1826056 (Migration)

[2022] AATA 4234

1826056 (Migration) [2022] AATA 4234 (12 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Aristotle Paipetis (MARN: 0006846)

CASE NUMBER:  1826056

MEMBER:Stephen Conwell

DATE:12 October 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:

·PIC 4007(2)(b) for the purposes of cl.802.223 of Schedule 2 to the Regulations.

Statement made on 12 October 2022 at 7:27pm

CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – health criteria –condition likely to require health care or community services – autism spectrum disorder with moderate developmental delay – opinion of medical officer of commonwealth taken as correct – discretion to waive criterion – compassionate or compelling circumstances – family links and parents’ employment in sectors with skills shortages and financial means to mitigate health costs – applicant’s progress under parents’ care – family’s intention to remain in Australia permanently – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)
Migration Regulations 1994 (Cth), r 2.25A(3), Schedule 2, cl 802.223, Schedule 4, criterion 4007(1)(c)(ii)(A), (2)(b)

CASES
Bui v MIMA (1999) 85 FCR 134
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 Home Affairs on 24 August 2018 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 29 March 2017. At the time of application, the Child (Residence) (Class BT) visa contained Subclass 802 (Child) and Subclass 837 (Orphan Relative). In this case, claims have only been made in respect of Subclass 802 (Child).

3. The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). As there is no letter of support from a State or Territory government welfare authority (cl 802.216, 802.226A), the criteria to be met in this case include cl. 802.223 which requires that certain Public Interest Criteria be satisfied.

4. The delegate refused to grant the visa as the applicant did not satisfy cl.802.223 of Schedule 2 to the Regulations because the health criteria in Public Interest Criterion (‘PIC’) 4007 of Schedule 4 to the Regulations was not met.

5. The applicant was represented in relation to the review. The applicant provided a copy of the delegate’s decision to the Tribunal for the purposes of the review.

6. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2) of the Act.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Consideration of claims and evidence

8. The issue in this review is whether the visa applicant meets Public Interest Criterion (PIC) 4007 as required by the criteria for the grant of the visa. Public Interest Criterion 4007, 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. This last requirement may be waived in certain circumstances. The applicant in this case is a child born in [Year] who is diagnosed with a mild functional impairment, specifically a diagnosis of autism spectrum disorder with speech and language delay.

9. The Tribunal has regard to all the documents contained in the Department and Tribunal files including but not limited to, the decision record, the Form 884: Opinion of A Review Medical Officer of The Commonwealth (RMOC) dated 9 May 2022, financial information, medical records, statutory declarations by the applicant’s parents and a written submission by the representative dated 14 September 2022.

   Is the applicant free from the relevant diseases or conditions (PIC 4007(1)(a), (b), (c))?

10. Clauses 4007(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.

11. Clause 4007(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.

12. For specified temporary visas, certain specified health care and community services are excluded from this consideration: PIC 4007(1B). The requirement may also be waived in certain circumstances.

13. As the applicant in this case has applied for a permanent visa, the exemption provision in PIC 4007(1B) does not apply.

14. In determining whether a person meets PIC 4007(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?

15. 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.

16. The Department file contains an MOC opinion dated 29 March 2018, which identifies the applicant’s medical condition as “moderate developmental delay, secondary to autism spectrum disorder ... [requiring services] to improve communication, cognition and social skills.”

17. A second MOC opinion dated 9 May 2022 appears on the Tribunal file. The second opinion was based on the additional medical information and is the more current. The second opinion varies only in minor respects from the first MOC opinion. The Tribunal satisfied the second MOC opinion is valid. It identifies the applicant’s medical condition as “moderate functional and cognitive likely to be due to autism spectrum disorder as evidenced by developmental delay particularly for speech & language, intellectual disability, and impairment in communication and socialization skills.”

18. Both MOC opinions apply the statutory criteria by reference to a hypothetical person suffering from the same medical condition at the same level of the condition. The two MOC opinions reach the same conclusion, so there is no disadvantage to the applicant in the Tribunal considering the second MOC opinion dated 9 May 2022, which concludes that the applicant does not meet the requirements of PIC 4007, because he does not satisfy PIC 4007(1)(c)(ii)(A).

19. Accordingly, based on the opinion of the MOC, the Tribunal finds that the applicant does not satisfy PIC 4007(1)(c).

    Should the requirements of PIC4007(1)(c) be waived?

20. The requirement in PIC 4007(1)(c) to be free of a disease or condition that would impact on health or community services, may be waived if among other things, the decision-maker is satisfied that the granting of the visa would be unlikely to result in either ‘undue cost’ to the Australian community or ‘undue prejudice’ to the access to health care or community services of an Australian citizen or permanent resident: 4007(2).

21. The evaluative judgment of whether the cost to the Australian community or prejudice to others is ‘undue’ may import considerations of compassionate or other circumstances: Bui v MIMA (1999) 85 FCR 134 (‘Bui’) at 47. Over and above the consideration of the likelihood that cost or prejudice will be ‘undue’ there is also the discretionary element of the ministerial waiver. And within that discretion, compassionate circumstances or compelling circumstances may be relevant: Bui at 47. Departmental policy guidance on the exercise of this discretion is contained in the Procedures Advice Manual (‘PAM 3’). Broadly speaking, these relate to: family links in Australia and the impact on family members; occupational skills of the applicant or family members; assets or factors that may mitigate the costs or prejudice to access to care or services involved; available support from family or community groups; potential contribution to Australia by the applicant or family members; the immigration history of the applicant; other compelling and compassionate circumstances including location of the applicant and family members; and any other relevant factors.

22. The decision record records that on 2 May 2018 submissions were received in relation to waiving the requirements of PIC 4007, but there is no record of the analysis of the submissions. The delegate simply notes that the decision was made not to waive the requirements.

23. The Tribunal considered the submissions provided on behalf of the applicant and  is satisfied the requirements of PIC 4007 should be waived in these circumstances because: there are relevant compassionate or compelling circumstances; the applicant has family links in Australia; the applicant’s parents have occupational skills of value to the Australian community; consideration of Convention of the Rights of the Child (CROC) is relevant; and finally, support is available from the applicant’s parents who have the financial means to mitigate the applicant’s anticipated health costs.

24. The applicant does not meet the requirements of PIC 4007(1)(c)(ii)(A) because the MOC concluded that the provision of the health care and community services the hypothetical person with the same medical condition at the same level of severity as the applicant would be likely to result in a significant cost to the Australian community in the areas of health care and community services. 

25. The Tribunal note that the estimate of costs attached to the second MOC opinion dated 9 May 2022 was assessed as a total of $678,600, the breakdown of the costs bring as follows:

    •    Commonwealth disability services:  $399,800

    •      Special education services:  $278,800. 

26. Having assessed the submissions arguing for waiver of the PIC 4007 requirements and given the currency of the second MOC opinion, the Tribunal is of the view that the applicant (and his parents) should not be put to the expense of seeking a third MOC opinion in some four years in order to recalculate the estimated costs to the Australian community. The Tribunal has assessed the requirements based on the second MOC opinion and Health Waiver estimates.

27. The Tribunal notes the Department’s concerns when it initially refused to waive the requirements of PIC4007(1)(c). Factors taken into account in support of that refusal of waiver included, the sponsor (the applicant’s mother) arriving in Australia in October 2005 as the holder of a Skilled Independent visa, however she stayed just two days before departing Australia and remaining offshore for two and a half years. Since her first arrival up to the date of the Health Waiver refusal on 23 August 2018, the sponsor had spent only 20 months in Australia.  Similarly the applicant’s father was granted a Permanent visa in 2008 yet had spent approximately 40 days in Australia up to the date of the Health Waiver refusal on 23 August 2018. Other factors included the fact that at the time of the waiver refusal, the applicant’s father ordinarily lived in Singapore whilst his mother and the three children (including the applicant) lived in Australia. Evidence submitted at the time in support of the parents’ education and occupational skills also did not satisfy the Department.

28. It should also be noted that the first MOC opinion dated 29 March 2018 estimated the total costs to the Australian community (for the services required by the applicant) to be significantly higher at $6,149,700.  As noted above the estimate of costs attached to the second MOC opinion dated 9 May 2022 was assessed as a total of $678,600 – almost one-tenth of the first MOC assessment.

29. The Tribunal is satisfied that in the intervening four years between the two MOC opinions the applicant’s parents have consolidated their lives and their assets and committed their future to being in Australia, rather than in Singapore.  It is noted that the applicant’s mother (the sponsor) holds a Bachelor of [Subject 1], majoring in [Major 1] and [Major 2] from [University 1, Australia]. She also holds a Diploma in [Subject 2] from [Institution, Singapore]. She is completing a Master of [Subject 3] at [University 2, Australia] for which she has been awarded a scholarship under [a Victorian Government Department Program].  The Tribunal accepts that [Specialised Occupation 1]s are in high demand in Victoria. Since commencing her Masters’ studies, the sponsor has been employed as a Casual [Occupation 2].

30. The applicant’s father holds a Bachelor of [Subject 4] and Master of [Subject 5] from Universities in Singapore. He has some 18 years of work experience in the [Work] sector. He is currently employed as [an Occupation 2] in a specialised [company] within the [Works sector] industry. There is a shortage of people in the Australian work force with his qualifications and experience. This is evidenced by the inclusion of these occupations on the Department’s Priority Migration Skilled Occupation List. Both parents are fluent in English, having been raised and studied in multi-lingual Singapore.

31. As set out in detail in the representative’s written submission, the sponsor and her husband jointly own a property in [Suburb], Victoria. The sponsor also owns two other properties in Victoria in her name. The family live in one property and obtain rental income from the other two. They also own a property in Singapore which earns them rental income.  The parents’ salaries, investment assets, superannuation and life insurance policies are described in the submission, supported by documentary evidence. The Tribunal is satisfied that the applicant’s parents have access to significant funds, far in excess of the assessed cost of $678,600. These funds appear able to be readily liquidated and available to cover the cost of any treatment that the applicant might require without causing undue cost on the Australian community. Moreover the Tribunal is satisfied that the sponsor’s husband’s salary and revenue-based incentives are by themselves enough to meet any unexpected or additional costs of any services required by the applicant.

32. It may have been true that around the time of their first arrival in Australia the sponsor’s husband lived mainly in Singapore whilst the sponsor lived with the children in Australia, however the Tribunal accepts that for the past several years, the applicant has resided with his parents and his siblings in the family home in [Suburb], Victoria and that his parents are both employed in Victoria with each contributing skills to the State which are considered to be in high demand.

33. The Tribunal is satisfied that the applicant’s parents provide support and care to assist the applicant overcome the developmental delay he suffers.  The Tribunal is satisfied, based on the reports provided, that the applicant’s parents consulted specialists and therapists to assist the applicant. These costs, as well as all the children’s school fees have been, and continue to be, borne entirely by them. The Tribunal concludes that the applicant’s parents have through their care, structured routines and by engaging specialists and therapists, have provided consistent support to the applicant which continues to yield encouraging results for him.

34. The Tribunal notes the encouraging reports in respect of the applicant’s improving learning and social skills.  In a report from his paediatrician dated 29 June 2022, the applicant’s steady progress and increasing independence with his ‘self-help skills’ are noted, as is the “tremendous support that the family have continued to provide him.”  The applicant’s classroom teacher writes in July 2022, that the applicant,

    .. has shown development in his reading, writing and number skills this year and requires less adult assistance to complete his learning tasks as the year goes on. The consistent routine of attending school daily has helped [the applicant] in feeling safe at school, developed
    his life skills, reduced anxieties and built healthy habits…

    He has increased in his ability to communicate verbally, as well as with the use of his communication device. [The applicant] is always punctual and cooperative at school and shows engagement during set tasks alongside e his classmates…

    [The applicant] is well on his way to completing his school goals by the end of the year, relating to reading, writing, number and personal and social capability. We have strong aspirations that [the applicant]’s social skills and intellectual abilities will continue to grow into the future …

35. The Tribunal is satisfied that if the applicant was not granted the visa and was required to depart Australia, due to his age one of his parents would have to depart Australia immediately with him, to continue to provide the care he requires. The Tribunal notes the sponsor’s Australian citizenship application has recently been approved. Since Singapore does not allow for dual citizenship, the sponsor would need to renounce her Singapore citizenship in order to take up Australian citizenship. The Tribunal accepts this highlights the seriousness of the family’s intention to remain in Australia permanently, as does the fact that the applicant’s father and his two siblings are all Australian permanent residents.

36. Whilst acknowledging that the applicant’s father has in the past remained in Singapore whilst the sponsor and children have lived in Australia, the Tribunal accepts that the parents do not intend to repeat that family separation and should the applicant not be granted permanent residency they will return to Singapore. The Tribunal accepts that leaving Australia would adversely affect the two other children who appear to be well settled in Australia.

37. In short, the Tribunal accepts of the representative’s submissions regarding the parents’ economic value to Australia, their sufficient financial means and the other mitigating factors such as the applicant’s age and his encouraging progress due to the continuing support of his parents and teachers and ongoing paediatric care.

38. For all the above reasons, The Tribunal is satisfied that the grant of the visa to the applicant would not be likely to result in undue cost to the Australian community in the provision of health care and community services to the applicant.

1. For these reasons, the Tribunal is satisfied that the granting of the visa would be unlikely to result in undue cost or undue prejudice within the terms of PIC 4007(2)(b). Therefore PIC 4007(1)(c) may be waived subject to the applicant satisfying all other requirements for the visa.

2. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for the visa.

   decision

3. The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 (Child) visa:

   · PIC 4007(2)(b) for the purposes of cl.802.223 of Schedule 2 to the Regulations

   Stephen Conwell
   Member

   ATTACHMENT – RELEVANT LAW

   Migration Regulations 1994

   1.03     Definitions

   …

   dependent child, of a person, means the child or step-child of the person (other than a child or step-child who is engaged to be married or has a spouse or de facto partner), being a child or step-child who:

   (a)has not turned 18; or

   (b)has turned 18 and:

   (i)       is dependent on that person; or

   (ii)      is incapacitated for work due to the total or partial loss of the child’s or step-child’s bodily or mental functions.

   …

   step-child, in relation to a parent, means:

   (a)a person who is not the child of the parent but who is the child of the parent’s current spouse or de facto partner; or

   (b)a person who is not the child of the parent but:

   (i)       who is the child of the parent’s former spouse or former de facto partner; and

   (ii)      who has not turned 18; and

   (iii)     in relation to whom the parent has:

   (A)a parenting order in force under the Family Law Act 1975 under which the parent is the person with whom a child is to live, or who is to be responsible for the child's long-term or day-to-day care, welfare and development; or

   (B)guardianship or custody, whether jointly or otherwise, under a Commonwealth, State or Territory law or a law in force in a foreign country.

   1.05A Dependent

   (1)Subject to subregulation (2), a person (the first person) is dependent on another person if:

   (a)at the time when it is necessary to establish whether the first person is dependent on the other person:

   (i)       the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and

   (ii)      the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or

   (b)the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.

   …