Tan (Migration)

[2022] AATA 2806

Tan (Migration) [2022] AATA 2806 (21 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Xiaoxia Tan

VISA APPLICANT:  Mr Zebin Liu

REPRESENTATIVE:  Ms Carina Ford (MARN: 9802862)

CASE NUMBER:  1829083

HOME AFFAIRS REFERENCE(S):          BCC2017/4560085

COUNTRY OF REFERENCE:                   China

MEMBER:Stephen Conwell

DATE:21 July 2022

PLACE OF DECISION:  Melbourne

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 (Spouse (Provisional)) visa:

·PIC 4007(1)(c) for the purposes of cl 309.225 of Schedule 2 to the Regulations subject to providing a signed undertaking in accordance with PIC 4007(1)(d).

Statement made on 21 July 2022 at 11:42am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – health criteria – disease or condition likely to require health care or community services – opinion of medical officer of commonwealth taken as correct – signed undertaking required – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)
Migration Regulations 1994 (Cth), r 2.25A, Schedule 2, cl 309.225, Schedule 4, criterion 4007(1)(c), (d)

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 Home Affairs on 4 October 2018 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant (applicant ) applied for the visa on 1 December 2017. The delegate refused to grant the visa as the visa applicant did not satisfy cl 309.225 of Schedule 2 to the Migration Regulations 1994 (Cth) (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) was represented in relation to the review.

4. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2) of the Act.

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 this review is whether the visa applicant meets 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. The applicant in this case undertook his health examinations on 2 January 2018 and was advised that he had asymptomatic chronic viral Hepatitis B and at that time was on antiviral treatment.  As a result, on 2 January 2018 the Commonwealth Medical Officer advised the Department that the applicant did not meet the health requirement.  

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

7. 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.

8. 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.

9. 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.

10. 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?

11. On 4 May 2022 the Tribunal wrote to the applicant offering him the opportunity for a further MOC assessment and opinion. The applicant accepted the offer of a further MOC assessment and provided the Tribunal with medical reports from China, with English translations, amongst other evidence. This evidence was were forwarded by the Tribunal to the MOC on 24 May 2022 with the request for a further medical opinion.

12. The applicant was assessed on 27 May 2022. In the opinion of the MOC dated 27 May 2022, the applicant has been assessed against the PIC 4007 and he now meets the health requirement. The Tribunal accepts this latest opinion of the MOC. The Tribunal is satisfied that based on the evidence available to it, the applicant satisfies PIC 4007 for the purposes of cl.309.225.

13. On 13 July 2022 an officer of the Tribunal contacted the Department to confirm whether the applicant has been cleared by the MOC.  By email of the same date, the Department advised the Tribunal that the applicant has completed his medicals.  A copy of the MOC Opinion dated 27 May 2022 was provided.  The MOC Opinion states that the applicant meets the health requirement in PIC 4007 subject to providing a signed undertaking in accordance with PIC 4007(1)(d).

14. On the evidence before the Tribunal, a MOC opinion stating that the applicant meets the health requirement has been provided.  As noted above, the Tribunal must take the MOC opinion, properly made, as correct. Accordingly, based on the opinion of the MOC, the applicant satisfies PIC 4007 as indicated in the MOC opinion.

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 a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Spouse (Provisional)) visa:

    ·PIC 4007 for the purposes of cl.309.225 of Schedule 2 to the Regulations subject to providing a signed undertaking in accordance with PIC 4007(1)(d).

    Stephen Conwell
    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.