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

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – health criteria – disease or condition likely to result in significant cost to Australian community – opinion of medical officer of commonwealth – waiver of requirements – impact on sponsor’s Australian citizen child with cerebral palsy and elderly parent with multiple conditions – validly married – first applicant’s occupational skills and experience – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), rr 2.24A, 2.25A(3), Schedule 2, cl 820.224(1), Schedule 4, criterion 4007(1)(c)(ii)(A), (2)(b)

CASES

Bui v MIMA (1999) 85 FCR 134

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 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).

2. The visa applicants first applied for the visas on 26 August 2014.

3. 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.

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Relevant law

5. 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.

6. 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.

7. 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.

8. 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.

9. 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))?

10. 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?

11. 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).

12. 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. 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.

    Negative impact on Australian citizen children (particularly those children of the relationship if a Partner visa has been applied for or those children who are already residing in Australia)

13. The sponsor and Ms Wang married in 2014. Significantly, the sponsor has an Australian citizen child, Curtis, from a previous relationship, who suffers from cerebral palsy. The evidence before the Tribunal is that Curtis cannot walk or speak. The Tribunal accepts that Curtis has significant ongoing needs, resulting from his medical condition, which are being at least partially met by the applicants and the sponsor as a family unit (with the assistance of the sponsor’s former partner). The Tribunal accepts that if the visa is not granted, and if the applicants may be required to leave Australia, that would have considerable negative impact on Curtis. The Tribunal considers that this weighs significantly in favor of the waiver being exercised.

    Result in immediate family members living apart

14. As indicated above, the first named applicant's spouse (the sponsor), his child and elderly mother are all Australian citizens and live in Australia (see below). The applicants have no other family in Australia.

    Whether, if an Australian citizen sponsor were forced to relocate, it would negatively impact on their health

15. The sponsor lives with and cares for his elderly mother, Xiu, who is also an Australian citizen. Xiu suffers from diabetes, hypertension and shoulder pain. Xiu provided the Tribunal with a statutory declaration in which she declared that she relies on the sponsor “heavily for mental support”. Given Curtis’ cerebral palsy however, the Tribunal accepts that it would be extraordinarily difficult for the Australian citizen sponsor in this case to ever relocate. The Tribunal accepts that if the sponsor and his mother were forced to relocate, it would negatively impact their health on many levels.

    Whether the applicant and/or other family members have substantial assets or an ability to mitigate the costs/prejudice to access involved - for example, due to private care arrangements and/or support being available

16. The applicants provided the Tribunal with various bank statements. These show some savings but such savings are limited and not sufficient to mitigate the overall cost referred to above.

    Whether an Australia citizen sponsor would not be able to migrate to the applicant's home country

17. The Tribunal accepts that because of the sponsor’s need to care for Curtis, and his elderly mother, he would be unable to migrate to China.

    Whether the applicant has significant family links in Australia

18. The applicant has no family in Australia other than her husband and his relatives.

    Significant support from family or community groups

19. The applicant provided to the Tribunal a number of statements from friends and community members offering support to the couple. The Tribunal accepts there is a degree of support from the community that would be available to the applicant.

    The potential contribution of the visa applicant and their family to Australia including skills, qualifications, English language ability and employment prospects that may assist the applicant and any dependents once in Australia

20. The delegate considered, as it was necessary to do in accordance with the relevant policy, whether the sponsor can make a contribution to Australia, including through skills and qualifications.

21. The applicant’s evidence is that she holds a bachelor’s degree in music education and has since 1996 being primarily employed as a piano teacher. Since coming to Australia, the applicant has continued to work as a piano teacher to primarily primary aged students. The Tribunal accepts that evidence.

    Any other compelling or compassionate factors including the location and circumstances of the applicant and/or sponsor's family members

22. These are addressed elsewhere in this decision.

    The immigration history of the applicant (and sponsor/proposer, if applicable)

23. Nothing adverse is known about the applicant's and the sponsor's immigration history. The applicant's evidence to the Tribunal is that the sponsor has been living in Australia for about 20 years.

24. The Tribunal has considered the entirety of the applicant's circumstances.

25. The Tribunal has placed significant weight on the unique circumstances of this case, including the genuine and continuing nature of the parties’ relationship, and including its long-term nature. The Tribunal has looked upon this case with a degree of compassion driven by the particularly unique circumstances of the Australian citizen sponsor. Indeed, the Tribunal places significant weight on the fact that the Australian citizen sponsor already has a child, who is also an Australian citizen, who suffers from cerebral palsy and whose special needs are presently being met in Australia, where the mother of this Australian citizen child also resides. The Tribunal acknowledges that the costs identified by the MOC are high and the family have little capacity to meet or mitigate the costs. The Tribunal has formed the view that the applicant has valuable skills as an experienced piano teacher. The Tribunal accepts that the applicant is able to make a contribution to the community through this employment. The couple's evidence is that if the waiver is not applied, the sponsor is highly unlikely to accompany the applicant to China and this would lead to the separation of family members. The Tribunal has formed the view that if the waiver is not applied, that is likely to lead to separation of the applicant and her Australian citizen husband and that would also cause considerable hardship to the family.

26. 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 PIC4007(2)(b). Therefore PIC 4007(1)(c) may be waived subject to the applicant satisfying all other requirements for the visa.

    CONCLUSION

27. 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 PIC4007(2)(b). Therefore PIC 4007(1)(c) may be waived subject to the applicant satisfying all other requirements for the visa. 

28. 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

29. 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. Wood
    Senior 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.