1703254 (Migration)

1703254 (Migration) [2018] AATA 1039 (8 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1703254
COUNTRY OF REFERENCE:                  Burma (Myanmar)
MEMBER:Hugh Sanderson
DATE:8 March 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:
·PIC 4007(1) for the purposes of cl.101.223 of Schedule 2 to the Regulations; and
·Regulation 2.03AA for the purposes of satisfying Public Interest Criteria 4001 and 4002 for the purpose of meeting cl.101.223 of Schedule 2 to the Regulations.

Statement made on 08 March 2018 at 2:48pm

CATCHWORDS
Migrant – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – Stateless – Public Interest Criterion 4007 – Medical assessment – Public Interest Criterion 4001 – Police certificate – Criminal history – Character test – Whether reasonable for applicant to provide statement from all relevant countries
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 2.03AA, 2.25A, Schedule 2, cl.101.223, Schedule 4, PIC 4001, PIC 4007
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.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] January 2017 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa [in] December 2014. The delegate refused to grant the visa as the visa applicant did not satisfy cl.101.223 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. The delegate was also not satisfied that the applicant passed the character test in PIC 4001 as they had not provided a statement from an appropriate authority in a country where the person resides, or has resided, that provides evidence about whether or not the person has a criminal history as required in r.2.03AA.
Background
The review applicant is a Rohingya who was born in Burma. He first entered Australia in 2010 and applied for a protection visa, which was granted to him. He has since become an Australian citizen. He has provided to the Department of Immigration a copy of his Australian passport. When he applied for a Protection visa he set out details of his family, which included details of the visa applicant which were consistent with the details provided in the current application.
The visa applicant is the review applicant’s son. He was born in Burma; however, as he is a Rohingya he is not recognised as a citizen of Burma and is stateless. He stated that he was born in [year] and is currently [age] years old. At the time of the application he was [age] years old.
The visa applicant travelled by boat to [Australia] in December 2014. He was then transferred to Manus Island in Papua New Guinea where he was when the current application was filed. He was held in a detention centre on Manus Island.
The Department wrote to the applicant [in] July 2016 requesting further information in support of the application, including a complete medical assessment for the visa applicant, police clearance certificates for all countries the visa applicant had resided in and an Australian Federal Police clearance certificate for the sponsor. These documents were not provided by the visa applicant to the Department.
The delegate who considered the application noted that the applicant had not provided the necessary documentation. Accordingly, the delegate found the applicant did not meet PIC 4007 in relation to the health criteria or r.2.03AA for PIC 4001 in relation to the character test. Therefore the applicant did not satisfy cl.101.223 and refused the application.
Information to the Tribunal
DNA testing took place confirming the paternity of the visa applicant. Further documents were provided to the Tribunal by the review applicant in support of the application. This included the following:
·National Police Certificate dated [in] September 2017 certifying that there were no disclosable Court outcomes recorded against the name of the review applicant;
·Royal Papua New Guinea Constabulary report dated [in] November 2017 revealing nothing to the detriment for the review applicant, whose name was given as ‘[Visa Applicant name variant 1]’; and
·DNA parentage results dated [in] November 2017 showing a relative chance paternity of almost 100% for the review applicant and the visa applicant.
The review applicant appeared before the Tribunal on 28 February 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Rohingya and English languages. The review applicant was represented in relation to the review by his registered migration agent who attended the hearing.
The review applicant said the visa applicant has never held a passport as he is stateless. He left Burma by travelling to [Country 1] where he remained for two to three weeks before going by boat to [Country 2]. He was in [Country 2] for four to five days as he [travelled] to [Country 3]. He was in [Country 3] for about five weeks before travelling to [Country 4]. He was in [Country 4] for about six to seven months before travelling by boat to [Australia]. He said that at no time did the visa applicant apply to enter those countries or have any authority to reside in those countries. He said that he was always travelling with the people smugglers. He said the visa applicant did not have any trouble with the authorities or anyone else over this period.
The review applicant said that his wife died in [year]. [Family details deleted.]
The review applicant said that it was impossible for his son to obtain a report from the Medical Officer of the Commonwealth while he was in detention on Manus Island. He said that he had since travelled to [another location] where the required medical assessment was carried out and he provided the DNA samples for assessment. The review applicant said that he had not received any details of the findings of the medical assessment and he believed that these would be provided to the Department. It was noted that the Tribunal had not received any information from the review applicant or the Department in respect of the medical assessment.
After the hearing, further documents were provided to the Tribunal including the following:
·Identification card in the name ‘[Visa Applicant name variant 1]’;
·Notice of Refugee Determination from the Ministry of Foreign Affairs and Immigration of Papua New Guinea for the visa applicant in the name ‘[Visa Applicant name variant 2]’;
·Transferee interview of the visa applicant stated [in] September 2014 using the name ‘[Visa Applicant name variant 2]’; and
·Offshore Processing Centre identity card using the name ‘[Visa Applicant name variant 2]’.
It was submitted that [Visa Applicant name variants 1 and 2] are the same person. The photos on the identity cards support this conclusion. It was claimed that there was no definitive record of the spelling of the visa applicant’s name which explained why different official organisations had used different spelling for his name.
[In] March 2018 the Tribunal received from the Department confirmation that the visa applicant met the health criteria.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Medical assessment
The first issue in this review is whether the visa applicant 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.
Has the applicant undertaken a medical assessment (PIC 4007(1)(aa))?
Clause 4007(1)(aa) requires that if the applicant is in a specified class of persons, he or she must undertake the specified medical assessment and be assessed by a specified person unless a Medical Officer of the Commonwealth (MOC) decides otherwise. The relevant class of persons and assessments are specified in IMMI 14/042. This specifies Burma as a country that requires the person to undertake the medical assessment.
The visa applicant has undertaken a medical examination with the MOC and the MOC has conducted an assessment of the applicant and issued an opinion.
For these reasons the requirements in PIC 4007(1)(aa) are met.
Is the applicant free from the relevant diseases or conditions (PIC 4007(1)(a), (b), (c))?
Clauses 4007(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.
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 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 services are excluded from this consideration: PIC 4007(1B). The requirement may also be waived in certain circumstances.
As the applicant in this case has applied for a permanent visa, the exemption provision in PIC 4007(1B) does not apply.
In determining whether a person meets PIC 4007(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?
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 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.
The information received by the Tribunal from the Department is that the MOC has issued a decision that the visa applicant meets the health criteria.
Accordingly, based on the opinion of the MOC, the applicant satisfies PIC 4007(1)(a) (b) and (c).
Police certificate
The second issue is whether the applicant meets PIC 4001 that the visa applicant passes the character test. Regulation 2.03AA provides that if a person is required to satisfy PIC 4001 for the grant of the visa the applicant has provided, if requested, a statement provided by an appropriate authority in a country where the person resides, or has resided, that provides evidence about whether or not the person has a criminal history (r.2.03AA(2)(a)). This requirement may be waived if the Minister is satisfied that it is not reasonable for the applicant to provide the statement. A copy of the regulations is attached to this decision.
The review applicant provided to the Tribunal a National Police Certificate issued by the AFP certifying that there are no disclosable court outcomes against the name of the review applicant as at [September] 2017.
The review applicant has provided a Police Clearance Certificate from the Royal Papua New Guinea Constabulary stating that it reveals nothing to the detriment of the person named. It is noted that the spelling of the visa applicant’s name in the certificate is ‘[name variant 1]’. Although the name of the applicant in the certificate is spelt as ‘[name variant 1]’, the Tribunal accepts that this is the same person as the visa applicant and that the certificate is valid in establishing that there are no disclosable court outcomes against the visa applicant for the purpose of the regulations.
The review applicant has not provided a police certificate from Myanmar. The visa applicant has been assessed by the Papua New Guinea Ministry of Foreign Affairs and Immigration as a refugee. The basis of that assessment is the visa applicant’s claim that as he is a Rohingya, he faces persecution in Myanmar. This is the same basis upon which the review applicant was granted his Protection visa when he applied for that visa in Australia.
In light of the circumstances that the Rohingya population face in Myanmar, the Tribunal finds that it is not reasonable for the applicant to provide a statement from that country.
The only other countries that the visa applicant has travelled to since leaving Myanmar are [Country 1], [Country 3] and [Country 4]. The visa applicant was only in those countries for short periods of time and was travelling under the guidance of people smugglers. He did not register with any of the authorities in those countries and did not establish any residence in those countries. The Tribunal finds that it is not reasonable for the applicant to provide a statement from the relevant authorities from those countries.
The Tribunal is satisfied that the visa applicant and the review applicant have provided the necessary certificates to satisfy the requirements of r.2.03AA.
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
The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:
·PIC 4007(1) for the purposes of cl.101.223 of Schedule 2 to the Regulations; and
·Regulation 2.03AA for the purposes of satisfying Public Interest Criteria 4001 and 4002 for the purpose of meeting cl.101.223 of Schedule 2 to the Regulations.
Hugh Sanderson

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.
Regulation 2.03AA Criteria applicable to character tests and security assessments
2.03AA(1) In addition to the criteria prescribed by regulations 2.03 and 2.03A, if a person is required to satisfy public interest criteria 4001 or 4002 for the grant of a visa, the criterion in subregulation (2) is prescribed.
2.03AA(2) If the Minister has requested the following documents or information, the person has provided the documents or information:
(a) a statement (however described) provided by an appropriate authority in a country where the person resides, or has resided, that provides evidence about whether or not the person has a criminal history;
(b) a completed approved form 80.
Note:          For paragraph (a), an example of an appropriate authority is a police force.
2.03AA(3) The Minister may waive the requirement in paragraph (2)(a) if the Minister is satisfied that it is not reasonable for the applicant to provide the statement.

[2018] AATA 1039

8 March 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Remedies