1820734 (Migration)

[2019] AATA 4119

1820734 (Migration) [2019] AATA 4119 (11 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1820734

MEMBER:Justine Clarke

DATE:11 July 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Contributory Parent (Migrant) (Class CA) visa.

Statement made on 11 July 2019 at 3:46pm

CATCHWORDS

MIGRATION – Contributory Parent (Migrant) (Class CA) – Subclass 143 (Contributory Parent) – health criteria – medical opinion – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), Schedule cl 143.225, Schedule 4 Public Interest Criterion 9PIC) 4005, r 2.25A(3)

CASES

JP1 & Ors v MIAC [2008] FMCA 970

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 visa applicant a Contributory Parent (Migrant) (Class CA) visa under s.65 of the Migration Act 1958 (the Act).

2. On 4 December 2014, the visa applicant, [Applicant], applied for the visa.

3. On 9 July 2018, the delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.143.225 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.143.225.

4. On 17 July 2018, the review applicant, [Review applicant], acting on behalf of her son [Master A] who is a minor, applied to the Tribunal for review of the primary decision. The review applicant was represented in relation to this review by a registered migration agent.

5. On 16 January 2019, the Tribunal wrote to the review applicant, by way of the representative, and invited her to obtain a further opinion from a Medical Officer of the Commonwealth (MOC) because the earlier opinion was no longer current.

6. Subsequently, the representative responded by providing the relevant paperwork requesting a further opinion be obtained and also provided further evidence.

7. On 14 March 2019, a MOC made an adverse opinion. Before the Tribunal had an opportunity to write to the review applicant about the opinion, pursuant to s.359A of the Act, the representative wrote to the Tribunal with further medical evidence.

8. Accordingly, on 8 May 2019, the Tribunal wrote to the review applicant to enquire whether she wanted the most recent medical evidence to be considered by a MOC. If so, the Tribunal invited the review applicant to seek another opinion.

9. Subsequently, the review applicant requested a further opinion.

10. On 27 May 2019, a MOC made an opinion. This is the opinion that the Tribunal has considered in this review.

11. On 30 May 2019, the Tribunal sent a letter to the review applicant, providing her with a copy of the MOC opinion of 27 May 2019 and inviting her to comment on or respond to that information, pursuant to s.359A, in writing by 13 June 2019. 

12. The representative wrote to the Tribunal on 6 and 11 June 2019. The first email requested the amount in Australian dollars that the MOC had indicated would accrue to the Australian community in expressing the opinion. The second email again queried the amount the costs were assessed to be and queried how they were calculated. This latter email also provided further evidence.

13. On 12 June 2019, the Tribunal wrote to the review applicant, by way of the representative, responding to the two emails. The Tribunal stated that, in a case such as the current one involving PIC 4005, a MOC is not obliged to state what the significant costs would be in order for the opinion to be valid.[1] Rather, it is for a MOC to determine whether a cost is significant, based on his or her medical judgment.[2] A MOC is also not obliged to explain why a particular cost is considered to be a significant cost.[3]  

    1JP1 & Ors v MIAC [2008] FMCA 970 (Riley FM, 22 August 2008) at [13], citing Blair v MIMA [2001] FCA 1014 (Carr J, 31 July 2001) at [46]. The Court in JP1 was considering a MOC opinion in relation to then PIC 4005(c) for an applicant with HIV.

    2JP1 & Ors v MIAC [2008] FMCA 970 (Riley FM, 22 August 2008) at [33], referring to MIMA v Seligman (1999) 85 FCR 115 at [53].

    3        JP1 & Ors v MIAC [2008] FMCA 970 (Riley FM, 22 August 2008) at [57].

14. On 3 July 2019, [the Review Applicant] appeared before the Tribunal—by way of video from [City 1] registry—to give evidence and present arguments. [Master A] also attended the hearing but, mindful that he is a minor, the Tribunal did not consider it necessary to hear his oral evidence. The visa applicant was available and willing to provide oral evidence by telephone from Vietnam but the Tribunal did not consider it to be necessary. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The representative also attended the hearing from the Tribunal’s registry in [City 1].

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. 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 visa applicant, in certain circumstances, to undergo medical assessment, and to be free of certain diseases or conditions that may impact on the community.

17. In this case, the delegate found that the visa applicant did not meet the health requirement. Although not specified with precision in the primary decision, the delegate found that the visa 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; …

18. That is, PIC 4005 requires the visa applicant, in certain circumstances, to undergo medical assessment, and to be free of certain diseases or conditions that may impact on the community.

19. 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))?

20. 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 applicant being, a threat to public health in Australia or a danger to the Australian community.

21. Public interest criterion 4005(1)(c) requires the visa 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.

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

23. 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 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?

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

25. 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 MOC opinion of 27 May 2019

26. As noted above, the review applicant requested two further MOC opinions while the review application was on foot. The final MOC opinion that was obtained is dated 27 May 2019. The opinion specifically states that, in preparing the opinion, the MOC has 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.

27. The opinion states that the visa applicant has ‘asymptomatic chronic viral Hepatitis B’ and that it is likely to be a permanent condition. The opinion further states that the previous laboratory evidence is of ongoing viral activity. The opinion noted that, currently, the visa applicant is receiving antiviral treatment.

28. The opinion continued by stating that, ‘a hypothetical person in Australia with the same condition as the applicant, at the same severity, would be likely to be eligible for long term specialist health care services, including but not limited to ongoing medical review and antiviral pharmaceuticals’.

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

30. As noted earlier, the Tribunal wrote to the review applicant about the MOC opinion of 27 May 2019, attaching a copy and inviting comments on or a response to the information pursuant to s.359A of the Act. The review applicant’s representative responded to the s.359A letter but that response did not suggest that the MOC had applied the incorrect test in forming the opinion.

31. At the hearing, the representative reiterated the request that the Tribunal request the MOC to provide a breakdown of costs, including how they were calculated. The representative queried why the Tribunal was not prepared to seek such a breakdown when, earlier when the matter was before the Department, the Department had agreed to the representative’s request for a breakdown of costs, as determined by a MOC. The representative referred the Tribunal to folio 177 of the Department’s file in this respect.

32. At the conclusion of the hearing, the Tribunal stated that it would consider the request further.

33. The Tribunal does not consider it appropriate for it to seek a breakdown of costs from the MOC. This is because, in cases where PIC 4005 is applicable and an adverse opinion is received from a MOC, the only issue for the Tribunal’s consideration is whether the opinion of the MOC is authorised by the Regulations.

34. The Tribunal finds that the MOC opinion of 27 May 2019 is valid and based on the opinion of the MOC, the applicant does not satisfy public interest criterion 4005(1)(c).

    CONCLUSION

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

    DECISION

36. The Tribunal affirms the decision not to grant the visa applicant a Contributory Parent (Migrant) (Class CA) 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.