Mao (Migration)

[2023] AATA 343

Mao (Migration) [2023] AATA 343 (21 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Jialin Mao

VISA APPLICANT:  Ms Huamei Kuang

REPRESENTATIVE:  Mr Wilson Chan (MARN: 9473729)

CASE NUMBER:  1900196

DIBP REFERENCE(S):  BCC2017/3937169

MEMBER:Brian Camilleri

DATE:21 February 2023

PLACE OF DECISION:  Sydney

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 (Partner (Provisional)) visa:

·cl.309.225 of Schedule 2 to the Regulations

·cl.309.311 of Schedule 2 to the Regulations

·cl.100.221 of Schedule 2 to the Regulations

·cl.100.321 of Schedule 2 to the Regulations

Statement made on 21 February 2023 at 4:42pm

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – health requirement – Commonwealth Medical Officer health examination – employment prospects – applicant passed further Review Medical Officer’s examination – decision under review remitted    

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 100.221, 100.321, 309.225, 309.311; Public Interest Criteria 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 18 December 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 25 October 2017 on the basis of her relationship with her sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy Subclass cl.309.225 and 309.311 and Subclass 100 Partner subclauses 100.221 and 100.321 because the applicant could not meet the legal requirement in clause 309. 225 in Schedule 2 of the Regulations. Consequently, the Chief Migration Officer found the criteria for the grant of these Subclass 309 – Partner (Provisional) and/or Subclass 100 – Partner Visa were not met by the applicant.

4. The review applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant fulfils the public interest criteria (PIC) 4007 which requires that a person be assessed against the term of the “health requirement”. To meet the requirement, applicants must complete any requested immigration health examinations and must not be assessed by a Medical Officer of the Commonwealth as not meeting the health requirement.

7. The applicant, Ms KUANG Humei was born in Hubei Province, China. The applicant had not declared any previous marriages or de facto relationships. Ms Kuang was granted a Subclass 600 Visitor visa on 2 January 2018 and first travelled to Australia on 10 January 2018. The applicant has remained on shore.

8. The sponsor, Mr MAO, Jailin, is 54 years old, born in Shanghai, China, Mr MAO was granted a Subclass 104 Preferential Family visa in 1998 and has since acquired Australian citizenship.

9. According to the relationship statements, the applicant and sponsor first became acquainted with one another online, via their respective churches. The parties began communicating on 20 January 2017. The applicant invited the sponsor to meet her in China. The parties met on 14 April 2017 and became engaged on 16 April 2017. Mr Mao returned to Australia on 1 May 2017. In July 2017 the sponsor visited the applicant again in China. The parties registered a marriage in Wuhan, China on 31 July 2017.

10. Prior to the decision of the Chief Migration Officer, the applicant had on 2 February 2018 and 10 February 2018 undertaken medical examinations at a panel clinic in Australia, as requested by the Department. On 20 February 2018 the Commonwealth Medical Officer advised the Department of the applicant did not meet the health requirement of Schedule 4, specifically subparagraph PIC 4007 (1)(c) (ii) (A).

11. The Commonwealth Medical Officer gave the following reasons in confirming that the applicant did not satisfy the health criteria.

    The applicant is a 47-year-old person with:

    Asymptomatic chronic viral Hepatitis B
    Form and severity of the applicant’s condition: the applicant has asymptomatic Hepatitis B infection with active spiral replication. Provision of service to a hypothetical person in Australia with the same condition as the applicant and at the same severity, a hypothetical person in Australia with the same condition as the applicant and at the same severity would be likely to require long-term health care services, including but not limited to antiviral pharmaceuticals. The condition is likely to be permanent.

    I consider that a hypothetical person with this disease or condition, at the same severity as the applicant, would be likely to require health care and/or community services during the period specified above. These services would be likely to include:

    Medical services.
    Pharmaceuticals

    Provisions of these healthcare 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 service.

    In my opinion, the estimated cost to the Australian community of the services identified in the “catered for” is likely to be

    Medical services              AUD $ 57,000
    Pharmaceuticals              AUD $174,800
    Total cost   AUD $231,800

    Health Waiver

12. Under PIC 4007 (2) the Minister may waive the requirements of PIC 4007 (1) on certain conditions. On 22 May 2018 an officer of the Department, wrote to the applicant requesting the applicant to provide reasons as to why they believed the Minister should waive the health requirement set out in PIC 4007 (1) (c). It was noted that decisions as to waiver are made on a case-by-case basis and must take into account the level of care required, cost and level of prejudice to access. Subsequent to this request for information the applicant provided information and evidence in support of the health waiver which was received by the Department on 30 July 2018. The decision of the Chief Migration Officer lists those documents which were provided, and which were taken into account by him. The Chief Migration Officer on balance, was not satisfied that the potential costs identified were outweighed by mitigating factors and/or compassionate and compelling circumstances under PIC 4007 (2) (b).

13. In coming to this conclusion, the Chief Migration Officer considered the mitigation factors and potential costs to the Australian community. It was assessed that the assets of the applicant were not of significant value and less than 10% of the total estimated health costs identified

14. The delegate was not satisfied that the visa applicant had at the time provided her current details of employment or income and therefore did not give much weight to claims regarding the employment prospects.

15. Furthermore, the delegate determined that Ms KUANG was unlikely to obtain well paid employment in Australia to mitigate her medical costs and contribute to her medical costs.

16. The Chief Migration Officer rejected any weight being given to the applicant’s Australian health insurance policy and did not give any weight to the materials provided in evidence of the applicant being able to mitigate the estimated medical costs required and he held that the evidence of the parties did not substantiate their capacity to meet the applicant’s estimated medical cost to the Australian community.

17. The matter was submitted for review by a Review Medical Officer of the Commonwealth who responded in the following terms contained in a report by BUPA Medical Visa Services, dated 30 March 2022.

18. It states as follows:

    “FORM 884: OPINION OF A REVIEW MEDICAL OFFICER OF THE COMMONWEALTH

    THE APPLICANT MEETS THE HEALTH REQUIREMENT

    HAP Id  14828835

    Client Surname  KUANG

    Client Given Names  HUAMEI

    Birth Date  23/05/1970

    Sex  Female

    Visa Subclass  100

    The applicant has been assessed against Public Interest Criterion (PIC) 4007 and meets the health requirement for a permanent stay in Australia.

    My opinion is based on available medical and radiological reports.

    Medical Officer of the Commonwealth

    Position Number BUPA082

    A Medical Officer of the Commonwealth for the purposes of providing an opinion of whether prescribed health criteria under the Migration Regulations 1994 are met.

    BUPA Medical Services

19. The appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 309 visa.

20. The Chief Migration Officer considered the compelling and compassionate circumstances. It is not necessary for the Tribunal to review the assessment of the application of compelling completion circumstances at this stage in the light of the new medical evidence.

    Assessment of the main applicant against Primary Criteria for the Subclass 100 – Partner Visa

21. Following logically from the information available at the time the Chief Migration Officer noted that the legal requirement in clause 100.221 in Schedule 2 of the Regulations which required the applicant to hold or have held a Subclass 309 visa and concluded that on the information and evidence provided, the applicant did not and has not held a Subclass 309 visa and therefore did not meet primary criteria for the Subclass 100 Visa on the date he made his decision. Taking into consideration the report of the Review Medical Officer of the Commonwealth, the Tribunal finds the applicant meets the requirements of clause 100.221 in Schedule 2 of the Regulations

    Assessment of the Main Applicant against Secondary Criteria for either the Subclass 309 – Partner (Provisional) or Subclass 100 – Partner Visa.

22. Based on the information available to him at time, the Chief Migration Officer concluded that the secondary criteria for either the Subclass 309 or Subclass 100 visa had not been met by the applicant on the date he made his decision. Taking into consideration the report of the Review Medical Officer of the Commonwealth, the Tribunal finds the applicant meets the requirements of clause 100.221 and cl.100.321 in Schedule 2 of the Regulations

    Decision

23. 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 (Partner (Provisional)) visa:

    ·cl.309.225 of Schedule 2 to the Regulations

    ·cl.309.311 of Schedule 2 to the Regulations

    ·cl.100.221 of Schedule 2 to the Regulations

    ·cl.100.321 of Schedule 2 to the Regulations

    Brian Camilleri
    Member