1721021 (Migration)

[2019] AATA 6887

1721021 (Migration) [2019] AATA 6887 (29 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1721021

MEMBER:Justine Clarke

DATE:29 April 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Contributory Aged Parent (Residence) (Class DG) visa.

Statement made on 29 April 2019 at 3:14pm

CATCHWORDS

MIGRATION – Contributory Aged Parent (Residence) (Class DG) visa – Subclass 864 (Contributory Aged Parent) – applicant did not meet the health requirement – applicant does not satisfy public interest criterion 4005 – strong compassionate circumstances – referred for ministerial intervention – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 351, 359A

Migration Regulations 1994 (Cth), r 2.25A; Schedule 2, cl 864.223; Schedule 4, Public Interest Criterion 4005

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

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

2. On 9 June 2015, the applicant, [applied] for the visa. She was sponsored by her daughter Mrs [A]. At the time of this decision, the applicant is a 79 year old national of the UK.

3. On 29 August 2017, the delegate refused to grant the visa on the basis that the applicant did not satisfy cl.864.223 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 primary decision contains an extract of cl.864.223.

4. On 8 September 2017, the applicant applied to the Tribunal for review of the primary decision. Mrs [A] is the applicant’s legal guardian and administrator (see Tribunal file ff.56–57) and represented her in relation to the review.

5. On 29 January 2018, the Tribunal wrote to the applicant, by way of Mrs [A], and advised of the opportunity to obtain a further opinion from a Medical Officer of the Commonwealth (MOC). Subsequently, Mrs [A] consented and a further MOC opinion was obtained.

6. On 17 January 2019, the Tribunal sent a letter to Mrs [A] and the applicant, providing them with a copy of the MOC opinion of 31 December 2018 and inviting them to comment on or respond to that information pursuant to s.359A. On 24 January 2019, within the requested time period, Mrs [A] requested for an extension of time. On 1 February 2019, the Tribunal wrote to Mrs [A] and the applicant advising that an extension of time had been granted until 15 February 2019.

7. On 10 February 2019, prior to the deadline, Mrs [A] provided further information to the Tribunal.

8. On 5 April 2019, Mrs [A] appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s son, Mr [B].  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this review is whether the visa applicant meets 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.

11. In this case, the delegate found that the applicant did not meet the health requirement. Although not specified with precision in the primary decision, the delegate found that the applicant did not meet PIC 4005(1)(c)(ii)(A), which relevantly provides:

    4005    (1) The applicant:

    …

    (c) is free from a disease or condition in relation to which:

    …

    (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; …

12. That is, PIC 4005 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.

13. In assessing the issues, the Tribunal has had regard to all documents on the Department’s and the Tribunal’s files and the oral evidence given at the hearing.

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

14. 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.

15. 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. Policy indicates that a significant cost is to be regarded as that over $40,000.

16. For specified temporary visas, certain specified health care and community service are excluded from this consideration: PIC 4005(3). In this case, as the applicant has applied for a permanent visa, the exclusion provision in PIC 4005(3) does not apply.

17. 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?

18. On the evidence before the Tribunal, a MOC opinion is required.

19. 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 first and second MOC opinions

20. The primary decision refers to the first and second MOC opinions that were made in this matter. These MOC opinions are on the Department’s file.

    The third MOC opinion

21. As noted above, the applicant and Mrs [A] requested a further MOC opinion while this review application was on foot. The final MOC opinion that was obtained is dated 31 December 2018. The opinion specifically states that, in preparing the opinion, the MOC had had regard to ‘the information available to date concerning the applicant’ and specified a number of particular documents whilst stating that this was not a comprehensive list.

22. The opinion stated that the applicant has ‘moderate functional and cognitive impairment due to a combination of chronic catatonic schizophrenia and dementia’ and stated that it was likely to be a permanent condition. The opinion further stated that the applicant is stable on medication and ‘requires ongoing medication, assistance with activities of daily living and lives in a residential aged care facility’.

23. The opinion continued by stating that, ‘a hypothetical person in Australia with the same condition as the applicant and at the same severity, would be likely to require medical care and community services, including but not limited to specialised medication and residential aged care services’.

24. Accordingly, the MOC concluded that the applicant does not meet PIC 4005(1)(c)(ii)(A).

25. As noted earlier, the Tribunal wrote to the applicant and Mrs [A] about the third MOC opinion, attaching a copy and inviting comments on or a response to the information pursuant to s.359A of the Act.

26. Based on the most recent opinion of the MOC, the applicant does not satisfy public interest criterion 4005(1)(c).

    CONCLUSION

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

    REFERRAL TO THE MINISTER

28. Section 351 of the Act provides that, if the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.

29. At the hearing, Mrs [A] formally requested the Tribunal to refer the matter to the Minister for intervention.

30. In deciding whether to refer the matter to the Minister for consideration under s.351, the Tribunal has had regard to the President’s Direction Conducting Migration and Refugee Reviews, especially at paragraphs 16.1–16.7 concerning referrals for ministerial intervention and the Minister’s Guidelines on ministerial powers (s345, s351, s391, s417, s454 and s501J) available in the Procedures Advice Manual 3 (‘the Minister’s Guidelines’).

31. In the Tribunal’s view, this is a case that exhibits a number of unique or exceptional circumstances such that the Minister may consider exercising his discretion to intervene. The following factors appear relevant:

    ·compassionate circumstances regarding the age and/or health and/or psychological state of the person such that a failure to recognise them would result in irreparable harm and continuing hardship to the person; and

    ·strong compassionate circumstances such that a failure to recognise them would result in irreparable harm and continuing hardship to an Australian citizen or an Australian family unit (where at least one member of the family is an Australian citizen or Australian permanent resident).

32. The evidence before the Tribunal is that the applicant came to live in Australia after her husband died so that she could live closer to her children, Mrs [A] and Mr [B]. She has been living in an aged care facility since 1 November 2016.

33. As noted earlier, guardianship and administration orders have been made in respect of the applicant. In the case of the guardianship order, the State Administrative Tribunal declared that the applicant:

    (a)  is incapable of looking after her own health and safety;

    (b)  is incapable to make reasonable judgments in respect of matters relating to her person;

    (c)   is in need of oversight, care or control in the interests of her own health and safety; and

    (d)  is in need of a guardian.

34. In the case of the administration order, the State Administrative Tribunal declared that the applicant:

    (a)  is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate; and

    (b)  is in need of an administrator of her estate.

35. Mrs [A] submitted that the applicant ‘is not fit to fly’ and ‘is a frail old lady without aggression’. Dr [C] wrote that the applicant ‘lives peacefully with other residents without problems’.

36. Mrs [A] also submitted that:

    Five members of our family are Australian citizens, including her great grandson, mine is due for approval anytime. The rest are permanent residents and have resided in Perth for more than 10 years. Her siblings are ageing and my uncle who looked after Mum’s affairs in the UK is now 80 years old himself.

    …

    Mum should be allowed to live out her final years here with myself and my brother and her 3 grandchildren. This surely a humanitarian issue. 

37. Examining the relevant factors individually and cumulatively, the Tribunal considers that this is a case where it would be appropriate to make a referral to the Minister. 

    DECISION

38. The Tribunal affirms the decision not to grant the applicant a Contributory Aged Parent (Residence) (Class DG) visa.

    Justine Clarke
    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.