1620618 (Migration)

[2018] AATA 4084

1620618 (Migration) [2018] AATA 4084 (10 July 2018)

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  1620618

MEMBER:  K. Chapman

DATE AND TIME OF

ORAL DECISION AND REASONS:          10 July 2018 at 5:01 pm (QLD time)

DATE OF WRITTEN RECORD:               31 July 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the visa applicants Parent (Migrant) (Class AX) visas

CATCHWORDS
MIGRATION – Parent (Migrant) (Class AX) visa – Subclass 103 (Parent) – Health criteria – Chronic medical condition – costings by MOC – market data of costings – life expectancy of applicant – second MOC opinion correct – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), r 2.25A, Schedule 2 cl 103.224, Schedule 4 PIC4005

CASES
Ramlu v MIMIA [2005] FMCA 1735
Robinson v MIMIA [2005] 148 FCR 182

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 24 November 2016 to refuse to grant the visa applicants Parent (Migrant) (Class AX) Subclass 103 visas under the Migration Act 1958 (‘the Act’).

1. At the hearing on 10 July 2018 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 24 November 2016 to refuse to grant the visa applicants Parent (Migrant) (Class AX) visas under s.65 of the Migration Act 1958 (‘the Act’).

1. The visa applicants are [names]. They applied for the visas on 28 February 2008. They are the parents of the review [applicant]. The delegate refused to grant the visas on the basis that the first-named visa applicant, that is [name] who will now be referred to as the visa applicant, did not satisfy clause 103.224 of schedule 2 to the Migration Regulations 1994 (‘the Regulations’) because the health criteria in Public Interest Criterion 4005 of schedule 4 to the Regulations was not met. Public Interest Criteria 4005 is also known as PIC 4005.

1. On 5 December 2016, the review applicant applied to the Tribunal for review of the visa refusal decision, providing a copy of that decision with his application. On 20 November 2017, the Tribunal wrote to the review applicant according to section 359A of the Act, inviting him to comment on or respond to the opinion of the Medical Officer of the Commonwealth, dated 17 November 2016, that the visa applicant, [did] not meet the requirements of PIC 4005(1)(c)(ii)(A). The correspondence of 20 November 2017 also offered the review applicant the opportunity to obtain a fresh Medical Officer of the Commonwealth opinion.

1. On 30 November 2017, the Tribunal received a submission challenging the assessment of the Medical Officer of the Commonwealth that the visa applicant's [medical] condition would be likely to require healthcare or community services during his life expectancy which would be likely to result in a significant cost to the Australian community in the areas of healthcare and/or community services. The submission enclosed material including but not limited to medical reports, receipts, projected medical costs, fact sheets, and financial records. The submission also declined the opportunity to obtain a fresh Medical Officer of the Commonwealth opinion.  Further submissions and background material were received by the Tribunal prior to the initial review hearing. All submitted material has been duly considered by the Tribunal.

1. The review applicant initially appeared before the Tribunal on 28 March 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The review applicant confirmed that he understood the interpreter. The Tribunal also observed the review applicant to have an excellent command of the English language. The review applicant was represented in relation to the review by his registered migration agent. At the initial hearing the review applicant submitted further documentary evidence, including but not limited to receipts for medical services and background information relating to medical matters. All submitted material has been duly considered by the Tribunal.

1. The review applicant also requested a new Medical Officer of the Commonwealth opinion be obtained during the initial hearing. On 28 March 2018, the Tribunal wrote to the review

applicant offering him the opportunity to obtain a fresh Medical Officer of the Commonwealth opinion. This offer was accepted. The Tribunal wrote to the review applicant through his registered migration agent on 11 April 2018 and 24 April 2018, requesting that he submit any further material that he wished to be considered by the new Medical Officer of the Commonwealth. No material was received by the Tribunal in response to that email correspondence, and on 4 May 2018, the new Medical Officer opinion was formally requested, with evidence and submissions of the applicant at that time enclosed with the request for the new Medical Officer opinion. A new Medical Officer of the Commonwealth opinion dated 15 May 2018 was duly received by the Tribunal.

1. On 15 May 2018, the Tribunal wrote to the review applicant according to section 359A of the Act, inviting him to comment on or respond to the opinion of the Medical Officer of the Commonwealth dated 15 May 2018, that the visa applicant, [did] not meet the requirements of PIC 4005(1)(c)(ii)(A). On 28 May 2018, the Tribunal received a submission challenging the assessment of the Medical Officer of the Commonwealth's opinion that the visa applicant's [medical] condition would be likely to require healthcare or community services during his life expectancy which would be likely to result in a significant cost to the Australian community in the areas of healthcare and/or community services. The submission enclosed material including but not limited to confirmation that an assurance of support has been lodged, information from the Department of Human Services concerning new residents' waiting periods for Commonwealth payments, an estimate of the visa applicant's medical costs prepared by the review applicant, a note from a chemist concerning the cost of medication, various medical receipts and background information. All submitted material has been duly considered by the Tribunal.

1. The review applicant appeared again before the Tribunal on 10 July 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The review applicant confirmed that he understood the interpreter. The Tribunal observed the review applicant to display an excellent command of the English language at that hearing. The registered migration agent did not attend the second review hearing.

1. The issue in this review is whether the visa [applicant], meets Public Interest Criterion 4005 as required by the criteria for the grant of the visa. PIC 4005 requires the visa applicant in certain circumstances to undergo medical assessment and to be free from diseases or conditions that may impact on the community. The visa applicant in this case was determined by the Medical Officer of the Commonwealth to suffer from [a medical condition] which would be likely to require healthcare or community services during his life expectancy which would be likely to result in a significant cost to the Australian community in the areas of healthcare and/or community services.

1. Public Interest Criterion 4005(1)(a) and (b) require the visa applicant to be free from tuberculosis and free from a disease or condition that is or may result in the visa applicant being a threat to public health in Australia or a danger to the Australian community. Public Interest Criterion 4005(1)(c) requires the visa applicant to be free from a disease or condition which would be likely to require healthcare or community services, or which would meet the medical criteria for provision of a community service during the specified period, and provision of the healthcare or community services regardless of whether it will actually be used in connection with the visa applicant, would be likely to result in a significant cost to the Australian community in the areas of healthcare and community services, or prejudice access of an Australian citizen or permanent resident to healthcare or community services.

1. For certain temporary visas the visa applicant is excluded from the requirement to be free from a disease or condition likely to result in significant cost in the areas of healthcare and community services (see PIC 4005(3)).  As the visa applicant in this case has applied for a

permanent visa, the exclusion provision PIC 4005(3) does not apply and the visa applicant in this case must satisfy PIC 4005(1)(c)(ii)(A). In determining whether a person meets PIC 4005(1)(a), (b), or, (c), regulation 2.25A of the Migration Regulations requires the Tribunal to seek the opinion of a Medical Officer of the Commonwealth 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.

1. Where an opinion of a Medical Officer of the Commonwealth is required, the Tribunal must take it to be correct in accordance with regulation 2.25A(3) of the Migration Regulations. On the evidence before the Tribunal a Medical Officer of the Commonwealth opinion is required. The Tribunal must take the Medical Officer of the Commonwealth opinion as correct, but must first be satisfied that the Medical Officer of the Commonwealth has applied the correct test in forming the opinion. I note the cases of Robinson v MIMIA [2005] 148 FCR 182, and also the case of 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 visa applicant, and the Medical Officer of the Commonwealth must have applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition.

1. The Tribunal must also consider whether the Medical Officer of the Commonwealth has applied the correct period of assessment according to PIC 4005(2). The Medical Officer of the Commonwealth opinion of 15 May 2018 indicates that the visa applicant suffers from [a medical condition]. The Medical Officer of the Commonwealth opinion states that, in the assessor's opinion, the provision of healthcare and/or community services would be likely to result in a significant cost to the Australian community in the areas of healthcare and/or community services. That estimated total cost is identified by the Medical Officer of the Commonwealth to be $103,500, which is comprised of $34,500 for medical services and $69,000 for pharmaceuticals. The life expectancy of the visa applicant is estimated by the Medical Officer of the Commonwealth to be 23 years.

1. The estimated cost breakdown was raised during the second review hearing with the review applicant according to the procedure in section 359AA of the Migration Act, and he provided a response at that second hearing which has been duly considered by the Tribunal. The review applicant's oral evidence during the two review hearings may be summarised as follows: His father has consulted medical specialists regarding his [medical] condition. It is not disputed that the medical condition exists. Rather, the review applicant disputes the costings provided by both Medical Officer of the Commonwealth opinions. The review applicant maintains that he has obtained market data as to the cost of medical services and pharmaceuticals regarding his father's medical condition.

1. The review applicant contends that this market data should be preferred over the costings provided by both Medical Officer of the Commonwealth opinions. The Tribunal notes that in response to the section 359AA information, that being the most recent Medical Officer of the Commonwealth costings, the review applicant submitted that his market data regarding costs is below that applied by the Medical Officer of the Commonwealth in terms of the costings developed by the Medical Officer of the Commonwealth. The review applicant estimates the total cost of medical services and pharmaceuticals for his father to be

   $2202.53 per annum. He submits that he calculated these costs from his consultation with medical practitioners and a pharmacist. The review applicant also submitted that his assurance of support which has been lodged will reduce two years from any costs incurred by the visa applicant.

1. Following an adjournment at the second review hearing, the Tribunal advised the review applicant that Departmental policy indicates the significant cost threshold to be $40,000 per annum, and that on a life expectancy of either 23 years or 21 years, the latter accounting for the assurance of support period, the projected cost still exceeds $40,000 per annum. The review applicant then took issue with the difference in the life expectancy between the first Medical Officer of the Commonwealth opinion, being 16 years, and the second Medical Officer of the Commonwealth opinion, being 23 years. The Tribunal asked the review applicant on several occasions why it should not prefer the data provided in the Medical Officer of the Commonwealth opinions, specifically the most recent opinion of 15 May 2018, to the data that he provided.  The review applicant's responses contained the central theme of his contentions in relation to this case, that is that the Medical Officer of the Commonwealth opinions rely upon a hypothetical figure, whereas his estimated costings rely upon market data that he has obtained.

1. The Tribunal has very carefully considered the documentary and oral evidence submitted in this case. In particular, the Tribunal notes that it provided the opportunity for the review applicant to obtain a second Medical Officer of the Commonwealth opinion. It also wrote to the review applicant through his registered migration agent on two occasions in April 2018 to ascertain whether any further information was to be put before the new Medical Officer of the Commonwealth. No response was received to that correspondence in April 2018. The Tribunal notes that it sent a significant body of material, primarily comprising the submissions and evidence received from the review applicant as at that time, to the new Medical Officer of the Commonwealth for their consideration. The Tribunal is satisfied that this material was taken into account by the second, most recent Medical Officer of the Commonwealth opinion.

1. The Tribunal notes that the review applicant advised that his most recent market estimate of costs compiled by him and a note from a pharmacist indicating the cost of medication was not before the second Medical Officer of the Commonwealth, as it was submitted in response to the section 359A correspondence sent following the receipt of the second Medical Officer of the Commonwealth opinion. The Tribunal has carefully considered this circumstance and is satisfied that this material does not need to be sent back to the second Medical Officer of the Commonwealth, as it prefers the evidence of the Medical Officer of the Commonwealth with respect to costings, given its official source, to the material created and sourced by the review applicant using his own resources.

1. The Tribunal notes also that it provided many opportunities for further information to be put before the second Medical Officer of the Commonwealth, and indeed much material was in fact put before the second Medical Officer of the Commonwealth, and that overall, in the circumstances of the case, there was no utility in sending further material to the second Medical Officer of the Commonwealth. The Tribunal notes that the first Medical Officer of the Commonwealth’s opinion provided a costing of $104,000, whilst the second Medical Officer of the Commonwealth opinion provided a costing of $103,500, and that both figures were discussed with the review applicant at the hearings.

1. Further, the Tribunal notes that it has not paid regard to the first Medical Officer of the Commonwealth opinion in making its decision, given that it was agreeable to engaging a second Medical Officer of the Commonwealth opinion. Accordingly, the Tribunal has based its decision on the Medical Officer of the Commonwealth costings of $103,500 regarding the second Medical Officer of the Commonwealth opinion of 15 May 2018.  The Tribunal has had regard to the Federal Court decisions in Robinson v MIMIA [2005] FCA 1626, and also the case of Ramlu v MIMIA [2005] FMCA 1735, and is satisfied that the Medical Officer of the Commonwealth did not apply the wrong test in this matter.

1. Specifically, the Tribunal is satisfied that the Medical Officer of the Commonwealth opinion identifies the visa applicant's condition to which the Public Interest Criteria have been applied, has ascertained the form or level of the condition suffered by him, has applied the correct period of assessment according to PIC 4005(2), being the life expectancy of the visa applicant from the time the permanent visa application has been made, and has applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition. The Tribunal is also satisfied that the Medical Officer of the Commonwealth opinion of 15 May 2018 relies upon appropriate official data as to costs.

1. The Tribunal is therefore bound to accept the final assessment of the second Medical Officer of the Commonwealth opinion to be correct for the purposes of deciding whether the visa applicant satisfies the relevant health criterion. No waiver of PIC 4005 is available. Accordingly, based on the opinion of the Medical Officer of the Commonwealth dated 15 May 2018, the visa applicant does not satisfy Public Interest Criteria 4005(1)(c). As the visa applicant has not satisfied the requirements of Public Interest Criterion 4005, the Tribunal must affirm the decision under review. It follows that the secondary visa applicant cannot be granted the visa either.

DECISION

1. The Tribunal affirms the decision not to grant the visa applicants Parent (Migrant) (Class AX) visas.

K. Chapman Member