10th Greek Australian Legal and Medical Conference
Mykonos, Greece 2005

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MIGRATION REVIEW “A MOOT TRIBUNAL HEARING”

Mr Steve Karas, AO

DISCLAIMER: The case scenario presented in this document is fictitious and any resemblance to actual persons or organisations is purely coincidental. The presentation is intended to convey a sense of Migration Review Tribunal hearings. It is not a legal or procedural guide.

CASE SCENARIO

Mr Adrian Brand, an Australian citizen, married Ms Ti Anh Thi, a citizen of Elysium in that country in January 2003.

In July 2003 Ms Thi contracted HIV through a contaminated blood transfusion.

In late 2003, in the course of the procedures for a Subclass 309 Spouse (Provisional) visa application to live in Australia, she was diagnosed HIV positive and assessed as failing to meet the health criteria for the visa by a Medical Officer of the Commonwealth.

On 15 December 2003 her application for the visa was refused.

Mr Brand lodged a review application of this refusal with the Migration Review Tribunal in January 2004.

As part of this process, Ms Thi’s doctor, Dr Bik, after examining and treating her, provided a report in May 2004. This report was favourable to the issue of a visa.

It was considered by a Commonwealth Review Medical Officer who assessed Ms Thi as failing to meet the health criteria under the Migration Regulations.

A Tribunal hearing date for the review was set down for 3 June 2005.

The hearing turns on the question of whether the Tribunal will exercise a discretion it has to waive the health requirement in the case of Ms Thi.

The Tribunal can exercise that discretion in Ms Thi’s favour if it is satisfied that granting the visa would be unlikely to result in

  • undue cost to the Australian community; or
  • undue prejudice to the access to healthcare or community services of an Australian citizen or permanent resident.’

At the non-adversarial (inquisitorial) hearing of this matter held on 3 June 2005 evidence was received by the Tribunal from:

(a) Mr Adrian Brand the review applicant and spouse of Ms Ti Anh Thi

(b) Mr Graeme MacGregor the President of the AIDS Council of Australia, and

(c) Dr George Adamidis, the Head of the Infectious Diseases Unit, Royal New South Wales hospital

who all appeared in person. Evidence was also taken by telephone at the hearing from

(a) Ms Ti Anh Thi (the visa applicant) and wife of Mr Adrian Brand, and

(b) Dr Thang Bu Bik the Local Government doctor in Elysium who was treating the visa applicant.

The following copy of the Decision in this case was completed after the hearing by the Presiding Member constituted for this matter.

migration review tribunal logo

DISCLAIMER: This document is intended only to provide a sense of the decision making processes of the Migration Review Tribunal (MRT). While it resembles an MRT decision in its form, it has no legal effect as a decision of the MRT. Its contents are entirely fictitious and any resemblance to actual persons is purely coincidental. It should not be relied upon as a legal or procedural guide.

[Fictional] DECISION RECORD

CATCHWORDS: Review of visa refusal - Subclass 309 - health criteria – opinion of medical officer – waiver

REVIEW APPLICANT: Adrian BRAND

VISA APPLICANT: Ti Anh THI

TRIBUNAL: Migration Review Tribunal

PRESIDING MEMBER: Steve Karas

MRT FILE NUMBER: N04/12345

DEPT FILE NUMBER: OSF2003/098765

DATE OF DECISION: 1 July 2005

AT: Sydney

DECISION: The Tribunal remits the applications made by the visa applicant for a Partner (Provisional) (Class UF) visa and a Partner (Migrant) (Class BC) visa to the Department of Immigration and Multicultural and Indigenous Affairs for reconsideration, with a direction that the visa applicant is to be taken to have met the following criteria for a Subclass 309 (Spouse) provisional visa:

  • Paragraph 4007(2)(b) of Schedule 4.

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 and Multicultural and Indigenous Affairs (the delegate) to refuse to grant a Partner (Provisional) (Class UF) visa and a Partner (Migrant) (Class BC) visa to Ms Ti Anh THI (the visa applicant). The visa applicant, a national of Elysium, born on 12 March 1976, made an application for provisional and permanent partner visas on 4 February 2003.
  2. The visa application form completed by the visa applicant incorporated an application for a permanent visa, a Partner (Migrant) (Class BC) visa, which normally cannot be granted until two years have elapsed since the lodgement of the application, and an application for a temporary visa, a Partner (Provisional) (Class UF) visa, which can be granted immediately, to permit stay until a decision is made on the permanent visa. This process is intended to test whether the relationship is continuing, 2 years after the visa application, before permanent residence is confirmed. The delegate’s decisions to refuse to grant the visas were made on 15 December 2003.

JURISDICTION AND STANDING

  1. Mr Adrian BRAND (the review applicant), the husband of the visa applicant, lodged a valid application for review with the Migration Review Tribunal (the Tribunal) on 13 January 2004. The decisions to refuse the Class UF visa and the Class BC visa are reviewable by the Tribunal and the application for review has been properly made by a person with standing to apply for review.

LEGISLATION AND POLICY

  1. The Migration Act 1958 (the Act) and the various Regulations made under that Act, principally the Migration Regulations 1994 (the Regulations), provide for different classes of visas, and the criteria for the grant of visas. In reaching a decision, the Tribunal is bound by the Act, the various Regulations and written directions issued by the Minister under section 499 of the Act. Some matters may be the subject of policy, as found in publications such as the Procedures Advice Manual 3 (PAM3) and the Migration Series Instructions (MSIs), produced by the Department of Immigration and Multicultural and Indigenous Affairs (the Department). The Tribunal is required to have regard to policy and apply it unless there are cogent reasons for departing from policy.
  2. The Tribunal has the power to affirm, vary or set aside a decision to refuse to grant a visa. It also has the power to remit an application for a visa to the Department for reconsideration. Such a remittal may be accompanied by directions that a visa applicant meets one or more of the criteria for a visa. It is then a matter for the Minister or a delegate to consider any remaining criteria. A review by the Tribunal is generally limited to a consideration of whether a visa applicant meets one or more essential criteria, with the application remitted or the decision affirmed on that basis.
  3. The criteria and policy immediately relevant to this review are:

Legislation:

Clause 4007 of Schedule 4 to the Regulations

Part 309 of Schedule 2 to the Regulations

Policy:

Procedures Advice Manual 3: Schedule 4 - Public Interest Criterion 4007 - Health Waiver

Cases:

Bui v Minister for Immigration and Multicultural Affairs [1999] FCA 118 (1 March 1999)

Minister for Immigration and Multicultural Affairs v Dunne [1999] FCA 204

Kapambwe v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 429

  1. The Tribunal generally has regard to the Regulations as they stood at the time of a visa application. However, subsequent amendments may apply in some circumstances.
  2. A hearing was held on 3 June 2005 at which the review applicant and the visa applicant gave evidence. The Tribunal also took evidence from Dr Bik, from the Head of the Infectious Diseases Unit, Royal New South Wales Hospital, Dr George Adamidis and the President of the AIDS Council of Australia, Mr Graeme MacGregor. The review applicant was accompanied by his legal adviser, a registered migration agent and an interpreter was present to assist the parties.

EVIDENCE

  1. The Tribunal has had regard to all the material on its file and that of the Department in this matter.
  2. The Tribunal notes that on 4 February 2003 the visa applicant applied for spouse visas on the basis of her relationship with Adrian BRAND (the review applicant), an Australian citizen, who was born in Sydney on 14 February 1965. The review applicant sponsored the visa applicant as his spouse.
  3. In her visa application, the visa applicant claimed to have met the review applicant in Elysium at work in November 2001, that their relationship began in December 2001 and that they later married in Elysium on 11 January 2003.
  4. On 13 August 2003 the delegate found that the initial criteria for the grant of a subclass 309 visa had been met and the visa applicant’s and the sponsor’s relationship was genuine and continuing and medical examinations were requested for the visa applicant.
  5. On 2 December 2003 a Medical Officer of the Commonwealth found that the visa applicant did not satisfy public interest criterion 4007 because she is a person who is HIV positive, who would require intensive, lifelong specialist management and medications and eventually, palliative care. On the same day the Medical Officer of the Commonwealth stated that the estimated lifetime cost of care for the visa applicant would be $250,000.
  6. On 15 December 2003 the delegate refused to grant a spouse visa to the visa applicant on the basis that the visa applicant did not satisfy public interest criterion 4007 and therefore failed to satisfy clause 309.223.
  7. On 13 January 2004 the review applicant lodged an application with the Tribunal for review of the delegate’s decision.
  8. On 4 May 2004 the Tribunal wrote to the review applicant pursuant to section 359 of the Act, offering him the opportunity to seek a review of the Medical Officer of the Commonwealth’s opinion and inviting him to provide further medical evidence if a medical review was requested.
  9. On 19 May 2004 the review applicant’s migration agent wrote to the Tribunal confirming that a medical review was sought and provided a medical report of 8 May 2004 from the visa applicant’s treating doctor, Dr Thang Bu BIK of the Elysian Government Health Service in Elysium.
  10. The treating doctor’s report contained the following information:
  • The doctor had provided treatment for the visa applicant in consultation with infectious diseases specialist, Dr Tim Song of the Red Cross, since she was first diagnosed as HIV positive in December 2003. The visa applicant began basic antiretroviral treatment as soon as she was diagnosed (within 5 months of becoming infected with HIV) and purchased the medication, AZT, with the financial assistance of the review applicant. The visa applicant had been consistently compliant with treatment and was in good physical health on relatively simple antiretroviral therapy, her viral load was low (200 copies in a millilitre of blood) and her CD4 lymphocyte count (920 cells per cubic millilitre of blood) was high.
  • The visa applicant’s progress to date had been very good and her condition was stable given the basic medical treatment (AZT), which she was taking, as directed, with minimal side-effects.
  • The visa applicant’s emotional wellbeing had been adversely affected by the social stigma, which attached to being infected with HIV in Elysium. The lack of family support for the visa applicant in Elysium, in particular, meant that she was very reliant on her husband, who could only visit irregularly from Australia and was otherwise limited to providing her with emotional support over the telephone. While the visa applicant was coping well, in the long-term, this additional stress from the lack of support could have deleterious effects on her overall health and well-being.
  • The visa applicant may be able to maintain her good health well into old age if she is able to access combination therapy or H.A.A.R.T. in Australia and pursued a healthy lifestyle, as she was currently doing in Elysium. If Ms Thi were granted a visa, it would not result in undue cost to the Australian community.
  1. On 9 September 2004 the RMOC assessed the visa applicant as failing to meet the health criteria prescribed in the Regulations. The RMOC stated this was in part because the visa applicant is a person with the HIV infection and would require intensive, ongoing health care or community services, which would be likely to result in a significant cost to the Australian community. The RMOC estimated the likely cost to the Australian community to be $210,000.
  2. In his submission of 4 November 2004 the review applicant’s migration agent stated that any costs incurred by the Australian community as a result of the visa applicant’s medical treatment would be small and would be outweighed by the substantial contribution the visa applicant would make to the Australian community if granted the visa. The agent submitted that the visa applicant would be unable to obtain the necessary medical treatment in Elysium, which would improve her quality of life and her medium to long-term prognosis.
  3. On 28 April 2005 the migration agent again wrote to the Tribunal to advise that the visa applicant was pregnant and provided a medical certificate completed by Dr Bik giving the expected date of confinement as 3 December 2005.
  4. At the hearing of the Tribunal the review applicant stated that he and the visa applicant first became aware of the visa applicant’s HIV status as part of the visa application process.
  5. The review applicant confirmed he was employed as a secondary school teacher and was being considered for a promotion to the position of Head of Department by his current employer. The review applicant stated that his income from earnings and his share in 5 investment properties with his sisters is sufficient to support himself, the visa applicant and their child.
  6. The review applicant stated that the visa applicant has held health insurance since 2003 prior to becoming infected with HIV and would maintain her health insurance in the future.
  7. The review applicant stated that if the visa applicant is permitted to migrate to Australia, he would continue to pay for her medication in addition to coverage she would receive for medical expenses through private health insurance.
  8. The review applicant confirmed that his family was aware of the visa applicant’s HIV status, and would contribute personally and financially to the visa applicant’s care if required.
  9. The review applicant informed the Tribunal that his career in education in Australia was advancing and he and his sisters contributed to the Australian community through various social outreach activities, including telephone counselling and work in soup kitchens. The review applicant stated his understanding that the visa applicant would also contribute to the Australian economy and general community through paid and unpaid work as she did currently in Elysium.
  10. The review applicant stated that the visa applicant is very important in his life, and his family is keen for her to join them in Australia, particularly so that their baby can be born in Australia where better medical treatment is available.
  11. The review applicant indicated that he would be unable to continue his career at its current level if he relocated to Elysium. The review applicant stated that if he relocated to Elysium, he and the visa applicant would have very little social support, as he had a poor command of the local Elysian language and the visa applicant had experienced ostracism by relatives and acquaintances including within her local church community, as a result of her HIV positive status and had also faced some prejudice in her voluntary work because she was known to have contracted HIV. The review applicant anticipated he would experience a significant loss of social contact if he were to relocate to Elysium, as he was currently active in Australia in the local cricket club and the local church.
  12. International movement records indicate that the review applicant made several visits overseas prior to and since the review application with the most recent trip to Elysium from 1 March 2005 to 15 March 2005.
  13. The visa applicant confirmed that her work and daily routine have been unaffected since she was diagnosed HIV positive in December 2003 and she maintains a healthy lifestyle. The visa applicant confirmed she continued to take the drug, AZT regularly as directed by Dr Bik, and had not required any more intensive treatment nor hospitalisation since contracting HIV.
  14. The visa applicant confirmed that she had experienced discrimination as a result of being known to be HIV positive and had no family support and very little social contact outside work. The visa applicant relied particularly on her husband’s support, a positive mental attitude and her faith to sustain her.
  15. The visa applicant confirmed her intention to remain at home with her child for the first two to four years as a full-time mother and then resume her career in education, noting her willingness to undertake further study required to have her qualifications recognised in Australia.
  16. Dr Bik confirmed the visa applicant’s viral load remained low and she continued on the basic monotherapy with the drug, AZT, which he had prescribed since she was diagnosed in December 2003. He noted that the visa applicant’s medium to long-term prognosis was not good if she remained in Elysium where she only had access to monotherapy rather than the superior combination therapy available in Australia. Dr Bik indicated the quality of life and medium to long-term prognosis for the visa applicant would be better in Australia. Dr Bik confirmed the chances of the visa applicant’s baby being born and remaining HIV negative were good but would be better in Australia where the visa applicant and the child would have access to better quality treatment.
  17. Mr McGregor and Dr Adamidis similarly gave evidence that the quality of medical treatment in Australia compared to Elysium was such that both the visa applicant and her child would benefit if she were granted the visa. Dr Adamidis confirmed it was more likely than not that the visa applicant would develop AIDS and if she were living in Australia with access to the latest drugs, it would be likely to occur more than 10 years from now. However, with proper treatment and medical advances, the visa applicant may be fortunate and be one of the 2% of people with HIV who have no signs nor symptoms of HIV many years after diagnosis. In relation to the medication available in Australia, the Tribunal notes that in Kapambwe, the Federal Court found this was not a cost associated with health care.

FINDINGS

  1. At the time the visa application was lodged Partner (Provisional) (Class UF) contained the following subclasses: subclass 309 (Spouse or Partner) and subclass 310 (Interdependency (Provisional). The only subclass in respect of which any claims have been advanced is subclass 309. There is no evidence to suggest that the visa applicant meets the key criteria for a subclass 310 visa.
  2. At the time of application the visa applicant was validly sponsored by Adrian Brand, who is an Australian citizen.
  3. Clause 309.225 requires that the visa applicant satisfies a number of public interest criteria at the time of decision, including public interest criterion 4007, which requires that:

(1)     The applicant:

(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

TRANSITIONAL PROVISIONS

(c) subject to subclause (2), is not a person who has a disease or condition to which the following subparagraphs apply:

(i)     the disease or condition is such that 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 of the applicant’s proposed stay in Australia;

(ii)     provision of the health care or community services relating to the disease or condition 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, the applicant has provided such an undertaking.

(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.

  1. Regulation 2.25A provides that the Tribunal must take the opinion of a Medical Officer of the Commonwealth as correct for the purposes of deciding whether the provision of health care or community services relating to the visa applicant’s condition would be likely to result in a significant cost to the Australian community or prejudice the access of an Australian citizen or permanent resident to health care or community services. Following the decision of the Federal Court in Kapambwe’s case, the Tribunal finds the RMOC’s opinion in this case is valid. Accordingly, the Tribunal accepts the opinion of the Review Medical Officer of the Commonwealth of 9 September 2004 that the provision of health care or community services required during the visa applicant’s proposed stay in Australia would be likely to result in a significant cost to the Australian community with the amount of the likely cost estimated to be $210,000. This figure is some $40,000 less than the original estimate of $250,000 in the MOC’s assessment of 2 December 2003.
  2. The Tribunal notes that the opinion of the Review Medical Officer of the Commonwealth does not raise as an issue the question of whether the visa applicant’s condition would be likely to prejudice the access of an Australian citizen or permanent resident to health care or community services. It therefore remains for the Tribunal to determine only whether the likely cost to the Australian community of the provision of health care or community services to the visa applicant would be undue.
  3. In order to decide whether the costs are ‘undue’, the Tribunal must first consider what ‘undue’ means in this context. As the term is not defined in the Act, the Tribunal has had regard to the Macquarie Dictionary, which lists the following meanings in two groups, “1. Too great; unwarranted; excessive. 2. Not proper, fitting or right; unjustified.” The Tribunal has had regard to other Tribunal decisions including Re Mr PGG [2000] MRTA 386 and XK [2001] MRTA 4630. In those decisions and previous IRT decisions, ‘undue’ is also taken to mean ‘unreasonable’ or ‘unjustifiable in the circumstances’.
  4. The Immigration Review Tribunal in Re Papaioannou (IRT Decision 193, 19 April 1991) considered the interpretation of the phrase, ‘undue harm or undue cost’, and remarked with reference to the Oxford English Dictionary as follows:

The ordinary natural meaning of ‘undue’ includes the sense “not properly owing or payable”, “not appropriate or suitable”, “not in accordance with what is just or right, unjustifiable”, and “going beyond what is appropriate, warranted or natural; excessive” … ‘undue’ in its ordinary meaning conveys something that is greater than is warranted or is unreasonable or unnecessary in light of all the relevant circumstances.

  1. The matters to be taken into account when considering a waiver of public interest criterion 4007 were considered by the Full Court of the Federal Court in Bui v Minister for Immigration and Multicultural Affairs [1999] FCA 118 (1 March 1999). The Court stated:

There are obviously broad judgements to be made in determining what amounts to “undue cost” and “undue prejudice”. Reading together the criteria in Item 4007(1)(c)(i) and the criterion for waiver in 4007(2)(b)(i) it is apparent that the occasion for the exercise of the waiver will only arise where it is already established that the cost to Australia, if the visa is granted, is likely to be “significant”. The Minister will therefore need to be satisfied that a likely “significant” cost will nevertheless not be “undue”. In the former determination he or she is evidently to be bound by the opinion of a Medical Officer of the Commonwealth.

The evaluative judgment whether the cost to the Australian community or prejudice to others, if the visa is granted, is “undue” may import consideration of compassionate or other circumstances. It may be to Australia’s benefit in moral or other terms to admit a person even though it could be anticipated that such a person will make some significant call upon health and community services. There may be circumstances of a “compelling” character, not included in the “compassionate” category that mandate such an outcome. But over and above the consideration of the likelihood that cost or prejudice will be “undue” there is the discretionary element of the ministerial waiver. And within that discretion compassionate circumstances or the more widely expressed “compelling circumstances” may properly have a part to play.

  1. According to policy, factors which can be taken into account when assessing whether the estimated cost is undue include:

The opinion of the MOC

The Tribunal has had regard to the RMOC’s opinion of 9 September 2004, which is binding upon it. The RMOC assessed the likely cost of health treatment or community services to be provided to the visa applicant as significant and estimated an amount of $210,000.

Compelling circumstances

The term ‘compelling’ is not defined in the legislation. However, the relevant policy provides that to be considered compelling, circumstances should go beyond that which is required by the threshold regulatory criteria. Similarly, in Minister for Immigration and Multicultural Affairs v Dunne [1999] FCA 204, Branson J considered that the term “compelling reasons” involved something additional to the basic prerequisite criteria for the grant of the visa. The Tribunal finds that the visa applicant’s pregnancy constitutes ‘compelling circumstances’ of the kind contemplated by the policy guidance and Dunne’s case, as circumstances which go beyond the visa criteria.

The degree of care required

The RMOC has assessed that the visa applicant would require intensive, ongoing health care or community services while resident in Australia.

The medical evidence from the visa applicant’s doctor and Dr Adamidis establishes that the visa applicant has been asymptomatic since commencing anti-retroviral therapy in December 2003. The visa applicant has not required hospitalisation or had any AIDS defining conditions since 2003 and has adhered to and responded well to the basic level treatment available in Elysium.

Dr Bik reported that if the visa applicant remains on AZT ‘monotherapy’, which is the most advanced HIV treatment available in Elysium, her medium to long-term prognosis was, at best, uncertain and should the visa applicant require additional, more intensive care in the future, such care was not available in Elysium.

Dr Adamidis noted that the visa applicant currently received a modest level of care and that if she were resident in Australia she would be prescribed different treatment, which would improve her medium to long-term prognosis. Dr Adamidis advised it was more probable than not that the visa applicant would develop AIDS and if she were in Australia, it was more likely than not that it would occur in more than 10 years time. If she developed an opportunistic infection, more intensive care including hospitalisation could become necessary. The Tribunal finds that a modest degree of care is currently required but notes that it is likely that the degree of care required will increase in the long-term with the visa applicant potentially requiring hospitalisation if she develops an opportunistic infection.

Dr Adamidis noted that it was more likely than not that the visa applicant’s child would be born without HIV but that mother and baby would receive better medical care in Australia and the visa applicant’s health status would be best served by her moving to Australia as soon as possible.

Available private care and support

The review applicant gave evidence that his two unmarried sisters, who were present at the hearing and provided statutory declarations, have offered to care for the visa applicant on a full-time basis should that be required, such that the visa applicant would be cared for at no public cost. The review applicant’s sisters have also offered to help with child care for the couple’s child after the birth. The Tribunal finds that a significant level of private care and support would be available to the visa applicant should her condition deteriorate.

Other factors

Other factors that should be taken into account include (but are not limited to):

• the education and occupational needs of, and prospects for the applicant in Australia over the whole period of intended stay;

The visa applicant has a good chance of securing employment in her field as a teacher’s aide with church schools in Australia. The visa applicant would be required to do a TAFE certificate course in order to gain accreditation as a teacher’s aide in Australia and based on initial inquiries, could enrol in such a bridging course on a part-time basis while working full-time. The applicant therefore has good prospects for employment based on her current qualifications and experience and is willing to undertake further study in Australia to further secure those prospects.

• the potential for the applicant’s state of health to deteriorate, taking into account not only the known medical factors but also influences such as the strains of adjusting to a new environment, life-style, occupation etc (as applicable to the visa class and the individual);

The RMOC reported that the visa applicant would require intensive, ongoing health care or community services. In evidence before the Tribunal, Dr Adamidis advised that the visa applicant’s condition was stable and likely to remain so for at least 10 years but it was more likely than not that the visa applicant would develop AIDS at some stage in the future. Dr Bik noted the medium to long-term prognosis for the visa applicant was worse if she remained in Elysium on the medication available there (monotherapy). The review applicant acknowledged at the Tribunal hearing that migrating to Australia would be a challenge for the visa applicant but that they expected she would have a better life in Australia. Both the review applicant and the visa applicant noted her positive mental attitude and her good English skills, which were evident from the visa applicant’s evidence at the hearing.

• the overall lifetime (or lesser period according to the intended length of stay) charge to Australian public funds;

The RMOC estimated the likely cost to the Australian community as $210,000. The review applicant presented evidence that his sisters were willing to care for the visa applicant should her condition deteriorate necessitating more intensive care, reducing the potential cost to Australian public funds. The visa applicant’s current health insurance covers her medical condition and would meet some of the associated expenses (noting that any expenses covered by Medicare draw upon Australian public funds).

• factors preventing the sponsor from joining the applicant in the applicant’s own country;

The review applicant has a poor command of the local Elysian language. While he could obtain temporary employment without much difficulty, he has no prospect of promotion in Elysium compared to the career progression available to him in Australia. The review applicant’s family are all in Sydney and are supportive of the marital relationship. The review applicant has substantial social networks in Australia while the visa applicant’s family is not supportive of the relationship and her social networks are minimal.

• whether there are Australian children of the relationship who would be adversely affected by a decision not to waive;

The visa applicant is pregnant with the couple’s first child, which she is due to deliver on 3 December 2005. If the waiver were not exercised, the child would not have access to the superior medical services available in Australia and its quality of life would be diminished as its parents’ earning capacity and family and social support networks would be at a substantially lower level in Elysium than they could enjoy in Australia and its mother’s health would be negatively impacted by the inferior treatment available to her in Elysium.

• the location and circumstances of family members of the applicant and the sponsor;

The visa applicant’s sister is located in another village in Elysium some 3 hours drive away and the applicant has not had contact with her since her marriage to the review applicant since January 2003. The applicant’s extended family reside in her village, Arcadia, but she has had limited contact with them since she was diagnosed HIV positive in December 2003.

The review applicant’s two sisters reside in Sydney and are very supportive of the parties’ relationship and travelled to Elysium to attend the wedding. The review applicant’s family have offered to support the visa applicant when she comes to Australia.

• the merits of the case eg the strength of any humanitarian or compassionate factors (reasonable weight is to be given to humanitarian circumstances).

The visa applicant is pregnant with the couple’s first child and could access superior medical treatment and benefit from the support of the review applicant and his family in the lead up to and after the birth.

The visa applicant has been involved in voluntary work with children with learning difficulties and would engage in similar work in Australia. The review applicant is also involved in voluntary work and would not be able to continue this work if he moved to Elysium.

• the immigration history of the applicant and sponsor, including eg compliance to date with immigration requirements and any undertakings.

The visa applicant has never travelled outside Elysium.

The review applicant has made numerous visits to Elysium and has always abided with the conditions of his visas for travel.

  1. The Tribunal notes that the visa applicant is currently in good health and there is no evidence to indicate that she will not maintain her current health status for the foreseeable future. However, the Tribunal is unable to predict whether the visa applicant will continue to respond well to medication, and must take into account the possibility that her health may deteriorate in the long-term, resulting in an increased need for medical or community services. The Tribunal accepts, that if the visa applicant’s medical needs increase, a proportion of those costs would be met by the visa applicant’s health insurer and not by the Australian community. The Tribunal is satisfied that the review applicant is in a secure financial position to continue paying the visa applicant’s health insurance if the visa applicant is unable to maintain employment in the future, and would also be able to meet the cost of any additional expenses not covered by health insurance. The Tribunal notes that the review applicant provided documentary evidence of his contribution of $15,000 for the cost of the visa applicant’s medical care since 2003, and it is satisfied that the review applicant is willing and able to continue to provide all necessary financial support for the visa applicant in the future.
  2. The Tribunal accepts that the visa applicant is currently well and would be able to secure employment in Australia for as long as she remains well.
  3. The Tribunal accepts that if the review applicant joined the visa applicant in Elysium on a permanent basis, he would be unable to gain employment at the level he enjoys in Australia and would not have any family support nor be likely to enjoy the support of friends or maintain an acceptable level of social contact such as he enjoys in Australia, given his poor command of the local Elysian language and the discrimination the visa applicant experiences as a result of her HIV status. The Tribunal finds, therefore, that if the review applicant relocates to Elysium, the parties’ financial future would be less secure and the quality of their lives in emotional and social terms would be greatly diminished. It follows that the review applicant would be unable to continue purchasing medication for the visa applicant and she would most likely suffer a significant deterioration in her medical condition. The medium to long-term prognosis for her should she move to Australia is much more positive.
  4. The Tribunal gives considerable weight to the review applicant’s demonstrated long-term personal and financial commitment to maintain the visa applicant’s current good health, despite her HIV status since 2003. The Tribunal gives considerable weight to the documentary evidence of the review applicant’s ability to meet the visa applicant’s expenses in the future, and is satisfied that he is willing and able to meet those expenses.
  5. The Tribunal finds that the impact of the refusal of the spouse visa application on the review applicant would be significant, both personally and financially. The Tribunal notes that he has maintained a strong personal commitment to the visa applicant and is satisfied that he would be emotionally distressed if the visa applicant was unable to come to Australia permanently. The Tribunal also notes that the review applicant is seeking a promotion and his career in Australia, which he has built up over several years in Australia, would be negatively impacted if he relocated to Elysium and his financial future would not be assured.
  6. The Tribunal accepts the evidence before it that the medium to long-terms prognosis for the visa applicant would be negatively impacted if the visa were not granted and that she would have access to superior medical treatment in Australia which would improve her quality of life and her baby’s quality of life.
  7. The Tribunal considers the visa applicant’s pregnancy constitutes compelling circumstances in favour of waiving the health requirement in this case.
  8. Taking all of the evidence into account, the Tribunal is satisfied that the reasons for exercising the Tribunal’s discretion to waive the health requirement outweigh the reasons for applying public interest criterion 4007. The Tribunal therefore finds that the cost to the Australian community for the visa applicant’s proposed stay in Australia would not be undue in the circumstances of this case.

CONCLUSION

  1. Given these findings, the appropriate course is to remit the application for the Class UF visa to the Department to consider the remaining criteria for a subclass 309 visa. If the visa applicant is found to meet the remaining criteria, then the visa applicant is entitled to the grant of a subclass 309 visa. It follows that the Department’s decision to refuse the Class BC visa must also be remitted for further consideration.

DECISION

  1. The Tribunal remits the applications made by the visa applicant for a Partner (Provisional) (Class UF) visa and a Partner (Migrant) (Class BC) visa to the Department of Immigration and Multicultural and Indigenous Affairs for reconsideration, with a direction that the visa applicant is to be taken to have met the following criteria for a Subclass 309 (Spouse) provisional visa:

● Paragraph 4007(2)(b) of Schedule 4.

I certify that the preceding 54 numbered paragraphs are a true copy of the Tribunal’s statement of decision and reasons.

Dated: 1 July 2005 for District Registrar

DISCLAIMER: This document is intended only to provide a sense of the decision making processes of the Migration Review Tribunal (MRT). While it resembles an MRT decision in its form, it has no legal effect as a decision of the MRT. Its contents are entirely fictitious and any resemblance to actual persons is purely coincidental. It should not be relied upon as a legal or procedural guide.

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Copyright 2005. Greek/Australian International Legal and Medical Conference.
For more information contact Jenny Crofts at jennycrofts@ozemail.com.au