1822243 (Migration)

[2018] AATA 5727

1822243 (Migration) [2018] AATA 5727 (18 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1822243

MEMBER:Hugh Sanderson

DATE:18 December 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant an Aged Parent (Residence) (Class BP) visa.

Statement made on 18 December 2018 at 10:17am

CATCHWORDS

MIGRATION – Aged Parent (Residence) (Class BP) visa – Subclass 804 (Aged Parent) – medical assessment – strong compassionate circumstances – request for Ministerial Intervention – decision under review affirmed     

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), r 2.25A; Schedule 2, cl 804.225; 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 s378 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 on 31 July 2018 to refuse to grant the applicant an Aged Parent (Residence) (Class BP) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 6 August 2015. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.804.225 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.

   Background

3. The applicant is a citizen of Indonesia and is currently [age] years old. He sponsored in this application by his son, [named], who is currently [age] years old and has resided in Australia since 2000 when he entered Australia on a [temporary] visa. He was granted a [permanent] visa in 2004 and now has the right to reside permanently in Australia. The applicant entered Australia [in] June 2015 holding a [temporary] visa. He then applied for the Aged Parent visa. His wife, [named], was included as a secondary applicant, however she died in November 2016. The applicant has two other children, a son, [named] who is currently [age] years old and a daughter, [named] who is currently [age] years old. Both reside in Australia. He has no immediate family who continue to live in Indonesia.

4. As part of the requirements to meet the criteria for the grant of the visa, the applicant was required to undergo medical check from the Medical Officer of the Commonwealth (MOC) [In] January 2017 the MOC assessed the applicant as not meeting the health requirement. In response to this, the applicant provided further information as to his health. After reviewing this information, the MOC again assess the applicant as not meeting the health criteria.

5. As the MOC found the applicant did not meet the health criteria under PIC 4005(1)(c) the delegate found the applicant did not meet the criteria in cl.804.225 and refused the application.

   Information to the Tribunal

6. The Tribunal wrote to the applicant on 6 August 2018 noting the reason for the Department’s refusal of the application and inviting the applicant to request a further assessment by the MOC. This was accepted by the applicant and further information provided in support of the application.

7. A letter from [named doctor], medical oncologist, dated 9 August 2018 stated as follows:

   (The applicant) continues in the community with poor performance status. He is not fit for active treatment of his malignancy and never will be. He is unable to carry out any instrumental activities of daily living. He should remain in Australia under the care of his family. He is not fit for travel overseas, nor to live by himself.

8. A report from [another doctor] of [a health agency] noted the applicant was suffering from hepatocellular carcinoma receiving palliative management, hepatitis B related Child Pugh A cirrhosis, tuberculosis and a right lobe thyroid nodule.

9. As requested a further MOC assessment was obtained. This report, dated [in] August 2018 found the applicant did not meet the health requirement. The MOC noted the applicant suffered from advanced liver cancer and the condition was progressive. The MOC found that the applicant did not meet the criteria in PIC 4005(1)(c)(ii)(A).

10. On 15 November 2018 the Tribunal wrote to the applicant pursuant to s.359A of the Act noting the information in the report from the MOC that the applicant did not meet the criteria in PIC 4005(1)(c)(ii)(A) could lead the Tribunal to find that the applicant did not meet the criteria in cl.804.225 and affirm the decision under review. In response, the applicant provided updated medical information.

11. The applicant appeared before the Tribunal on 18 December 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s daughter. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review by his registered migration agent who attended the hearing.

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

    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 suffers from multiple medical conditions including advanced liver cancer.

    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. 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).

    Is a MOC opinion required?

18. 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.

19. The Tribunal is satisfied that the opinion of the MOC has correctly identified the medical condition suffered by the applicant. The MOC is taken into account the relevant reports from the applicant’s treating professionals of the level of the condition suffered by the applicant and the treatment he is receiving. The Tribunal is satisfied the MOC has applied the statutory criteria by reference to a hypothetical person who suffers the same form or level of the condition. Taking into account all these matters, it is the opinion of the MOC that the applicant does not meet the health requirement of PIC 4005(1)(c)(ii)(A).

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

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

    Ministerial intervention

22. The applicant has indicated that, despite not meeting the criteria for the grant of the visa, it is their intention to request Ministerial intervention. The Tribunal supports that application for the following reasons:

    ·All the children of the applicant reside in Australia with their families and are established with their work and lives in Australia and would be unable to return to Indonesia to provide any continuing care for their father;

    ·The applicant has no other close relatives who would be able to provide any support or care for him in Indonesia;

    ·Although the applicant’s wife has siblings and their children who continue to live in Indonesia, the applicant and his children have little or no contact with those relatives;

    ·The applicant is receiving appropriate care in the home of his son and does not require community assistance in providing for his day-to-day needs;

    ·The only treatment the applicant is receiving for his medical condition is supportive or palliative care and this treatment is, at this time, minimal due to the support given by his family;

    ·The actual costs of the applicant’s current medical management, as assessed by [another doctor], amounts to only $35 per month for medication;

    ·The expected survival period for the applicant is 3 to 20 months; and

    ·The assessments from the applicant’s treating medical professionals is that he would not be able to travel unaccompanied and would not be able to live by himself overseas.

23. The applicant has only a short life expectancy. All his immediate family reside in Australia and would not be able to provide care they currently provide him in Indonesia. In his particular circumstances, the costs of his medical care do not appear excessive. Accordingly, the Tribunal believes that this is a matter of strong compassionate circumstances where there would be irreparable harm to the applicant’s family if the applicant were forced to return to live his last months in Indonesia. The Tribunal supports the request for the Minister to intervene for the grant of the visa.

    DECISION

24. The Tribunal affirms the decision not to grant the applicant an Aged Parent (Residence) (Class BP) visa.

    Hugh Sanderson
    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.