1509533 (Migration)

[2016] AATA 3203

1509533 (Migration) [2016] AATA 3203 (4 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Marie Lucile Salon

CASE NUMBER:  1509533

DIBP REFERENCE(S):  CLF2012/87827

MEMBER:Kira Raif

DATE:4 February 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant an Aged Parent (Residence) (Class BP) visa.

Statement made on 04 February 2016 at 4:28pm

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 30 June 2015 to refuse to grant the applicant an Aged Parent (Residence) (Class BP) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of Mauritius born in September 1932. The applicant applied for the visa on 26 April 2012. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.804.225 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. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 4 February 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s daughters and son in law. The Tribunal hearing was conducted with the assistance of an interpreter in the French and English languages. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. The issue in this review is whether the visa 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 applicant, in certain circumstances, to undergo medical assessment, and to be free of certain diseases or conditions that may impact on the community.

5. 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).

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

7. 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 the applicant free from the relevant diseases or conditions?

8. The applicant provided to the Tribunal a copy of the primary decision. It indicates that during the processing of the application the applicant was required to undertake health examinations and a Medical Officer of the Commonwealth formed the view that she did not meet the health requirements. At the applicant’s request, a second opinion was arranged and the review MOC again formed the view that the applicant did not met the health requirements in PIC 4005.

9. 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.

10. The applicant provided to the Tribunal a number of medical reports relating to her condition. The Tribunal acknowledges that evidence but, as noted above, must take the valid opinion of the MOC to be correct. The applicant has not satisfied the Tribunal that the MOC is invalid. Accordingly, based on the opinion of the MOC, the applicant does not satisfy public interest criterion 4005(1)(c).

11. The applicant’s daughter provided a number of statements to the Tribunal outlining the compassionate circumstances affecting the family. The Tribunal also received oral evidence from the applicant’s daughters and son in law concerning the compassionate circumstances. The Tribunal acknowledges that evidence but is unable to recommend that the visa be granted on compassionate grounds. Having found that the applicant does not meet one of the criteria for the grant of the visa, the Tribunal has no option but to affirm the decision under review.

12. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The Tribunal is mindful that the applicant is 83 years of age and her mobility is limited. She is presently confined to a wheelchair. The Tribunal notes that her two daughters, as well as grandchildren, reside in Australia. The applicant’s evidence to the Tribunal is that she cannot return to her country because she has nothing there. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3). The Tribunal has formed the view that there are compassionate circumstances in this case. The Tribunal will refer the matter to the Department.

    Conclusion

13. As the applicant has not satisfied the requirements of PIC 4005, the Tribunal must affirm the decision under review.

    DECISION

14. The Tribunal affirms the decision not to grant the applicant an Aged Parent (Residence) (Class BP) visa.

    Kira Raif
    Senior Member