1722069 (Migration)

[2019] AATA 2780

1722069 (Migration) [2019] AATA 2780 (13 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1722069

MEMBER:Ann Duffield

DATE:13 February 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

Statement made on 13 February 2019 at 1:20pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) – Subclass 838 (Aged Dependent Relative) – free of certain conditions that may impact community – does not meet health requirement – moderate functional impairment – significant mobility impairment – care services required for stay in Australia – not dependent child – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.15, 1.21, 2.25A, Schedule 2, cls 835.212, 838.223, 838.311, 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 decisions made by a delegate of the Minister for Immigration on 28 August 2017 to refuse to grant the applicants Other Family (Residence) (Class BU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 22 September 2015. The delegate refused to grant the visa on the basis that the first named applicant (now referred to as the applicant) did not satisfy cl838.223 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.

3. The applicants appeared before the Tribunal on 13 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor.

4. The applicants were represented in relation to the review.

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

   BACKGROUND

6. The parties provided the Tribunal with a copy of the delegate’s decision along with the application for review.

7. The applicant is a citizen of the Philippines born on [date]. She is widowed.

8. The review applicant is the applicant’s son and secondary applicant, born on [date]. The applicant is sponsored by her daughter, Ms [A] born on [date], an Australian citizen by grant [in] 2008.

9. On 9 March 2016 the Commonwealth Medical Officer (CMO) issued a certificate stating that the primary applicant does not meet the health requirement. The CMO assessed that the applicant has moderate functional impairment resulting from [a health condition]. She has significant mobility impairment and is unlikely able to fully support herself. The CMO assessed that the applicant would require community and residential care services for the duration of her life.

10. The secondary applicant, Mr [B] ([DOB]) [age] was also refused a visa on the basis that he did not meet the definition of dependent child. Mr [B] has declared [dependent] children and a de-facto spouse in the Philippines. He has worked full time in the past and has not been a full time student in the recent past. Mr [B] also has siblings and other relatives in the Philippines and hence did not meet the requirements for the grant of a last remaining relative visa.

11. The CMO issued a further certificate on 25 August 2017 in relation to the applicant stating that her condition had not improved and that she was likely to incur community and residential care services for the duration of her stay in Australia and therefore she continued not to meet PIC 4005.

12. On 8 March 2018, the Tribunal wrote to the parties inviting them to obtain a further opinion in relation to the applicant. The parties wrote to the Tribunal several times in the intervening period seeking additional time to provide the relevant document however as at the time of the Scheduled hearing, some 11 months later, no such documentation was provided.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. 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. The applicant in this case has been assessed as having moderate functional impairment resulting from severe osteoarthritis. She has significant mobility impairment and is unlikely able to fully support herself. The CMO assessed that the applicant would require community and residential care services for the duration of her life.

    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.  The applicant does not suffer from any of these conditions.

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. For specified temporary visas, certain specified health care and community service are excluded from this consideration: PIC 4005(3).

16. As the applicant in this case 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).

    MOC opinion obtained

18. On the evidence before the Tribunal, a MOC opinion has been obtained. 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.

19. The Tribunal is satisfied that the MOC has identified the medical condition to which the public interest criterion has been applied and further, identified the form and level of the condition suffered by the applicant. The Tribunal is satisfied that the MOC dated 25 August 2017 is relevant and moreover that the applicants, when given the opportunity over an 11 month period to provide one, did not do so.

20. The applicant did provide to the Tribunal, at the hearing, a letter from her GP setting out her conditions and her capabilities. The Tribunal put to the applicant that it was not an MOC and as such the Tribunal would have no choice but to rely on the MOC in front of it which stated that the criteria were not met. The sponsor told the Tribunal that they had filled out some forms and sent them to the department but had not heard anything back. She did not recall when this was.

21. The Tribunal put to the applicant that on the basis of the evidence before it and depending upon any response or comments she had, the Tribunal would have no choice but to affirm the decision under review. The applicant and the sponsor indicated that they understood.

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

23. The applicant was also considered under the criteria for a subclass 835 last remaining relative visa. She told the Tribunal that she had [a number of] children and only one was an Australian permanent residence, citizen or eligible New Zealand citizen. She told the Tribunal that she also had brothers and sisters in the Philippines and her children were married and had children of their own.

24. Be that as it may, the applicant must still meet the requirements of PIC 4005 for the subclass 835 visa and she does not.

25. Accordingly, based on the opinion of the MOC, the applicant does not satisfy public interest criterion 4005(1)(c).

    CONCLUSION

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

    DEPENDENT RELATIVE – SECONDARY APPLICANT

27. The secondary applicant has applied as the dependent of the primary applicant. He is the applicant’s [son].

28. Regulation 1.21(1)(b) defines “dependent child” as a child of the person (other than a child who is engaged to be married or has a spouse or a de facto partner). The secondary applicant has declared [a number of] dependent children and a de-facto spouse in the Philippines, Ms [C].

29. The Tribunal put these matters to the secondary applicant and he confirmed that he had [children] but told the Tribunal that he and his de-facto spouse had separated. The Tribunal also put to the applicant information provided by his mother that he had siblings and other close relatives, including his children, in the Philippines and he confirmed this. The secondary applicant also told the Tribunal that he had been working since he left school and was not either physically or mentally incapacitated to work. The Tribunal put to the secondary applicant that on the basis of the facts before it he did not meet the definition of dependent child and depending upon his response to that it would have to affirm the decision. The secondary applicant indicated that he understood.

30. The secondary applicant does not meet the definition of dependent child, therefore he does not satisfy Regulation 1.21. As the applicant does not meet the definition of dependent child he is not considered to be a member of the family unit of the primary applicant, Ms [B]. He does not, therefore meet clause 838.311 of Schedule 2 of the Regulations.

31. The applicant has also been considered for eligibility against the Remaining Relative criteria.  In order to meet these criteria the applicant is required to demonstrate that, at the time of lodging their application they are the remaining relative of an Australian relative who is usually resident in Australia.

32. In the present case, the secondary applicant’s sister is the sponsor. Within the definition of remaining Relative, sub regulation 1.15(1)(c) requires that an applicant and their spouse or partner have no near relatives other than near relatives who are usually resident in Australia and who are Australian citizens, Australian permanent residents or eligible New Zealand citizens.

33. The secondary applicant has declared siblings and their families, aunts and uncles and 4 children presently resident in the Philippines who are not Australian citizens, Australian permanent residents or eligible New Zealand citizens. As the applicant has near relatives who are not Australian citizens, Australian permanent residents or eligible New Zealand citizens, the secondary applicant does not meet the requirements of sub regulation 1.15. He therefore does not meet clause 835.212 of Schedule 2 of the Regulations.

    CONCLUSION

34. As discussed above, as the secondary applicant does not meet either clause 838.311, or cl.835.212, the secondary applicant does not meet the requirements for the grant of a visa.

    DECISION

35. The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

    Ann Duffield
    Senior 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.