1817242 (Migration)

[2021] AATA 916

1817242 (Migration) [2021] AATA 916 (4 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1817242

MEMBER:Brendan Darcy

DATE:4 March 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 04 March 2021 at 1:17pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependant Relative) – health requirements – assessments by medical officer of commonwealth – multiple physical and mental conditions – permanent, progressive and likely to require health care and community services – significant cost to Australian community – departmental policy change to threshold for significant costs – compassionate circumstances – hardship to Australian family unit – Australian relatives’ care and expenditure – inadequate support available in home country – Ministerial intervention requested – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), rr 1.03, 2.25A(2), Schedule 2, cls 838.223, 838.224, 838.322, Schedule 4, Public Interest Criterion 4005(1)(c)(ii)(A)

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 Home Affairs on 31 May 2018 to refuse to grant the applicants Other Family (Residence) (Class BU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visa on 3 April 2017. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative). In the present case, the applicants are seeking to satisfy the criteria for the grant of a Subclass 838 visa which requires the primary applicant to be the aged dependent relative of an Australian citizen, permanent resident or an eligible New Zealand citizen. The criteria for a Subclass 838 visa are set out in Part 838 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this matter, the primary criteria to be met include cl 838.223 and cl.838.224 in Schedule 2 of the Regulations.

3. The delegate refused to grant the visas on the basis that cl 838.223 required the applicant to satisfy public interest criteria 4005 (the health requirement).

4. Via an internet-enabled audio-visual platform, the sponsor and the first named applicant appeared before the Tribunal on 26 February 2021 to give evidence and present arguments. The Tribunal also received oral evidence from two of the daughters of the first named applicant, [Ms A] and [Ms B]. The second named applicant did not provide oral evidence.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The first named applicant lodged her application for this visa under review on 3 April 2017 in which she included the second named applicant as a dependent applicant. The last substantive Australian visas held by the applicants were Subclass 602 (medical treatment) visas. 

8. The visa application was made on the basis that the first named applicant is the aged dependent relative of [Mr C], who the applicants claims is their relative. Relative is also defined in reg 1.03 and means a ‘close relative’ as defined, or a grandparent, grandchild, aunt, uncle or niece or nephew (or their step equivalents).

9. In this case [Mr C] was an Australian permanent resident at the time of lodgement and now holds Australian citizenship at the time of making this decision. [Mr C] is the first named applicant’s biological son and the biological brother of the second named applicant.

10. The first named applicant was born [on Date 1] and is a citizen of the Republic of Singapore (Singapore). The second amend applicant was born [on Date 2] and is a citizen of Singapore.

11. The second named applicant was born [on Date 2] and is also a citizen of Singapore. She is a secondary applicant in this visa application.

12. On 7 February 2018, a letter was sent to the applicants requesting her to provide documentation to the Department, including a health assessment, for this application.

13. As the applicants had been assessed by a MOC as not meeting PIC 4005, and as there is no waiver for PIC 4005, regardless of the applicants’ circumstances, the delegate found that the applicants do not meet regulation 838.322 in Schedule 2 of the Regulations.

14. The critical details of these health assessments are outlined below.

15. A delegate acting on behalf of the Minister refused to grant the applicants aged dependent relative visas on 31 May 2018.

16. The applicants validly applied to have the refusal decision reviewed by the Tribunal on 13 June 2018. The notification and the decision record were attached to this application for review.

17. In December 2020, the Tribunal received two new MOC assessments stating that the applicant as not meeting PIC 4005. The critical details of these health assessments are outlined below.

18. The Tribunal received a written legal submission dated 23 February 2021 from the applicants’ representative, arguing there were strong compassionate circumstances in this case that would result in serious ongoing and irreversible harm and continuing hardship to the Australian citizen family members of the applicants. The submission sought the Tribunal to consider referring the matter to the Minister to consider exercising his discretionary powers.

19. This request was reiterated and further explored by the Tribunal at the scheduled hearing. At the end of the hearing, no further submission was required. 

    Health requirement: first named applicant

20. On 7 February 2018, a Departmental letter was sent to the first named applicant requesting her provide documentation, including a health assessment, for this application. On 16 March 2018, the Medical Officer of the Commonwealth (MOC) assessed the first named applicant against the PIC 4005 criteria and found the first named applicant does not meet the hearing requirement for the period of a permanent stay in Australia. It stated the first named applicant is an [age]-year-old person with moderate function impairment on a background of heart failure and mobility issues; that she is dependent for some of her activities of daily levies; an that her condition is progressive. It also stated that the provision of health and community services to the community would be significant.

21. On 19 March 2018 an invitation to comment letter was sent to the applicants advising her that the first applicant has been assessed as not meeting the health requirement for the grant of a Subclass 838 visa. While the applicants’ relatives provided a response to a letter seeking invitation to comment, a delegate on behalf of the Minister proceeded made a decision that the first named applicant did not satisfy PIC 4005(1)(cc)(ii)(A) in the Schedule 4 of the Migration Regulations on 31 May 2018 and an application for review was validly lodged.

22. On 1 July 2019, the Department updated its policy for MOC assessing the health criteria. In particular, the new policy: raised the threshold level for ‘significant costs’ from AUD 40,000 to AUD 49,000 for all cases; and,  for permanent and provisional visa applicants only who have a permanent condition, reduced the assessment period from lifelong costs to costs for a maximum of ten years.[1] The effect of these changes is that an applicant who previously failed health criteria because of an adverse MOC or further MOC opinion may, in certain circumstances, now meet the health criteria under the more favourable policy. 

    [1] Policy – Migration Regulations Sch4 - 4005-4007 - The health PIC - Sch4/4005-4007 - The health requirement - The MOC Assessment - Significant costs (re-issued 01/07/2019).

23. The Tribunal received a revised or new MOC dated 16 December 2020 in relation to the first named applicant.

24. As discussed in the hearing, this later assessment is almost identical to the earlier one provided to the Department. It states the first named applicant is a [age]-year old person with moderate functional impairment. A hypothetical person with this disease or condition, at the same severity as the first named applicant would likely to require health care and community services during the period. The condition is likely to be progressive and would be likely to result in a significant cost to the Australian community in the areas of health care and/community services.

25. Noting the operation of r.2.25A(2), the Tribunal is satisfied that it is valid, the medical condition to which the Public Interest Criterion has been applied; specifies the form or level of the condition suffered by the applicant and has applied the statutory criteria by reference to a hypothetical person who suffers from the form or level of the condition. The Tribunal is satisfied that the Officer has applied the correct test and is bound to accept the medical opinion to be correct, accurately reflecting the Department’s updated policy on PIC4005 at that time of decision.

26. Accordingly, the Tribunal has no alternative but to find the first named applicant has not meet PIC 4005 (1)(c)(ii)(A).

27. As the first applicant has been assessed by a MOC as not meeting PIC 4005, and as there is no waiver for PIC(4005), she does not meet regulation 838.224 in Schedule 2 of the Regulations on the date of this decision.

    Health requirement: second named applicant

28. The second named applicant is required to satisfy clause 838.322 in Schedule 2 of the Regulations. Clause 838.322 relevantly states that the applicant is to satisfy a number of public interest criteria, including 4005.

29. On 7 February 2018, a letter was sent to the applicants requesting the second named applicant to provide documentation, including a health assessment. On 1 May 2018 the Medical Officer of the Commonwealth (MOC) assessed the second named applicant against Public Interest Criterion (PIC) 4005 and found that the second named applicant does not meet the health requirement for the period of a permanent stay in Australia.

30. It stated that the second named applicant did not satisfy Public Interest Criterion 4005(1)(c)(ii)(A), citing the second named applicant is a [age] year-old person with sever functional impairment on a background of chronic schizophrenia, requiring considerable assistance with activities of daily living and constant supervision. A hypothetical person with the same condition of similar severity would require long term disability services and medical care and supervisor. The condition is likely to be permanent and would be likely to result in a significant cost to the community.

31. This was the basis for the delegate for refusing the first named applicant the visa as she did not satisfy Public Interest Criterion 4005(1)(c)(ii)(A).

32. On 1 July 2019, the Department updated its policy for MOC assessing the health criteria. In particular, the new policy: raised the threshold level for ‘significant costs’ from AUD 40,000 to AUD 49,000 for all cases; and,  for permanent and provisional visa applicants only who have a permanent condition, reduced the assessment period from lifelong costs to costs for a maximum of ten years.[2]

    [2] Policy – Migration Regulations Sch4 - 4005-4007 - The health PIC - Sch4/4005-4007 - The health requirement - The MOC Assessment - Significant costs (re-issued 01/07/2019).

33. The effect of these changes is that an applicant who previously failed health criteria because of an adverse MOC or further MOC opinion may, in certain circumstances, now meet the health criteria under the more favourable policy. 

34. The Tribunal received a revised or new MOC dated 11 December 2020. It stated that the second named applicant did not satisfy Public Interest Criterion 4005(1)(c)(ii)(A), citing the second named applicant is a [age] year-old person with sever functional impairment on a background of chronic schizophrenia, requiring considerable assistance with activities of daily living and constant supervision. As discussed in the hearing, this later assessment is almost identical to the earlier one provided to the Department.

35. A hypothetical person with the same condition of similar severity would require long term disability services and medical care and supervisor. The condition is likely to be permanent and would be likely to result in a significant cost to the Australian community in the areas of health care and/community services.

36. Noting the operation of r.2.25A(2), the Tribunal is satisfied that it is valid, the medical condition to which the Public Interest Criterion has been applied; specifies the form or level of the condition suffered by the applicant and has applied the statutory criteria by reference to a hypothetical person who suffers from the form or level of the condition. The Tribunal is satisfied that the Officer has applied the correct test and is bound to accept the medical opinion to be correct, accurately reflecting the Department’s updated policy on PIC4005 at that time of decision.

37. Accordingly, the Tribunal has no alternative but to find the first named applicant has not meet PIC 4005 (1)(c)(ii)(A).

38. As the second named applicant has been assessed by a MOC as not meeting PIC 4005, and as there is no waiver for PIC(4005), she does not meet regulation 838.322 in Schedule 2 of the Regulations on the date of this decision.

    Referral for Ministerial intervention

39. In the course of this review, the applicants’ Australian citizen family members outlined reasons to the Tribunal for it consider whether this is an appropriate matter to refer to the Minister for consideration that a favourable decision be substituted pursuant to the powers in s.351 of the Act.

40. Having assessed their oral testimony and the submitted written and documentary evidence, the Tribunal considers that in this matter there are strong compassionate circumstances that, if not recognised, would result in serious, ongoing and irreversible harm and continuing hardship to an Australian family unit, that support such a recommendation.

41. The applicants’ family members have all undertaken to varying degrees to provide care for them, including the sponsor’s children. Of particular note is [Ms A] who she ceased her employment, relies on income benefits to be a full time carer for the applicants and that the applicants currently reside with [Ms A]. They provided evidence they pool the cost of out of pocket health expenses such as doctors’ consultations and pharmaceuticals. They demonstrated that they all have a loving and supportive bond between each other. The Tribunal also notes that [Ms B] is a registered nurse and [Mr C] is a mental health technician. (It is noted that copies of Australian citizenship certificates pertaining to these three adult children of the first named applicant are on the Tribunal’s file.)

42. The first named applicant is a frail and aged [person] who has a number of health complications associated with ageing and that she appears to have geriatric depression. She has been a widow since 1980s and never remarried. She raised her family as a sole parent working in causal labour. It is conceded that her progressive frailty will be a burden to the Australian community. However, the Australian citizen family members are the adult children of the first named applicant have demonstrated they have pooled resources to mitigate some of those costs to the Australian community.

43. In the case of the second named applicant, she has lived all her adult life with a serious mental health problem amounting to chronic and profound disabilities. The Tribunal found it heart-rending to hear that the second named applicant had otherwise been a bright and intelligent young woman until her late teenage years in 1980s in Singapore until she demonstrated melancholic and hallucinatory symptoms. Her Australian citizen siblings stated that the second named applicant was diagnosed with schizophrenia and subsequently referred to undertake risky electroconvulsive therapies to treat her symptoms. Later she placed on antipsychotic medication which she had been taking for around 30 years and this has stabilized her schizophrenia. They claimed that her mental age is around four-years of age; requires supervision for toileting and that she only verbalises for food and drink. Otherwise the second named applicant is passive with a sweet demeanor. Her siblings surmised that the electroconvulsive therapy imparted some kind of acquired brain injury to the second named applicant. The first named applicant had been the primary carer of the second named applicant for most of her life until recently. It is also worth mentioning for completeness that the second named applicant has never married or has any children of her own. Should the second named applicant return to Singapore, she will especially vulnerable and incapable to negotiate access to basic services without her family’s support, leading her open to destitution and/or exploitation.

44. The applicants’ family members have convincingly argued that for the applicants to return to Singapore they will be inadequately supported for by the Singapore’s social and community services. Both the applicants do not have any savings through Singapore’s Central Provident Fund. The welfare system in Singapore, while available, is primarily designed around family members providing support where savings are negligible and inadequate for those without savings. The Australian citizen family members of the applicants have stated that while a remaining son resides in Singapore he is estranged from his mother and other family members as well as indifferent to their welfare. The family do not appear to have any available accommodation or residences for the applicants if they were to return to Singapore and are financially and materially dependent relatives on the Australian citizens involved in this matter. Should the applicants return to their country of citizenship, they will likely encounter a significant degree of deterioration in psychical and mental health as vulnerable members of that community with little or no meaningful family support.

45. There is not reason to believe the parties mentioned above do not belong to a close-knit family and will provide the cultural and personal aspects of care to the applicants from this Australian family unit that cannot be imparted by community services. There is nothing to suggest the parties are not people of good character. Should the applicants returned to Singapore, the Australian citizen family members who have settled lives in Adelaide will be living with a degree of serious and ongoing duress knowing the applicants with their obvious vulnerabilities will be enduring continuing hardship if returned to their country of origin.

46. The evidence strongly invites the Tribunal to consider that the best interest of all the parties would not be served by not granting this visa. Cumulatively considered, this uncertain situation is taking a serious, ongoing and irreversible impact on the mental and psychical health of them all, not least the second named applicant due to her profound disabilities, and that there will be continuing emotional and psychological hardship on this Australian family unit, which is inclusive Australian citizens.

47. Having had regard to all relevant factors, the Tribunal considers that this is a case where it would be appropriate to make a referral to the Minister.

    Conclusion

48. As the first named applicant has not satisfied the requirements of PIC 4005, the first named applicant does not satisfy cl. 838.233.  

49. As the second named applicant has not satisfied the requirements of PIC 4005, the second named applicant does not satisfy cl. 838.322.  

1. Accordingly, the Tribunal finds that the applicants do not meet the criteria for a Subclass 838 visa. In respect of the other visa subclasses there is no material which would permit a finding that the applicants meet prescribed criteria for the visa sought.

   DECISION

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

   Brendan Darcy
   Member