West (Migration)

[2017] AATA 2569

West (Migration) [2017] AATA 2569 (29 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Mark West

VISA APPLICANTS:  Ms MEGAWATI SUPRAPTO
Mr MUHAMMAD RIFKY FIRMANSYAH
Mr MUHAMMAD FAKHRI RAMADHAN

CASE NUMBER:  1515446

DIBP REFERENCE(S):  CLF2014/98934

COUNTRY OF REFERENCE:                  Indonesia

MEMBER:Ian Garnham

DATE:29 November 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the second and third named visa applicants meet the following criteria for a subclass 309 (Spouse (Provisional)) visa:

·PIC 4007(2)(b) for the purposes of cl.309.323 of Schedule 2 to the Regulations.

Statement made on 29 November 2017 at 1:13pm

CATCHWORDS
Migration – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – Significant costs to Australian community – Resourceful people with significant assets – Support from family and friends – Medical and community services available in Australia

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 2.25A, Schedule 2, cl 309.323, Schedule 4, PIC 4007(1), PIC 4007(2)

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 17 September 2015 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 are all citizens of Indonesia and applied for the visas on 16 July 2014. The delegate refused to grant the visas as the second and third named visa applicants (now referred to as the visa applicants) did not satisfy cl.309.323 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 review applicant appeared before the Tribunal on 23 March 2017 to give evidence and present arguments. The Tribunal also received oral evidence from his spouse, the primary visa applicant, Ms Megawati Suprato.  The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

4. The review applicant was represented in relation to the review by his registered migration agent.  The representative attended the hearing. 

5. A detailed submission, dated 10 March 2015 was provided to the Department (DIBP) addressing issues raised by the medical opinions and providing additional information.[1] Further information was provided to the Tribunal at and following the hearing, including a further submission dated 24 April 2017.[2]   

   [1] At FF: 187-190 (DIBP)

   [2] At FF: 61-62 (AAT)

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this review is whether the 2^nd and 3^rd visa applicants 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.

   Background:

8. The review applicant and the primary visa applicant married on 16 March 2013 in Indonesia.  They met in January 2011 as work colleagues at PT Ericsson in Indonesia and committed to the relationship in December 2012.

9. The primary visa applicant has 2 children from a previous marriage (27/11/98 – 28/02/11)

   ·    Rifky (26/01/00) – is 17yo and has mild-moderate intellectual impairment.

   ·    Fakhri (03/12/01) – is 16yo – and has severe Autism Spectrum Disorder.

10. The family lived together in Bangaladesh for two years where the review applicant began working in March 2013, and was joined by the visa applicants in September 2013.  The review applicant worked as head of customer service in Bangladesh.  After this they returned to Jakarta where the review applicant’s employment will terminate at the end of 2017.

11. 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 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.

12. For specified temporary visas, certain specific health care and community services are excluded from this consideration; PIC 4007(1B).  The requirement may also be waived in certain circumstances.

13. As the visa applicants in this case have applied for permanent visas, the exemption provision in PIC 4007(1B) does not apply.

14. In determining whether a person meets PIC 4007(1)(a), (b) or (c), r2.25A 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 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 to the effect that the person may not meet those requirements. Where an opinion of an MOC is required, the Tribunal must take it to be correct: r.2.25A(3).

    Is an MOC opinion required?

15. On the evidence before the Tribunal, an MOC opinion is required.  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.[3]  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.  The MOC must have applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition.

    [3] Robinson v MIMIA (2005) 148 FCR 182 and Ramlu v MIMIA [2005] FMCA 1735.

16. The DIBP file contains MOC opinions for the 2^nd and 3^rd visa applicants dated 05/11/2014:

    ·For Rifky (the 2^nd visa applicant) it states; he has mild to moderate intellectual impairment and; …a hypothetical person with this condition, at the same severity as the applicant, would be likely to require ongoing community support service including but not limited to special education services as a child and supportive employment training as a young adult.

    In the MOC’s opinion, the granting of a visa to the 2^nd visa applicant would not be likely to prejudice the access of an Australian citizen or permanent resident to health care or community services.

    However, the MOC opinion also found that the estimated cost to the Australia community is likely to be $166,000 and that 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. 

    For Fakhri (the 3rd visa applicant) it states; he has severe autism spectrum disorder (SAD); …a hypothetical person with the same condition at the same severity as the applicant would likely require community support services including special education services.

    In the MOC’s opinion, the granting of a visa to the 3^rd visa applicant would not be likely to prejudice the access of an Australian citizen or permanent resident to health care or community services.

    However, the MOC opinion also found that the estimated cost to the Australia community is likely to be $3,049,000 and that 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. 

17. On 15 January 2015 the health assessment outcomes for the 2^nd and 3^rd visa applicants were provided to the primary visa applicant; she was requested to respond to the assessments and in particular provide documentation and information to be considered in respect of the health waiver requirement.

18. On 12 March 2015 the registered migration agent provided a detailed response dated 10 March 2015 (the submission) that addressed the putative compassionate and compelling circumstances of the applicants.[4]  The submission included various attachments including; more recent psychological assessments for both children, school reports and copies of the United Nations Convention on the Rights of the Child and Convention on the rights of Persons with Disabilities.  Subsequently, further progress reports were provided by the 2^nd and 3^rd visa applicant’s therapist in Indonesia.

    [4] At FF: 187-190 (DIBP)

19. As new medical information was provided as part of the response, this information was forwarded to the MOC for a more current opinion. 

20. On 19 May 2015 the MOC provided revised opinions to DIBP, despite the new information, the previous opinions were that essentially unchanged.  In both cases, the MOC again found that granting visas would not be likely to prejudice the access of an Australian citizen or permanent resident to health care or community services.  In both cases they also again found that:  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.

21. In the case of Rifky the estimated cost remained at $166,000 and in the case of Fakhri the cost increased to $3,196,896.

22. I am satisfied that the second opinions are properly made in accordance with the requirements set out at paragraph 15 above.       

23. Accordingly I am satisfied that the MOC opinions have been properly made in this case.  Based on the MOC opinions, the 2^nd and 3^rd visa applicants do not satisfy PIC 4007(1)(c)(ii)(A).

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

24. 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).

25. 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.

26. Firstly, the Tribunal notes that no prejudice to access has been identified by the MOC opinions.  The Tribunal also notes that the estimated cost for the health care and community services that will be required by Rifky are insignificant in comparison to the estimated costs in excess of three million dollars that will be required for Fakhri.  For this reason and because of the need for all three visa applicants to remain together, my further consideration of this matter will address the estimated health and community costs of Fakhri only.  

27. The Tribunal is also mindful that these costs are expressed in the context of a hypothetical person with the condition suffered by the visa applicant.

28. The parties have put forth significant evidence in an attempt to demonstrate that should Fakhri come to Australia; the health care costs and the costs to the community, attributable to his SAD will be less than those estimated for a hypothetical person of his age.

29. In the submission it was argued that both the review applicant and the primary visa applicant have significant work skills and experience that will enable them to both gain employment in Australia and result in the payment of a substantial tax over their working lives. 

30. At the time of the hearing the review applicant was employed at Ericsson Australia, and has been since March 2007.  He left Australia in 2011 to begin working for Ericsson in Indonesia. 

31. In the delegate’s decision they stated that the review applicant has an annual income of $290,000 (AUD).  At the hearing he said this figure is incorrect and that he actually earns approximately $120,000 tax free.  After the hearing the review applicant provided a letter from his employer that stated he is a permanent employee who is currently on a time limited (maximum period – 24 months) local leave of absence to Ericsson in Indonesia and this assignment ends on 1 January 2018.  At the time he returns to Australia he needs to secure a position in the company, return to his previous role or, if there are no positions available he will be made redundant.[5]  On 22 September 2017 the review applicant wrote to the Tribunal and advised that his position at Ericsson Indonesia had been terminated as of 30/09/17 due to the financial circumstances of the company.[6]  The review applicant expressed concern that this means he will have to return to Australia earlier than anticipated and seek a position at Ericsson Australia or elsewhere.  He also expressed concern at the prospect of becoming financially responsible for 2 households without a long-term income and high stress levels due to the uncertainty of his family’s circumstances. 

    [5] At F 49 (AAT)

    [6] At F 89 (AAT)

32. The primary visa applicant said in her evidence that she fully intends to work in Australia and hopes to do so with her sons and in particular hopes to find employment for herself and Fakhri at the Allens sweets factory which is nearby their family home at Sunday Creek.  The primary visa applicant obtained a Bachelor of Industrial Engineering Degree in 1993.[7]  When the parties met she was working in a managerial role at Ericsson where she claims to have worked for 16 years as a planner and a supervisor.

    [7] At F: 50 (AAT)

33. I accept that the primary visa applicant and the review applicant are professional people and both have the skills and experience to become gainfully employed in a variety of roles in Australia. 

34. The Tribunal was impressed by the genuineness of the evidence and the openness of the applicants’ at the hearing.  They said that upon coming to Australia, before the primary visa applicant seeks to pursue her career, they both intend that she shall devote herself to making Fakhri as independent as possible.  The primary visa applicant believes that if she can work with Fakhri in an unskilled process line environment (such as the lolly factory) he will learn and have an opportunity to become gainfully employed.     

35. I also accept the applicants’ evidence with respect to their asset base which they have provided documentary evidence to establish that independently and collectively they own; the house on 5 acres at Sunday Creek worth approximately $800,000, where they intend to live as a family, plus 2 vehicles and household items worth approximately $50,000.  At the dissolution of the primary visa applicant’s first marriage ownership of a house in Indonesia was gifted to the two boys.  This is the home where the family are currently living.  In addition, the primary visa applicant owns an apartment in Indonesia that is currently rented.  

36. I am satisfied that the primary visa applicant and the review applicant are resourceful people who have significant assets in Australia and Indonesia.  Since marriage they have demonstrated a determination to provide for each other and the two boys.  In particular, they have invested their financial resources and time into providing the best possible care and opportunity for Fakhri to develop, whilst living abroad in Indonesia and Bangladesh. 

37. The primary putative compelling reason put forth in the submissions and at hearing is that the review applicant now seeks to return home to Australia to live with his family together in Australia.  The house at Sunday Creek was purchased with this intention and one of the reasons Australia was chosen is because the review applicant and the primary visa applicant believe that both boys will receive the best medical treatment and superior community resources will be available in Australia than what is available in Indonesia.  The primary visa applicant also said that the boys will have a far greater opportunity to develop and become independent in the wider community because a stigma attaches to autism in Indonesia, whereas in Australia the condition is accepted and the environment will offer a superior opportunity for the two boys to obtain independent functioning in the community.     

38. In the submissions and at the hearing the review applicant claimed that in Australia he will have the support of family members and friends to assist and support the family achieving independence for the boys.  The review applicant has provided evidence that since at least November 2011 (the review applicant’s father’s 90^th birthday in Queensland[8]) he has included the primary visa applicant in all of his affairs in Australia with a view to the family living here. 

    [8] At F: 22 (DIBP)

39. In the application the parties provided Statutory Declarations attesting to the genuineness relationship.[9]  Further Statutory Declarations were provided by a colleague, former colleague and sister (who resides in Australia) of the review applicant who lives in Australia.[10]   These declarations focus on the changes the review applicant and primary visa applicant have made in their lives to, firstly remain together as a family and secondly to provide the best available medical and community services to allow the second and third visa applicants to develop while living abroad for the last 6 years.  The review applicant and primary visa applicant have demonstrated that they will have the support of family and friends to continue the development of the boys while living in Australia.  The declarants have also acknowledged that they will continue to provide support and care for this family in Australia.

    [9] At FF: 24-32 (DIBP)

    [10] At FF: 43-48 (AAT)

40. The review applicant and primary visa applicant have also openly admitted that the resources available to the boys in Australia and the acceptance of autism in the community, means that their family will have a greater opportunity to grow and develop, and contribute to the Australian community will arise if they live in Australia. 

41. I am satisfied that the primary visa applicant and the review applicant have demonstrated substantial compassionate and compelling reasons why the requirements of PIC 4007 (1)(c) in respect of the second and third visa applicants should be waived in this case.              

42. For these reasons the Tribunal finds that the requirements in PIC 4007(2)(b) are met with respect to the second and third visa applicants.  Subject to the visa applicants satisfying all other requirements for the visas, the requirements of PIC 4007(1)(c) may therefore be waived.

1. 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

2. The Tribunal remits the application for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the second and third named visa applicants meet the following criteria for a subclass 309 (Spouse (Provisional)) visa:

   ·PIC 4007(2)(b) for the purposes of cl.309.323 of Schedule 2 to the Regulations.

   Ian Garnham

   
   

   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.