meet the health requirement PIC 4007.

6. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

   ISSUES AND LAW

8. 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

9. 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.

10. 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.

11. 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))?

12. 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.

13. 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.

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

15. 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 EVIDENCE

    Is an MOC opinion required?

16. 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.

17. 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.

18. 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.

19. The MOC opinion of 28 January 2022, indicates the applicant’s non-migrating son Diego Evangelio suffers from a ‘mild 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 $250,920. 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.

20. The Tribunal is satisfied the MOC opinions are current in the circumstances of this case, particularly given its findings that the applicant’s three sons conditions are broadly consistent with material submitted on their behalf.

21. The Tribunal has had regard to the Federal Court decisions in Robinson v MIMIA [2005] FCA 1626 and Ramlu v MIMIA [2005] FMCA 1735 and is satisfied that the MOC did not apply the wrong test in this matter. Specifically, the Tribunal is satisfied that the MOC opinion identifies the applicant’s non-migrating sons’ conditions to which the PIC have been applied, has ascertained the form or level of the conditions suffered by them and has applied the statutory criteria by reference to hypothetical persons who suffer from that form or level of the conditions suffered by them and has applied the statutory criteria by reference to hypothetical persons who suffer from that form or level of the condition. The Tribunal is therefore bound to accept the final assessment of the MOC to be correct for the purposes of deciding whether the applicant’s non-migrating son satisfies the relevant health criterion unless the Tribunal waives the requirements of PIC 4007(1)(c).

22. Accordingly, based on the opinion of the MOC, the applicant’s non-migrating sons do not satisfy PIC 4007(1)(c).  

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

23. 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: 4007(2).

24. 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. Department policy provides guidance on factors that may be relevant to this, including: the need for, and availability of, a live organ donor; an ability to access private health treatment; close family, social, emotional and community ties to Australia; the impact on any Australian citizen minor children; occupational skills of the applicant or family members; and the potential contribution to Australia by the applicant or family members.

25. The applicant gave oral evidence indicating that she has no intention of seeking to have her three sons, Kyle, Raymond, and Diego migrate to Australia. She outlined that Kyle is no longer dependent and he is working full time in the Philippines and supports himself. She further stated that her three sons are well cared for in the Philippines, residing with other family members in a secure environment. They would be unhappy to leave their current situation in the Philippines given the supportive environment they currently enjoy with family and friends. The applicant’s preference is for her non-migrating dependent sons to remain living in that country whilst she sends remittance income to support their care. She contends that there is no cost to the Australian community arising from her three son’s health conditions because they will never migrate to this country.

26. The sponsor gave oral evidence that was consistent with that of the applicant. He confirmed there were no plans to have the applicant’s non-migrating dependents move to Australia. The sponsor outlined the support structure for these children in the Philippines in a manner congruent with the applicant’s evidence on the topic. He submitted there will be no cost to the Australian community arising from the children’s health conditions. The sponsor and the applicant will continue to financially support the children in the Philippines where they are located in  secure environments with family members.

27. The applicant is working two part-time jobs at present, working while supervised in the disability services and at a local café earning approximately $50,000 per annum. The applicant stated that she has not been able to complete her courses in disability/aged care services due to the COVID-19 pandemic and will complete her courses at a later date. The Tribunal notes that there is a shortage of disability/aged care workers during the pandemic particularly in regional areas and the applicant is willing to upskill and these skills will be beneficial to the Australian community. She has not drawn upon any Australian Government benefits. She supports the sponsor at home and assists him with caring for his father who has dementia and is prone to injury, often falling. The sponsor does not want to place his father in a nursing home and is reliant on the applicant for assistance when caring for his elderly parents. The sponsor is emotionally attached to the applicant and derives significant happiness from his relationship with her. He requested that the Tribunal waive the health requirements in the applicant’s case given the compassionate circumstances involved and as there will be no cost to the Australian community arising from the non-migrating sons’ health conditions. The applicant advised that the sponsor works as a plumber earning approximately $60,000 to $90,000 a year and he owns a block of land valued at $250,000 and they are preparing to lodge a development application to build their own home. The parties have made each other the beneficiary of each other’s superannuation. The sponsor and applicant have reasonable financial means. The applicant seeks a waiver of the health criteria given that her three sons will not seek to migrate to Australia, there will be no cost to the Australian community arising from their conditions, compassionate circumstances exist in relation to assisting the sponsor’s care for his father who has dementia and both she and the sponsor are financially self-sufficient and make positive contributions to the Australian community. 

28. The applicant and sponsor claimed that they would suffer financial hardship if they were forced to live in the Philippines and it is unlikely that they would find employment there. The sponsor’s evidence is that he is currently working as a plumber and his trade is in high demand in Australia and the imbalance between demand and supply of plumbing services in the building/construction industry is driving wages even higher. The sponsor provided documentary evidence (JobOutlook) that the average salary for a plumber in the Philippines is 172,351 pesos per year which is equivalent to AUD4,948.63 per annum; whilst the average salary in Australia is AUD1,457 per week, which is equivalent to AUD75,816 per annum. The applicant said that she is currently earning $50,000 per year and financially supports her children and mother in the Philippines for their daily living expenses and education. The sponsor gave evidence that he has a daughter that he finally supports in Australia from his previous relationship. He provides $40 per week child support to his previous partner and that arrangement is informal. The parties stated that they would not be able to continue to support their children in Australia and the Philippines to the degree that do at present and that would have a detrimental impact on their quality of life and education. The Tribunal accepts that there would be a high degree financial hardship incurred by all concerned and that would impact on their health and wellbeing.    

29. The parties provided evidence that they have a biological son, Jamie born 12 February 2012 in the Philippines who was granted Australian citizenship 21 March 2018. They provided a copy of the birth certificate indicating that they are the parents. The parties were married on 21 March 2016 and have been living together in Australia for the past seven years.

1. The Tribunal is of the view that separating parents from their children during an early developmental phase would be an undesirable outcome which would impact the health and future outcomes for a child. These include the bond that children develop with their parents, particularly as they develop at a young age which is fundamental to their flourishing and children without secure parental bonds are more likely to have behaviour and literacy problems. The parties gave evidence that their biological son only speaks English in school and has been attending pre-school and primary school in Australia for the past eight years and he would have adjustment problems in the Philippines, and this would have an impact on his learning capacity and future development. The sponsor’s daughter stated that she has a close relationship with her only sibling and the applicant and there would be a huge emotional impact upon her and her grandparents if they were separated from the applicant and Jamie. The applicant, sponsor and their biological son are currently living with the sponsor’s parents at Mossy Point. The evidence given by the applicant, sponsor and daughter was also corroborated by the sponsor’s mother who also gave evidence at the hearing. Following careful consideration of the evidence, individually and wholistically, the Tribunal is satisfied that compassionate and compelling circumstances exist in the present matter such as to warrant exercise of the discretion to waive the health requirement of PIC 4007.

   Conclusion regarding the waiver of the health requirement

2. 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

3. 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 Matheson

   
   

   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.