Vong (Migration)
[2024] AATA 765
•2 April 2024
Vong (Migration) [2024] AATA 765 (2 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Hue Nghia Vong
REPRESENTATIVE: Mr Quan S Do (MARN: 1577384)
CASE NUMBER: 1904050
HOME AFFAIRS REFERENCE(S): BCC2016/3506275
COUNTRY OF REFERENCE: Vietnam
MEMBER:Tegen Downes
DATE:2 April 2024
PLACE OF DECISION: Brisbane
DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 (Spouse) visa:
·PIC 4007(2)(b) for the purposes of cl 820.223 of Schedule 2 to the Regulations.
Statement made on 02 April 2024 at 12:56pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – health criteria – undue cost to the Australian community – compassionate or compelling circumstances – lengthy and genuine de facto relationship – substantial income and assets to mitigate potential health costs – sponsor’s health conditions – applicant’s excellent prognosis – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 820.223; Schedule 4, Public Interest Criterion 4007; r 2.25CASES
Bui v MIMA (1999) 85 FCR 134
Ramlu v MIMIA [2005] FMCA 1735
Robinson v MIMIA (2005) 148 FCR 182STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 February 2019 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under section 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 21 October 2016. The delegate refused to grant the visa as the applicant did not satisfy cl 820.223 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.
The applicant was represented in relation to the review. The representative filed written submissions dated 7 November 2023.
The applicant appeared before the Tribunal by Microsoft Teams on 21 March 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was given the opportunity to, and did file, additional evidence following the hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
ISSUE AND LAW
The issue in this review application is whether the applicant meets PIC 4007.
PIC 4007, as it applies to this case, is extracted in the attachment to this decision. It requires the applicant to, in certain circumstances, undergo a medical assessment and be free of certain diseases or conditions that may impact on the community. This last requirement may be waived in certain circumstances.
Relevantly, clause 4007(1)(c) requires the applicant to be free from a disease or condition in relation to which:
a.the applicant would be likely to require either health care or community services, or meet the medical criteria for provision of a community service during the specified period; and
b.the 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 either: 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.
In determining whether a person meets PIC 4007(1)(c), reg 2.25A requires the Tribunal to seek the opinion of a Medical Officer of the Commonwealth (MOC), unless certain exceptions apply. Where MOC opinion is required, the Tribunal must take it to be correct: reg 2.25A(3). The current threshold for ‘a significant cost’ is $51,000 and the specified period is 10 years.
The requirement in PIC 4007(1)(c) 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).
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.
The department’s procedural instruction for PIC 4005-4007 (VM-1027 dated 10 November 2023) (which is informative but not binding on the Tribunal) provides that each health waiver case must be considered on its merits, with all relevant factors taken into account, including the capacity to mitigate the potential costs or prejudice to access identified, and the strength of any compelling and/or compassionate circumstances. It also provides that criteria that may be considered to be compassionate and compelling include that:
·an Australian citizen sponsor has been diagnosed with a health condition and would be unable to access appropriate treatment if forced to relocate;
·there is no permanent migration pathway to the applicant’s home country (or another country that the couple have the legal right to reside in) available to the sponsor (for example, because same-sex migration to that country is not available);
·the sponsor would be seriously adversely affected financially, such that they would be unable to subsist (maintain or support themselves at a minimal level) in the applicant’s home country due to a lack of language skills, family support and/or employment opportunities;
·there is evidence of an adverse impact on Australian citizen or permanent resident minor children if a decision not to waive is made;
·the sponsor has significant family links to Australia, and has demonstrated caring or financial obligations towards them;
·Australia would miss out on a significant benefit that the applicant/sponsor could contribute to Australia’s business, economic, cultural or other development (for example, a specialised skill/business that is highly sought after in Australia) or are providing a valuable community service (for instance through their employment and/or volunteering activities);
·the sponsor/family is already settled in a remote, rural or regional area, and it is assessed that a decision to waive would bring economic or social benefit to that area;
·the sponsor/applicant and/or other working family members in a non-Skilled visa application have occupational skills in high demand (refer to the Medium and Long-term Strategic Skills List (MLTSSL) of the Skilled Occupation List);
·the applicant and/or other working family members have occupational skills that are found on the National Skills Commission’s latest Skills Priority List (found at not on the MLTSSL or the National Skills Commission’s Skills Priority List, the applicant/sponsor has a unique skillset that is vital to their employer’s business, and/or there is evidence that the employer would suffer detriment if a health waiver was not exercised; or
·there are any other compelling or compassionate factors including the location and circumstances of the applicant and/or sponsor’s family members.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
The applicant is a 35-year-old man from Vietnam. He has applied for a partner visa based on his relationship with an Australian citizen, his sponsor. The couple claim to have been in a genuine and continuing de facto relationship for approximately seven years.
The delegate found that the applicant failed to satisfy PIC 4007 based on a MOC opinion dated 12 October 2017, which provided that the applicant had asymptomatic Human Immunodeficiency Virus infection (HIV) and that a hypothetical person with the same condition of a similar severity would require health care and/or community services, the provision of which would be likely to result in a significant cost to the Australian community. The estimated costs were as follows:
Pharmaceuticals
$624,000
Medical services
$78,000
Total Cost
$702,000
The applicant submitted information to the department in response to the MOC opinion. However, the delegate decided that the health requirement should not be waived because the delegate was not satisfied that the potential costs identified were outweighed by mitigating factors and/or compassionate and compelling circumstances.
Is the applicant free from the relevant diseases or conditions (PIC 4007(1)(a), (b), (c))?
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.
A second MOC opinion was provided on 16 October 2023. The MOC opinion was that the applicant does not satisfy PIC 4007(1)(c)(ii)(A). Relevantly, the MOC opinion states:
At the time of visa application, the applicant was a 28 year old person. During the health assessment, this applicant has been assessed with:
- Asymptomatic HIV infection.
Form and severity of the applicant's condition: the applicant has asymptomatic Human Immunodeficiency Virus -1 infection of a genotype with no first-line drug resistance and requires antiretroviral treatment. Current Australian guidelines recommend that all persons with HIV-1 infection of a genotype with no first-line drug resistance should be treated with first-line antiretroviral treatment indefinitely. For the purpose of a RMOC and in line with PIC 4007(1A)(a), the applicant was assessed as a 28 year old person to reflect their age at the time of the visa application. Provision of services to a hypothetical person with the applicant's condition: A hypothetical person in Australia with the same condition as the applicant, at the same severity, is eligible for the first-line antiretroviral pharmaceuticals as per recommended under the current Australian guidelines for HIV-1 infection of a genotype with no first-line drug resistance, and would be likely to require long term specialist health care services. This condition is likely to be Permanent.
I consider 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 above.
These services would be likely to include:
Medical services
Pharmaceuticals
Provision of these health care 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
Estimated total cost
Breakdown as follows:
$117,800.00
Medical services - $540.00 x 10.0 Years
Costs include 3-monthly GP reviews, yearly specialist review and yearly FBC/CD4 T-cell lymphocyte count/HIV viral load diagnostics;
Cost estimate based on HIV/AIDS Notes for Guidance Oct 2022, including but not limited to scenario 1 – HIV-1 infection of a genotype with no first-line drug resistance.
$5,400.00
Pharmaceuticals - $11,240.00 x 10.0 Years
Antiretroviral treatment for HIV-1 infection of a genotype with no firstline drug resistance; Cost estimate based on HIV/AIDS Notes for Guidance Oct 2022, including but not limited to scenario 1 - HIV-1 infection of a genotype with no first-line drug resistance.
$112,400.00
I am satisfied that the MOC opinion is valid because it identifies the medical condition to which the public interest criterion has been applied, the form or level of the condition suffered by the applicant, and the statutory criteria has been applied by reference to a hypothetical person who suffers from that form or level of the condition. Accordingly, based on the opinion of the MOC, the applicant does not satisfy PIC4007(1)(c).
Should the requirements of PIC4007(1)(c) be waived?
I have considered the claims made by the applicant and I am satisfied that the granting of the visa would be unlikely to result in undue cost or undue prejudice within the terms of PIC4007(2)(b). Therefore PIC 4007(1)(c) may be waived, subject to the applicant satisfying all other requirements for the visa.
I consider that the following circumstances, when viewed collectively, support the waiver:
a.the applicant has provided credible documentary evidence to the Tribunal that he has substantial income and assets to mitigate the potential costs of his condition, including that:
i.the applicant has full-time employment with an annual salary of $57,520;
ii.the applicant has approximately $160,000 in savings;
iii.the applicant has approximately $13,000 in superannuation;
iv.the sponsor has approximately $50,000 in savings; and
v.the sponsor owns a car which is valued at approximately $15,000;
b.the sponsor has provided credible documentary evidence to the Tribunal that he has multiple health conditions for which he requires ongoing medication and health reviews. He has been on the Disability Support Pension since 2010 because of these heath conditions. His medication is discounted because of the Pharmaceutical Benefits Scheme and the Disability Support Pension. He was also recently diagnosed with another serious medical condition that will require further management.
c.I accept the sponsor’s evidence at face value that he would be unable to access appropriate treatment, to the standard and at an equivalent cost to that which he receives in Australia, if he were forced to relocate.
d.I accept that the sponsor would be seriously adversely affected financially, such that they would be unable to subsist in the applicant’s home country because:
i.he has not had paid employment for approximately 14 years because of his health conditions; and
ii.if he permanently relocated to Vietnam, after a period of time, he would no longer be able to access, or may only be able to access at a reduced rate, the Disability Support Pension or the Aged Care Pension.
e.The applicant has provided credible medical evidence to the Tribunal that he is clinically well and stable on anti-retroviral treatment, that he maintains his appointments for clinical review, investigations, and repeat prescriptions and that he has an excellent prognosis with an essentially normal life expectancy.
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 a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 (Spouse) visa:
·PIC 4007(2)(b) for the purposes of cl 820.223 of Schedule 2 to the Regulations.
Tegen Downes
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.
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