Kelly (Migration)

[2021] AATA 480

Kelly (Migration) [2021] AATA 480 (19 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Matthew Simon Anthony Kelly

VISA APPLICANT:  Mrs Merylyn Brillo Kelly

CASE NUMBER:  1813353

DIBP REFERENCE(S):  BCC2017/33682

COUNTRY OF REFERENCE:                   Philippines

MEMBER:Joseph Francis

DATE:19 January 2021

PLACE OF DECISION:  Perth

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

Statement made on 19 January 20201 at 2.20pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – health criteria – significant cost to the Australian community – Departmental policy changes – further MOC opinion obtained – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 309.225; Schedule 4, PIC 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 20 April 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. The visa applicant applied for the visa on 4 January 2017. The delegate refused to grant the visa as the visa 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.

3. The review applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this review is whether the visa applicant meets Public Interest Criterion (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.

6. As part of the visa application submitted on 04 January 2017, the visa applicant undertook a medical examination with the department’s migration medical services provider on 25 January 2017.  On 30 January 2017 a Medical officer of the Commonwealth (MOC) provided advice that that the visa applicant does not meet the health requirement of schedule 4, specifically PIC4007(1)(c)(ii)(a).

7. The MOC opinion dated 30 January 2017 is more than two years old.  It predates the policy changes made by the Department in relation to MOC assessing the health criteria.  In particular, the new policy:

   ·     Raised  the threshold level for ‘significant costs’ from AUD $40,000 to AUD $ 49,000 for all cases; and,

   ·     For permanent and provisional visa applicants who have a permanent condition, reduced the assessment period from lifelong costs to costs for a maximum of 10 years.

8. The effect of these changes is that an applicant who previously failed to meet the health criteria because of an adverse MOC opinion, in certain circumstances, may now meet the health criteria under a more favourable policy.

9. The Tribunal wrote to the review applicant on 13 November 2020 indicating that a further opinion from a Medical Officer of the Commonwealth should be obtained because the earlier opinion is not current.

10. On 12 December 2020 the review applicant submitted to the Tribunal the outcome of medical examination conducted for the visa applicant in the Philippines on 18 November 2020.

11. On 14 December 2020 the Tribunal requested the Review Medical Officer of the Commonwealth provide a further medical opinion for the visa applicant.

12. On 22 December 2020 the Review Medical Officer for the Commonwealth provided an updated opinion, indicating the visa applicant meets the health requirements subject to providing a signed undertaking in accordance with PIC4007(1)(d).

13. 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

14. 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)(d) the purposes of cl.309.225 of Schedule 2 to the Regulations.

    Joseph Francis
    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.