Quirante (Migration) - [2022] AATA 769

Quirante (Migration) [2022] AATA 769 (25 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Virgilio Jr Quirante
VISA APPLICANTS:  Mrs Mirafe Galo Quirante
Master Jomer Galo Quirante
Master Jesse Galo Quirante
Miss Mary Joy Galo Quirante
Miss Mary Jean Galo Quirante
REPRESENTATIVE:  Ms Rachael Adolphe (MARN: 1278986)
CASE NUMBER:  1824492
HOME AFFAIRS REFERENCE(S):          BCC2016/2134987
COUNTRY OF REFERENCE:                   Philippines
MEMBER:Kira Raif
DATE:25 March 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the third named visa applicant Jesse Galo meets the following criteria for a Subclass 309 (Spouse (Provisional)) visa:
·PIC 4007(1)(c) for the purposes of cl 309.228 of Schedule 2 to the Regulations.

Statement made on 25 March 2022 at 11:40am
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – health requirements – disease or condition requiring care or services resulting in significant cost to community – child secondary applicant with mild developmental delay likely to require special education and disability support services – new opinion of medical officer of commonwealth, based on updated medical records, that child meets health requirements taken as correct – decision made without hearing necessary – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.25A, Schedule 2, cl 309.228, Schedule 4, criterion 4007(1)(c)
CASES
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 decisions made by a delegate of the Minister for Home Affairs on 11 August 2018 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicants are nationals of the Philippines. They applied for the visas on 22 June 2016. The delegate refused to grant the visa on the basis that cl 309.228 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) was not met because one of the dependent applicants, Jesse Galo, did not meet the health criteria in Public Interest Criterion (‘PIC’) 4007 of Schedule 4 to the Regulations. The sponsor (the review applicant) seeks review of the delegate’s decision.
No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Relevant law
The issue in this review is whether the visa applicants meet 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. This last requirement may be waived in certain circumstances.
Clauses…

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 Quirante (Migration)

Details

AGLC: Quirante (Migration) [2022] AATA 769
Case: [2022] AATA 769
Decision Date: 25 March 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Partner (Provisional) (Class UF) visa, specifically a Subclass 309 (Spouse (Provisional)) visa. The dispute concerned whether a child, a secondary applicant for the visa, met the health requirements, particularly concerning the potential for significant cost to the community due to a disease or condition requiring care or services. The applicant had a mild developmental delay, which was assessed as likely to require special education and disability support services.

The Tribunal was required to determine if the child met the health criteria as stipulated in the Migration Regulations. Specifically, the issue revolved around paragraph 4007(1)(c) of Schedule 2 to the Regulations, which relates to diseases or conditions that might result in significant costs to the Australian community. The Tribunal also had to consider a new opinion from a Medical Officer of the Commonwealth, which, based on updated medical records, concluded that the child met the health requirements.

The Tribunal reasoned that the new opinion from the Medical Officer of the Commonwealth, which stated the child met the health requirements, should be taken as correct. It found that the decision to refuse the visa on health grounds had been made without a necessary hearing. Consequently, the Tribunal remitted the application for reconsideration by the Minister, directing that the third visa applicant, Jesse Galo, meets the health criteria under PIC 4007(1)(c) for the purposes of clause 309.228 of Schedule 2 to the Regulations. The Tribunal's order was to remit the application for Partner (Provisional) (Class UF) visas for reconsideration.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 The Tribunal remits the application for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the third named visa applicant Jesse Galo meets the following criteria for a Subclass 309 (Spouse (Provisional)) visa:·PIC 4007(1)(c ) for the purposes of cl 309.228 of Schedule 2 to the Regulations.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

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