1503670 (Migration)

[2016] AATA 3097

1503670 (Migration) [2016] AATA 3097 (27 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Krishna Hari POKHAREL
Mrs Jayanti SHRESTHA POKHAREL
Miss Avaha POKHAREL

CASE NUMBER:  1503670

DIBP REFERENCE(S):  BCC2012/791574

MEMBER:Glen Cranwell

DATE:27 January 2016

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Residence) (Class VB) visas.

Statement made on 27 January 2016 at 11:06am

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 27 February 2015 to refuse to grant the applicants Skilled (Residence) (Class VB) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 16 July 2012. The delegate refused to grant the visa on the basis that the third named applicant did not satisfy cl.885.226 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4005 of Schedule 4 to the Regulations was not met.

3. The applicants appeared before the Tribunal on 27 January 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

4. The applicants were represented in relation to the review by their registered migration agent.

5. The representative requested a postponement with a view to seeking a third opinion of a Medical Officer of the Commonwealth.  The Tribunal notes that 2 previous opinions have been obtained.  The Tribunal further notes that the application for review was lodged on 15 March 2015, and 9 months later the applicant has yet to even request a further opinion.  It is apparent from the representative’s letter dated 8 December 2015 that the representative only received instructions to act on that date.  The representative indicated that he was in the process of collating the third named applicant’s medical records, and that he had nothing of substance to put before the Tribunal at this point.  The Tribunal is not minded to reward the applicant’s failure to take steps between March and December 2015 with a postponement, particularly in circumstances where the applicant has previously obtained a second opinion.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this review is whether the third named applicant meets Public Interest Criterion (PIC) 4005 as required by the criteria for the grant of the visa. Public Interest Criterion 4005, as it applies to this case, is extracted in the attachment to this decision. It requires the applicants, in certain circumstances, to undergo medical assessment, and to be free of certain diseases or conditions that may impact on the community.  The third named applicant in this case has been diagnosed with a developmental delay.

   Is the applicant free from the relevant diseases or conditions (PIC 4005(1)(a), (b), (c))?

8. Public interest criterion 4005(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.

9. Public interest criterion 4005(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 service are excluded from this consideration: PIC 4005(3).

10. As the applicant in this case has applied for a permanent visa, the exclusion provision in PIC 4005(3) does not apply.

11. In determining whether a person meets PIC 4005(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 a MOC opinion required?

12. On the evidence before the Tribunal, a MOC opinion is required.  As noted above, the Tribunal must take the MOC opinion as correct, but must be first be satisfied the MOC has applied the correct test in forming the opinion: Robinson v MIMIA (2005) 148 FCR 182 and Ramlu v MIMIA [2005] FMCA 1735. That is, 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.

13. Reports of MOCs dated 26 June 2014 and 18 February 2015 state the third named applicant has a mild development delay. The opinion states her condition is a disease or condition to which paragraphs 4005(1)(c)(ii)(A) in Schedule 4 of the Regulations apply.

14. The Tribunal has had regard to the Federal Court decisions and is satisfied that the MOC did not apply the wrong test in this matter.

15. Accordingly, based on the opinion of the MOC, the Tribunal finds that the third named applicant does not satisfy PIC 4005(1)(c)(ii)(A). 

16. Accordingly, based on the opinion of the MOC, the first named applicant does not satisfy cl.885.225.

17. Given the findings above, the Tribunal must affirm the decision under review.

    DECISION

18. The Tribunal affirms the decision not to grant the applicants Skilled (Residence) (Class VB) visas.

    Glen Cranwell
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    Schedule 4

    4005(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)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 (2); 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.

    (2)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.

    (3)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 (2) (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.