Wang (Migration) - [2020] AATA 3596

Wang (Migration) [2020] AATA 3596 (23 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Xuefen Wang
Master Yingxu Wang
Miss Zixu Wang
CASE NUMBER:  1836901
DIBP REFERENCE(S):  BCC2019/6825 CLF2014/117411
COUNTRY OF REFERENCE:                   China
MEMBER:P. Wood
DATE:23 August 2020
PLACE OF DECISION:  Melbourne, Victoria
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.820.224 of Schedule 2 to the Regulations.

Statement made on 23 August 2020 at 12:48pm

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of decisions made by a delegate of the Minister for Immigration on 4 December 2018 to refuse to grant the applicants Partner (Temporary) (Class UK) visas under s.65 of the Migration Act 1958 (the Act).
The visa applicants first applied for the visas on 26 August 2014.
The delegate refused to grant the visa as the applicant did not satisfy cl.820.224 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. The primary decision contains an extract of cl.820.224(1). PIC 4007 is extracted in the attachment to this decision. It requires applicants, 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. Crucially, in this case, the delegate elected not to waive the health requirement.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Relevant law
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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] AATA 3596
Decision Date: 23 August 2020

CaseChat Overview and Summary

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820 (Spouse), by Yingxu Wang. The dispute centred on whether the applicant met the health criteria, specifically Public Interest Criterion (PIC) 4007, which requires an applicant to be free from diseases or conditions likely to result in significant cost to the Australian community or prejudice access to health services. The applicant had been advised by a Medical Officer of the Commonwealth (MOC) that they did not meet PIC 4007(1)(c)(ii)(A). The applicant sought a waiver of this requirement, citing the impact on their Australian citizen child with cerebral palsy and an elderly parent with multiple conditions. The decision was made by P. Wood, Senior Member of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant satisfied PIC 4007, and if not, whether the requirements of PIC 4007(1)(c) should be waived. The Tribunal was required to determine if the MOC's opinion that the applicant's condition would likely result in significant cost to the Australian community was correctly formed and applied, and if not, to consider the grounds for a waiver under PIC 4007(2). The Tribunal noted that for permanent visas, the exemption in PIC 4007(1B) did not apply.

The Tribunal acknowledged the applicant's submissions and the medical reports provided, but was bound by the MOC's opinion under regulation 2.25A, provided the MOC had applied the correct legal test. The Tribunal found no error in the MOC's opinion regarding the applicant's condition and the likely costs. Consequently, the applicant did not satisfy PIC 4007(1)(c). However, the Tribunal determined that the appropriate course was to remit the application for reconsideration by the Minister, with a direction that the applicant met PIC 4007(2)(b) for the purposes of clause 820.223 of Schedule 2 to the Regulations, indicating a positive assessment for waiver considerations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE Relevant law 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. 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. 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. 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. As the applicant in this case has applied for a permanent visa, the exemption provision in PIC 4007(1B) does not apply. 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 the applicant free from the relevant diseases or conditions (PIC 4007(1)(a), (b), (c))? The primary decision record indicates that Yingxu Wang undertook a medical examination in January 2018 and the Medical Officer of the Commonwealth advised that the applicant did not meet the health requirements in PIC 4007(1)(c)(ii)(A). The applicant provided a number of medical reports to the Tribunal and the Tribunal has given these due regard. The applicant also argues that the cost would not be as high as the MOC suggests. The Tribunal acknowledges these submissions, however, the Tribunal must take the MOC opinion as correct, provided it is 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. 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. The applicant has not satisfied the Tribunal that the costs of the treatment had been incorrectly identified or calculated, nor that the opinion was otherwise affected by error. 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?

Decision

Reasons for decision

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.P. WoodSenior MemberATTACHMENTMigration Regulations 1994Schedule 44007(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.

Ratio Decidendi

Legal Principle Established

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