SHI (Migration)

[2019] AATA 3833

SHI (Migration) [2019] AATA 3833 (13 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Haixi SHI

VISA APPLICANTS:  Ms WENQIN SHI
Mr XIANGYAO SHI

CASE NUMBER:  1706999

DIBP REFERENCE(S):  BCC2014/2616457

COUNTRY OF REFERENCE:                  China

MEMBER:Russell Matheson

DATE:13 March 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicants Partner (Provisional) (Class UF) visas.

Statement made on 13 March 2019 at 8:15am

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – health criteria – medical assessments – requiring health care or community services – significant cost to the Australian community – improvement in the visa applicant’s health – decision under review affirmed       

LEGISLATION

Migration Act 1958, ss 65, 359, 360, 363
Migration Regulations 1994, Schedule 2, cls 309.225; Schedule 4 Public Interest Criteria 4007, r 2.25

CASES

Bui v MIMA (1999) 85 FCR 134
Ramlu v MIMIA [2005] FMCA 1735
Robinson v MIMIA (2005) 148 FCR 182

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 Immigration on 30 March 2017 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 7 October 2014. The delegate refused to grant the visa as the first named visa applicant (now referred to as the 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 (sponsor) appeared before the Tribunal on 3 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and the review applicant’s brother Haisheng SHI. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   BACKGROUND

6. The applicant, Wenqin SHI is a 37-year-old female originally from Fujian province, China. The applicant has not declared any previous relationships. She declared that she has travelled to Japan a few times and was deported from Japan in 2005, but she has never been to Australia previously.

7. The sponsor Mr SHI Haixi is a 37 year old male Australian permanent resident originally from Fujian province and currently residing in Sydney, Australia. The sponsor migrated to Australia under a Subclass 115 Remaining Relative visa in 2010. The sponsor has not declared any previous relationships.

8. According to the parties’ relationship statements, the parties first met during their middle schooling in Longtian, Fujian Province. After their graduation, the applicant went to Japan and they lost contact. The sponsor moved to Australia in 2010. On 28 January 2013, the sponsor returned to Fuqing and bumped into the applicant at a local bakery a few days after he arrived. They exchanged phone numbers and stayed in contact with each other. The sponsor returned to China on 25 July 2013 and met with the applicant again. The sponsor proposed to the applicant in Xiamen during his two-month visit and she accepted his proposal. The sponsor returned to China on 23 January 2014 and the parties registered their marriage on 29 January 2014. A wedding banquet was held on 18 February 2014 at Xinyuan Restaurant where the parties celebrated their marriage with their families and friends. The applicant gave birth to the parties’ son SHI Xiangyao in China on 29 September 2016.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The Tribunal has taken into consideration all the evidence in the Department of Immigration and Border Protection’s case files and the Tribunal’s case file and the evidence at the Tribunal hearing.

   ISSUE

10. The issue in this review is whether the applicant meets PIC 4007 as required by the criteria for the grant of the visa. PIC 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. The applicant in this case failed to satisfy PIC 4007(1)(c)(ii)(A).

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

11. 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.

12. 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.

13. 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.

14. In this case the temporary visa the applicant is seeking is specified in Legislative Instrument IMMI 12/025. As such health care and community services listed in the instrument IMMI 11/073 are not excluded from consideration.

15. In determining whether a person meets PIC 4007(1)(a), (b) or (c), r.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: r.2.25A(3).

    Is a MOC opinion required?

16. On the evidence before the Tribunal, a MOC opinion is required.  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.

17. [In] November 2016, the applicant undertook a medical examination at a panel clinic in Fujian province, China as requested by the Department. On 7 December 2016, the MOC advised the Department that it considered the visa applicant was a person to whom PIC 4007(1)(c) applied on the basis that she has [a specified medical condition]. There is laboratory evidence of ongoing [related symptoms and] injury.  With regard to the provisions of services to a hypothetical person with the applicant’s condition, the MOC noted: It is likely that a hypothetical person with a condition of this form and severity, would be likely to require long-term specialist health care services, including but not limited to [specified] pharmaceuticals, and that this condition is likely to be permanent. The MOC considered that a hypothetical person with this disease or condition, at the same severity as the applicant, would be likely to require health care or community services during the period specified.

18. 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. The MOC based the opinion on available medical examination undertaken by the visa applicant at a panel clinic in Fujian province, China [in] November 2016.

19. The Tribunal is therefore bound to accept the final assessment of the MOC to be correct for the purposes of deciding whether the visa applicant satisfies the relevant health criterion, unless the requirements of PIC 4007(1)(c) are waived under PIC 4007(2).

20. Accordingly, based on the opinion of the MOC, the applicant does not satisfy PIC 4007(1)(c).

    Should the requirements of PIC4007(1)(c) be waived?

21. The requirement in PIC 4007(1)(c) to be free of a disease or condition that would impact on health or community services, may be waived if among other things, the decision maker is satisfied that the granting of the visa would be unlikely to result in either ‘undue cost’ to the Australian community or ‘undue prejudice’ to the access to health care or community services of an Australian citizen or permanent resident: 4007(2).

22. The evaluative judgment of whether the cost to the Australian community or prejudice to others is ‘undue’ may import considerations of compassionate or other circumstances: Bui v MIMA (1999) 85 FCR 134 (‘Bui’) at 47. Over and above the consideration of the likelihood that cost or prejudice will be ‘undue’, there is also the discretionary element of the ministerial waiver. And within that discretion, compassionate circumstances or compelling circumstances may be relevant: Bui at 47.

23. Departmental policy guidance on the exercise of this discretion is contained in the Procedures Advice Manual (‘PAM3’). Broadly speaking, these relate to: family links in Australia and the impact on family members; occupational skills of the applicant or family members; assets or factors that may mitigate the costs or prejudice to access to care or services involved; available support from family or community groups; potential contribution to Australia by the applicant or family members; the immigration history of the applicant; other compelling and compassionate circumstances including location of the applicant and family members; and any other relevant factors.

24. At the Tribunal hearing and prior to the hearing the applicant and sponsor provided information for consideration in waiving the PIC 4007 requirement as follows:

25. At the Tribunal the sponsor stated that the visa applicant’s health had improved significantly. He further stated that the applicant had undergone a medical examination [in] October 2018, and the doctor’s report indicated that the visa applicant’s health had improved. The sponsor further stated that he did not have much knowledge of the detail contained in the report. The sponsor provided a copy of a report that was not translated and requested two weeks to provide a translation of the doctor’s report to the Tribunal. The sponsor was granted until the 17 October to provide a translated copy of the report.

26. The applicant stated that she previously had severe [symptoms of her medical condition] and she had recently obtained a doctor’s report that indicated that her [symptoms] are now minor. She further stated that she is currently treating herself with herbal medications and a supplement for her [condition] provided by her husband.

27. In light of the new evidence provided by the applicant the Tribunal requested a further medical opinion from the MOC on 23 November 2018. The applicant provided translated documents of her medical examination and these were forwarded to the MOC. On the 29 November, the applicant’s health assessment was deferred because the MOC did not have sufficient information to determine whether or not the applicant met the health requirement. The applicant was requested by the MOC to provide additional information to complete the assessment.

28. On 21 December 2018, the Tribunal received the second opinion from the MOC. The MOC advised the Department that it considered the visa applicant was a person to whom PIC 4007(1)(c) applied on the basis that she has [a specified medical condition]. There is laboratory evidence of ongoing [related symptoms and] injury.  With regard to the provisions of services to a hypothetical person with the applicant’s condition, the MOC noted: It is likely that a hypothetical person with a condition of this form and severity, would be likely to require long-term specialist health care services, including but not limited to [specified] pharmaceuticals and this condition is likely to be permanent. The MOC considered that a hypothetical person with this disease or condition, at the same severity as the applicant, would be likely to require health care or community services during the period specified.

29. 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. The MOC based the opinion on available medical examination undertaken by the visa applicant at a panel clinic in Fujian province, China [in] November 2016 with associated blood test reports, the report from health institutions in Fuzhou City dated [in] October 2018 and the blood test results of [two dates in] October 2018.

30. Specifically, the Tribunal is satisfied that the MOC opinion identified the applicant’s condition to which PIC 4007 has been applied, ascertained the form or level of condition suffered by her and applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition. Accordingly the Tribunal is satisfied the MOC opinion is valid and the MOC has applied the correct test in forming the opinion.

    Undue cost to the Australian community:

31. According to an assessment of the MOC made on 7 December 2016, the estimated cost to the Australian community of the services required as a result of the applicant’s diagnosed [condition] is likely to be around $357,200, which is substantial.

32. On 15 February 2019 The Tribunal requested the sponsor to provide further information in regard to the applicant and sponsor’s ability to mitigate the costs of the applicant’s medical costs.

    ·The applicant told the Tribunal that she had $50, 000 and had no loans or any debt;

    ·The sponsor has an ANZ complete access account with $47,564.06 credit;

    ·The sponsor has an ANZ offset account with $400,000 credit;

    ·The sponsor has an ANZ offset account with $91,125.83 credit;

    ·The sponsor has a Bank of China term deposit of $57,083.33 credit;

    ·The sponsor has property in China valued at $200,000;

    ·The sponsor has liabilities in property in Australia of $560,000 debit;

    ·The sponsor has property assets in Australia valued at$680, 000.

33. Based on the above figures the applicant and sponsor have net assets of $965, 773.22. The Tribunal accepts that the parties have significant financial assets and debt.

34. The sponsor’s brother gave evidence that family members in Australia would provide financial support to the applicant and sponsor and assist with medical costs if required. The sponsor’s family members have provided statements of support and evidence of their saving and assets. The sponsor stated that he has bought medical insurance to cover the costs of the applicant’s medical bills. He further stated that he works in the construction industry (plasterer) and his income is $90,000 per year. The sponsor also said that he was currently paying $550 per week rent and the parties would live as a family with his parents when the applicant and their child come to Australia.

35. In summary, the Tribunal accepts that the sponsor’s family members living in Australia are prepared to provide financial support and places some weight on their evidence. However, the Tribunal does not consider their claims as sufficient evidence of the applicant’s access to those savings and assets considering they have their own financial responsibilities and families to support and their promises are not enforceable. The Tribunal also notes that the sponsor has significant liabilities to pay off and would have a wife and child to support in Australia. Therefore, the Tribunal does not consider there is sufficient evidence to demonstrate that the applicant and/or the sponsor have substantial assets or an ability to mitigate the applicant’s costs to the Australian community in the area of health care and/or community services. The Tribunal accepts that the applicant has medial health cover but there is insufficient evidence to demonstrate that the cover would mitigate any costs of the applicant’s current condition.

36. The Tribunal considered the applicant and sponsor’s potential contribution to the Australian community. The applicant said that the sponsor does not want her to work for other people and she would open her own florist shop. The Tribunal notes the applicant has limited English skills and limited career and education history and it is likely she would find it difficult to find employment. This places the applicant in a vulnerable position and she would have limited financial means of support if the sponsor’s financial circumstances change for the worse.

    Compelling and compassionate circumstances

37. The sponsor gave evidence that the applicant finds it difficult raising a child and living on her own in China. He further stated that he provides financial support to the applicant and his child. The applicant stated that her child’s welfare should be considered foremost as not having a father is having a detrimental impact on her child psychologically. The Tribunal acknowledges the applicants claims that she and her son are significantly dependent on the sponsor financially, physically and emotionally. There is insufficient probative evidence before the Tribunal to demonstrate that the parties’ child has psychological problems. The Tribunal places little weight on the claim. Further, the Tribunal notes that departmental policy states applications under the Family stream are based on a close family relationship, and the possible separation of family members should a visa be refused would not generally be considered sufficient to waive the public interests requirements. The Tribunal is not satisfied that the potential separation should the visa not be granted would constitute compelling reasons for waiving the health requirements of PIC 4007.  

38. The applicant claims the sponsor cannot return to China to live because he is the eldest son and must care for his parents in Australia. The sponsor gave evidence that his parent’s health at present is reasonably good and they currently mind his sister’s daughter. The Tribunal accepts that the sponsor’s parents have health issues based on the medical reports provided to the Department. There is no probative evidence before the Tribunal that the sponsor’s parents require or are receiving primary care from the sponsor or the sponsor has the capacity or any intention to be the primary carer for his parents. Further documentary evidence is before the Tribunal that other family members live in close proximity to the sponsor’s parents and there is little evidence to demonstrate that they could not provide care and support to the parents if required.

1. The Tribunal notes that the sponsor grew up in China. He migrated to Australia in 2010 at the age of 31. He remains a citizen of China and is able to live with the applicant in China as her partner. The parties have adequate means to fund any travel and relocation costs in China. The Tribunal notes that the sponsor’s movement records show that the sponsor travels outside of Australia several times each year. The sponsor has a property in China which can be used as the couple’s residence. Social security benefits are available in China. The applicant has family members living in China.  The applicant and the parties’ child have never been to Australia. They have no family links or other ties in Australia apart from the sponsor and his family. The Tribunal accepts that the sponsor is not inclined to relocate to China to live with the applicant because all his immediate family members reside in Australia.  

2. Further, the Tribunal notes that the applicant and sponsor started their relationship in China after the sponsor migrated to Australia in 2010. The Tribunal is of the view that the sponsor has made a personal choice to marry the applicant who is not an Australian resident and therefore bears the risk of the applicant not being able to obtain a visa to enter Australia. Therefore, the Tribunal does not consider the location and circumstances of the sponsor and his family give rise to compassionate or compelling circumstances.  

3. Having considered the parties’ circumstances singularly and cumulatively, the Tribunal is not satisfied that the granting of the visa would be unlikely to result in either ‘undue cost’ to the Australian community or ‘undue prejudice’ to the access to health care or community services of an Australian citizen or permanent resident: 4007(2).

   Conclusion

4. As the request to waive PIC 4007(1)(c) has not been granted, The Tribunal is not satisfied that the applicant meets the health requirement based on the assessment of the MOC, and therefore the applicant does not meet cl.309.225 at the time of the decision.

5. Therefore, the secondary applicant is not the member of the family unit of a person who satisfies the primary criteria in cl.309.321 at the time of decision. The secondary applicant does not hold and has not held a Subclass 309 visa or a Subclass 445 (Dependent Child) visa at the time of decision.

6. As the applicant has not satisfied the requirements of PIC 4007, the decision under review must be affirmed.

   DECISION

7. The Tribunal affirms the decision not to grant the visa applicants Partner (Provisional) (Class UF) visas.

   Russell Matheson

   
   

   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.