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

1. 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).

2. 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.

3. 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

4. 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.

5. 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.

6. 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.

7. 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.

8. In determining whether a person meets PIC 4007(1)(a), (b) or (c), reg 2.25A requires the Tribunal to seek the opinion of a Medical Officer of the Commonwealth (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 a MOC is required, the Tribunal must take it be correct: reg 2.25A(3)

   Are the applicants free from the relevant diseases or conditions (PIC 4007(1)(a), (b), (c))?

9. The Tribunal is satisfied that the MOC opinion is required.

10. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that the visa application was made in June 2016. The application included the primary visa applicant and four dependent children. It is noted that the visa applicants were required to undertake health examination and in October 2016 a Medical Officer of the Commonwealth (MOC) formed the view that Jesse Gallo Quirante did not meet the health requirements in PIC 4007. It is stated that Jesse has development delay of mild severity and is likely to require special education and disability support services, with an estimated cost to the Australian community of approximately one million dollars.

11. The Tribunal finds that the secondary applicants are dependent children of the primary applicant and are, therefore members of her family unit. The Tribunal finds that in accordance with s. 309.228, each of the children must meet PIC 4007.

12. As noted above, the MOC formed the view during the primary processing of the application that Jesse did not pass the health checks. The review applicant requested the Tribunal to arrange a new MOC assessment with respect to Jesse, noting that the old MOC opinion was completed five years ago. The Tribunal agreed to that request and made arrangements for the new MOC opinion to be obtained. On 25 March 2022 the Tribunal received advice from the Medical Officer of the Commonwealth that, based on updated medical records, it was determined that Jesse now meets the health criteria.

13. 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 public interest criterion has been applied, and the form or level of the condition suffered by the applicant, 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.

14. The Tribunal is satisfied that the opinion has been validly made. Accordingly, based on the opinion of the MOC, Jesse satisfies PIC 4007(1)(c ).

    Conclusion

15. 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

16. 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 Raif

    
    

    Senior Member