VIDAL (Migration)

[2019] AATA 5658

VIDAL (Migration) [2019] AATA 5658 (20 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Cornel Dela Cruz VIDAL

VISA APPLICANTS:  Emmie Cello VIDAL
Juvy Ann Cello VIDAL
Jessa Mae Cello VIDAL
Jhamaica Cello VIDAL

Coallin Cello VIDAL

CASE NUMBER:  1819641

DIBP REFERENCE(S):  BCC2017/137789

COUNTRY OF REFERENCE:                   Philippines

MEMBER:P. Maishman

DATE:20 December 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Spouse (Provisional)) visa:

·PIC 4007(2)(b) for the purposes of cl.309.228 of Schedule 2 to the Regulations.

Statement made on 20 December 2019 at 1:02pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – health criteria apply also to non-migrating family members – non-migrating child with severe functional impairment does not satisfy criteria – waiver – no undue cost to community or undue prejudice to citizen or permanent resident – non-migrating child to remain in home country and be cared for by other relatives – documents of power of attorney and guardianship submitted – non-migrating child not party to review – refusal of her visa now final – decision under review remitted

LEGISLATION

Migration Act 1959 (Cth), ss 5CA, 65

Migration Regulations 1994 (Cth), rr 1.12, 2.25A, Schedule 2, cl 309.228(2)(b), Schedule 4, criteria 4007(1)(c), (2)(b)

CASE

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 12 June 2018 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 11 January 2017. The delegate refused to grant the visa as the secondary visa applicant, Jaimee Antonia Cello Vidal, (now referred to as the non-migrating child) did not satisfy cl.309.228 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 non-migrating child was not included in the review application. The review applicant’s representative confirmed the non-migrating child had been deliberately omitted from the review due to her health issues. Accordingly, the delegate’s decision to refuse to grant the visa to the non-migrating child is not subject to review before the Tribunal.

4. The review applicant, Cornel Dela Cruz Vidal, appeared before the Tribunal on 10 October 2019 to give evidence and present arguments. At the review applicant’s request, a further hearing was held on 11 December 2019. The review applicant appeared before the Tribunal to give further evidence and present arguments. The Tribunal also heard evidence by telephone from the review applicant’s wife, Emmie Cello Vidal (the primary visa applicant). The Tribunal hearing was conducted with the assistance of an interpreter in the Filipino and English languages. 

5. The review applicant was represented in relation to the review by his registered migration agent. The migration agent attended the hearings.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The Tribunal had before it a copy of the Department’s file. The Department’s file contains, relevantly to this review, the visa application, the sponsor form, a birth certificate for the child Jaimee Antonia Vidal, and the opinion of a Medical Officer of the Commonwealth (MOC) in respect of the child Jaimee Antonia Vidal dated 20 June 2017. Information on the Department’s file indicates the review applicant and the primary visa applicant were married to each other on 28 June 2002. The review applicant arrived in Australia in 2005 on a temporary employment visa and obtained a permanent employment visa in 2010.

8. The review applicant gave the Tribunal a copy of the delegate’s decision. The delegate’s decision record summarises the review applicant’s visa history. The review applicant entered Australia as a skilled migrant on the basis of his employment as a slaughter person; his wife and children, including Jaimee Antonia Vidal, were declared on his application as non-migrating dependents living in the Philippines.  The review applicant was granted a permanent visa in 2010 and has subsequently been granted Australian citizen.

9. The review applicant gave the Tribunal an Affidavit of Guardianship deposed on 6 November 2018, a number of photographs; a letter entitled Special Power of Attorney and Appointment of Guardianship; and a Statutory Declaration declared by the review applicant on 18 September 2019.

10. The review applicant did not include Jaimee Antonia Vidal as a party to the Tribunal application on the basis she would remain in the Philippines with her aunt. The Tribunal acknowledges the documentary evidence of an affidavit of guardianship dated 6 November 2018, the review applicant’s statutory declaration dated 18 September 2019 and an undated letter entitled “Special Power of Attorney and Appointment of Guardianship” indicating the visa applicant would be looked after and cared for by the review applicant’s sister, Elsa Vidal Ayson in the Philippines. The review applicant confirmed at hearing that the visa applicant was his and the primary visa applicant’s biological child.

11. The Tribunal explained to the review applicant at the hearing, the requirement to meet the health criteria is also applicable to non-migrating members of the primary visa applicant’s family unit under cl.309.228(2)(b). There is no evidence before the Tribunal that the non-migrating child has been adopted. The Tribunal is satisfied the non-migrating child, Jaimee, is a child of the review applicant and the primary visa applicant and a member of the primary visa applicant’s family unit as defined in s.5CA and r.1.12.

12. The MOC opinion dated 20 June 2017 is more than two years old. It predates the policy changes made by the Department in relation to MOC assessing the health criteria. In particular the new policy:

    ·     raised the threshold level for ‘significant costs’ from AUD $40,000 to AUD $49,000 for all cases; and,

    ·     for permanent and provisional visa applicants who have a permanent condition, reduced the assessment period from lifelong costs to costs for a maximum of 10 years.

13. The effect of these changes is that an applicant who previously failed to meet the health criteria because of an adverse MOC opinion may, in certain circumstances, now meet the health criteria under the more favourable policy.

14. At the hearing on 10 October 2019 the Tribunal invited the applicant to obtain an updated MOC opinion. The Tribunal adjourned the hearing and received a further MOC opinion dated 12 November 2019 that a hypothetical person with the non-migrating child’s condition, at the same severity as her, would be likely to require health care or community services, the provision of which would be likely to result in a significant cost to the Australian community. The MOC estimated the costs of the services to total $856,200.  

15. The Tribunal wrote to the review applicant on 13 November 2019 inviting him to comment on, or respond to, the adverse MOC opinion and the discretion to waive the requirement to meet PIC 4007 in writing.

16. The Tribunal received a written response from the review applicant’s representative and a school progress report in respect of the non-migrating child on 24 November 2019. The applicant requested a further hearing which was conducted on 11 December 2019.

17. The issue in this review is whether the primary visa applicant meets cl.309.228(2)(b) on the basis that a member of her family unit who is not a visa applicant meets Public Interest Criterion (PIC) 4007. Public Interest Criterion 4007, as it applies to this case, is extracted in the attachment to this decision. It requires the member of the family unit, 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.

18. The review applicant in this case seeks the requirement to meet the PIC 4007 to be waived.

    Is the member of the family unit (non-migrating child) of the applicant free from the relevant diseases or conditions (PIC 4007(1)(a), (b), (c))?

19. 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.

20. 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.

21. 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).

22. In this case the temporary visa the visa applicant is seeking is specified in Legislative Instrument IMMI 16/067. As such the health care and community services listed in the instrument IMMI 11/073 are not excluded from consideration.

    MOC opinion

23. On the evidence before the Tribunal, two MOC opinions have been obtained dated 20 June 2017 and 12 November 2019.  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.

24. The MOC opinion dated 20 June 2017 has been superseded by a more current MOC opinion dated 12 November 2019. The Tribunal considered the MOC opinion dated 12 November 2019.

25. The MOC is satisfied, and the Tribunal finds, the non-migrating child is free from tuberculosis and is free from a disease or condition that is, or may result in the non-migrating child being, a threat to public health in Australia or a danger to the Australian community.

26. The MOC is of the opinion the non-migrating child has severe functional impairment which is likely to be permanent. The MOC notes that listening and language skills are most severely impaired, but there are also deficits of gross and fine motor function, coordination, and personal – social skills, with only limited improvement over time. The MOC noted the visa applicant needs additional support at school and allied health therapy to achieve maximum potential. The MOC noted a hypothetical person in Australia with the same condition as the non-migrating child, at the same severity, would be likely to require community services including but not limited to special education, care support, and state disability services.

27. The MOC is of the opinion that, while the granting of the visa to the visa applicant would not be likely to prejudice the access of an Australian citizen or permanent resident to health care or community services, the provision of health care and/or community services would be likely to result in a significant cost to the Australian community and therefore the applicant did not meet the health requirement.

28. The MOC opinion listed the reports considered in forming the opinion, including the Panel Physician examination and activities of daily living assessment dated 24 January 2017, neurodevelopmental assessments of 2 March 2017 and 7 November 2019 and a letter from the Principal of San Miguel Elementary school dated 4 November 2019. The MOC opinion outlines the visa applicant’s health condition, the severity of the condition and described the health care or community services likely to be required by a hypothetical person with the same condition of the same severity as the visa applicant.

29. The review applicant does not dispute the validity of the MOC opinion.

30. The MOC has applied the correct test and the Tribunal is satisfied the MOC opinion dated 12 November 2019 is valid. The Tribunal is bound to take the MOC opinion has been correct.

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

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

32. The MOC is of the opinion a hypothetical person with the same condition of the same severity as the non-migrating child would require Commonwealth disability services, State disability services, and special education services with an estimated combined cost to the Australian community for those services likely to be AUD $856,200 which is higher than the significant cost threshold of AUD $49,000. The Tribunal clarified with the MOC that the assessment of the estimated costs was for a relevant period of 10 years.

33. 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).

34. The visa applicants that are parties to this review, and the non-migrating child, live together in the Philippines with the review applicant’s sister and her husband. The review applicant and the primary visa applicant have made arrangements for the number child to remain in the Philippines to be cared for by either the review applicant’s sister or the primary visa applicant’s auntie. The review applicant said the non-migrating child would be cared for by his sister, Elsa Ayson, and the Tribunal notes an affidavit and letter of guardianship support this arrangement.

35. The non-migrating child is not a party to the review and the decision made by the delegate on 12 June 2018 to refuse her visa application is final. The non-migrating child cannot migrate to Australia without making a further visa application for which she will likely be required to satisfy PIC 4007.

36. As the non-migrating child cannot enter Australia there will be no undue cost to the Australian community in respect of Commonwealth disability services, State disability services or special education services or undue prejudice to the access to health care or community services of an Australian citizen or permanent resident.

37. For these reasons, the Tribunal is satisfied that the granting of the visa would be unlikely to result in undue cost or undue prejudice within the terms of PIC 4007(2)(b). Therefore PIC 4007(1)(c) may be waived subject to the applicant satisfying all other requirements for the visa.

38. In relation to the secondary applicants, the Tribunal remits the applications for the visas to the Minister to consider the remaining criteria for the grant of the visa.

39. 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

    DECISION

40. The Tribunal remits the application for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Spouse (Provisional)) visa:

    ·PIC 4007(2)(b) for the purposes of cl.309.228 of Schedule 2 to the Regulations.

    P. Maishman

    
    

    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.