Li (Migration)

[2021] AATA 4857

Li (Migration) [2021] AATA 4857 (6 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jingrui Li

CASE NUMBER:  1903215

HOME AFFAIRS REFERENCE(S):          BCC2017/4759638

MEMBER:Nicholas McGowan

DATE:6 December 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets PIC 4007(2)(b) for the purposes of cl.820.223.
Statement made 6 December 2021 at 10:59am

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – health criterion waiver – medical condition – not likely to prejudice access to health care – undue cost to the Australian community – interests of the applicant’s Australian citizen sponsor – contribution to Australian society – decision under review remitted           

LEGISLATION

Migration Act 1958
Migration Regulations 1994, Schedule 2, cl 820.223; Schedule 4, Public Interest Criterion 4007

WRITTEN STATEMENT OF DECISION

1. This is an application for review of a refusal decision made by a delegate of the Minister for Immigration on 8 February 2019. 

2. Relevantly, the issue in this case is whether the applicant satisfies the public interest criteria (PIC) 4007(1)(c)(ii)(A) for the purposes of cl.820.223, and if not, whether the waiver under PIC 4007(2)(b) is applicable.

3. The opinion of the Medical Officer of the Commonwealth obtained on 28 June 2018 states an opinion that the applicant does not meet the health criteria in PIC 4007(1)(c)(ii)(A) in Schedule 4 to the Regulations.

4. The MOC stated that the applicant’s HIV infection is likely permanent and would be likely to require health care or community services during the period of a permanent stay in Australia. These services would be likely to include medical services and pharmaceuticals. The MOC stated that provision of these health 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.

5. The MOC opinion also stated that it would not be likely to prejudice access of an Australian citizen or permanent resident to health care or community services.

6. The Tribunal is satisfied that the MOC opinion identifies the applicant’s condition to which the public interest criteria have been applied and has ascertained the form or level of the condition suffered by the applicant and has applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition. The Tribunal is therefore bound to accept the MOC to be correct for the purposes of deciding whether the applicant satisfies the relevant health criterion, unless the requirements of PIC 4007(1)(c) are waived under PIC 4007(2).

7. The MOC states that the provision of health and community services would be likely to result in a significant cost to the Australian community. Whether or not the Tribunal considers the cost of health and community services identified in the MOC to be an ‘undue’ cost to the Australian community is a vexing question because undue is not defined in legislation. The Macquarie Dictionary defines undue as: ‘(1) unwarranted; excessive’, and ‘(2) not proper, fitting, or right; unjustified’. In assessing whether the granting of the visa in this case would be unlikely to result in ‘undue’ cost to the Australian community, the Tribunal has taken into consideration the full circumstances of the parties’.

8. The applicant and sponsor (who is now an Australian citizen) envisage a life together, and their relationship and commitment top each other is continuing. They anticipate establishing an accommodation business together, in addition to which the sponsor draws significant monetary return from his overseas investments.

9. The Tribunal has placed significant weight on unique circumstances of this case. The Tribunal places determinative weight on the interests of the applicant’s Australian citizen sponsor, and the broader desirability of permitting them to live permanently in the country of the sponsor’s citizenship. The Tribunal notes the sponsor and applicant will continue to contribute to Australian society through their productive endeavours.

10. Accordingly, and after taking all the facts of this case into account, the Tribunal finds that the granting of the visa would be unlikely to result in undue cost to the Australia community because of the contribution the applicant and his sponsor can continue to make to Australia. Accordingly, PIC 4007(2)(b)(i) and (ii) are met.

11. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.