1925963 (Migration)

[2021] AATA 2612

1925963 (Migration) [2021] AATA 2612 (20 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1925963

MEMBER:David Crawshay

DATE:20 July 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 20 July 2021 at 10:58am

CATCHWORDS
MIGRATION – Aged Parent (Residence) (Class BP) visa – Subclass 804 (Aged Parent) – health criteria – disease or condition likely to require health care or community services –severe dementia, multiple physical conditions and severely limited mobility – opinion by medical officer of commonwealth taken as correct – extended delay between initial MOC examination and notification of decision – compassionate circumstances – unfitness for travel and no family support available in home country – referred for ministerial consideration – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351, 359A
Migration Regulations 1994 (Cth), r 2.25A, Schedule 2, cl 804.225, Schedule 4, criterion 4005(1)(c)(ii)(A)

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 a decision made by a delegate of the Minister for Home Affairs on 28 August 2019 to refuse to grant the applicant a Aged Parent (Residence) (Class BP) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 27 October 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. This was based on an opinion by a Medical Officer of the Commonwealth (MOC) dated 16 September 2016 that the applicant did not meet the health requirement. Specifically, the MOC stated that the applicant did not meet PIC 4005(1)(c)(ii)(A).

3. A hearing was conducted by the Tribunal on 9 July 2021 where [Mr A] attended on the applicant’s behalf to give evidence and present arguments. [Mr A] is the applicant’s son and her sponsor for the present visa. The Tribunal has sighted an enduring power of attorney in respect of the applicant dated 13 May 2015 that appoints the sponsor as her attorney. It is satisfied that this power of attorney operates at present.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this review is whether the 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 is said to suffer from severe dementia causing severe cognitive impairment, as well as multiple medical conditions, age-related decline and severely limited mobility

   Is the applicant free from the relevant diseases or conditions (PIC 4005(1)(a), (b), (c))?

6. 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.

7. 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). However, as the applicant in this case has applied for a permanent visa, the exclusion provision in PIC 4005(3) does not apply.

8. 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?

9. 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.

10. On 9 June 2021, a Review Medical Officer of the Commonwealth (RMOC) gave an opinion in relation to the applicant after such opinion was requested. The opinion relevantly provided as follows:

    The applicant has been assessed against Public Interest Criterion (PIC) 4005 [see attached extract] for the period of a permanent stay in Australia.

    The applicant does not satisfy sub-subparagraph PIC 4005(1)(c)(ii)(A) in Schedule 4 to the Migration Regulations.

    The applicant is a [Age] year old person with:

    -Severe dementia.

    Form and severity of the applicant's condition: the applicant has severe Alzheimer's Disease which causes severe cognitive impairment, combined with multiple medical conditions, age-related decline and severely limited mobility. The applicant requires substantial assistance with activities of daily living, and lives in a residential care home. For the purpose of a RMOC and in line with PIC 4005, the applicant was assessed an [age] year old person to reflect her age at the time of the visa application. Provision of services to a hypothetical person with the applicant's condition: A hypothetical person in Australia with the same condition as the applicant, at the same severity, would be likely to require community services, including but not limited to residential aged care services. This condition is likely to be Permanent.

    I consider that a hypothetical person with this disease or condition, at the same severity as the applicant, would be likely to require health care or community services during the period specified above.

    These services would be likely to include:

    Residential care services

    Provision of these health care and/or community services would be likely to result in a significant cost to the Australian community in the areas of health care and/or community services.

11. Based on the RMOC opinion, on 10 June 2021 the Tribunal sent a s.359A letter to the applicant seeking her comment on or response to the opinion. On 16 June 2021, the sponsor sent an email attaching a letter dated 15 June 2021 that relevantly provided as follows:

    I assume the invitation to comment is to comment on the Examiner’s report only. I have other comments relating to the general process, interpretation, and application of the visa process.

    Comments on the Examiner’s report

    ·It is not surprising that mum’s health has deteriorated in the four or five years between the medicals. As when you are a child, five year sees a huge change in your physiology between [Age] and [Age] years old.

    ·It is not surprising that the Medical Examiner reported that [the applicant]’s health did not presently meet the required standard has they had previously stated that her health did not meet the standard several years ago. Your health rarely improves between the years of [Age] and [Age].

    ·The BUPA contract with the Federal Government is a very lucrative, they are always going to err on the side of caution with these decisions.

    ·BUPA would have been very unlikely to make a decision that reversed or contradicted their previous decision.

    ·Maybe in future cases the medical reports could be revisited by an independent medical body.

    As I have mentioned above, I have other comments that relate to the original medical examination and the consequential Medical Examiner’s report. I assume that will be required at a subsequent date.

12. Over the weeks leading up to the hearing, the sponsor also submitted a number of other documents. Among these were a copy of a letter dated 15 April 2019 that was originally sent to the Department at the visa processing stage. This letter sought to give reasons why the applicant should be permitted to stay in Australia, from a compassionate point-of-view but also after having taken into account factors that mitigated against her being a financial burden. A further document (undated but sent on 7 July 2021), gave a timeline of events to do with the visa and review applications. Within this document, the sponsor highlighted the two years and seven months that elapsed between when the opinion was made in September 2016 and that opinion being communicated to the applicant in April 2019. A letter from the applicant’s GP dated 18 May 2021 listed her medical history, including details of a fall in 2017 that resulted in a fracture of her [bones]. The letter also relevantly stated as follows:

    Apart from the obvious difficulties with her undertaking any kind of travelling whatsoever, there would likely be issues with the engendered agitation from such an event as international travel that could cause issues in-flight and be unacceptable to any airline.

    Also she would also have no functional family support in the UK which she does have here in Perth.

13. Finally, an undated photograph of the [A] family was provided, showing the applicant with the sponsor’s family including his wife, two [children] and two grandchildren.

14. At hearing, the sponsor reiterated much of what was contained in pre-hearing documents. He highlighted what he termed the unsatisfactory amount of time between the MOC opinion being made and its being communicated to the applicant, telling the Tribunal that, in the meantime, the applicant had suffered a fall. He said that the report from her GP clearly showed that she was not fit to travel anywhere. He said that, in addition to her physical conditions, the applicant’s cognitive condition is such that if she is taken out for an extended period of time, she gets confused.

15. The sponsor told the Tribunal that the applicant was one of eight siblings, all of whom have died. He said that there is one remaining relative in the UK, being one of her nieces. However, this niece is of the same age. He said that, on a practical level, the applicant is already significantly older than her siblings when they died.

16. The sponsor said that, if the applicant were to survive travelling back to the UK and the COVID-19 pandemic, then he and his family would probably never see her again.

17. The Tribunal has considered the RMOC opinion. It has considered that it identifies the medical condition to which the public interest criterion has been applied and the form or level of the condition. It has considered that the RMOC has referred to the hypothetical person who suffers from the form or level of the applicant’s condition.

18. The Tribunal is satisfied that the RMOC has applied the correct test in relation to the applicant and is current. It should therefore be taken to be correct.

19. The Tribunal has considered the evidence before it, including the sponsor’s testimony at hearing, and acknowledges the difficult circumstances facing the applicant and the [A] family. However, it has also considered that it has no discretion in relation to an RMOC opinion that it finds is correct.

20. Accordingly, based on the opinion of the MOC, the applicant does not satisfy public interest criterion 4005(1)(c). As she has not satisfied the requirements of PIC 4005, she does not satisfy cl.804.225 and the Tribunal must affirm the decision under review.

    MINISTERIAL INTERVENTION

21. In matters that are “Part 5-reviewable matters”, of which the present matter is one, s.351 of the Act provides that the minister can substitute for a decision of a review tribunal a decision that is more favourable to a person if he thinks it is in the public interest. The Tribunal specifically notes that cases having one or more unique or exceptional circumstances may be referred to the minister for possible consideration his intervention powers.

22. At hearing, the sponsor told the Tribunal that he was intending to seek a referral of the applicant’s matter to the minister for his intervention. He told it that he had been in discussions about such a referral with his local Federal Member of Parliament, whom he indicated was supportive. The Tribunal gave the sponsor until 19 July 2021 to provide more information in relation to a referral.

23. On 18 July 2021, the sponsor sent the Tribunal an email attaching a letter from the Member for [Electorate], the Hon [Mr B], dated 16 July 2021, as well as a document that it infers is a copy of notes sent to [Mr B] or file notes of a conversation with him or his staff. The latter document relevantly provided as follows:

    Brief History

    ·[The applicant] was in exceptionally good health while in the UK. She rode a push bike everywhere up until her mid-[decade].

    ·When we contacted the Australian embassy in London for advice on migration, we were completely transparent even giving them a transcript of her full National Health record.

    ·[The applicant] was very distraught, on the death of her husband and could not be left alone at that time, as she had NO other family to support her. So, we followed the advice from the Embassy, and she travelled to Australia for a holiday and to apply for permission to stay.

    ·In Australia, it was not possible to get advice from the Department, so we battled our way through the application process.

    ·The process preceded [sic] in a timely way until after the medical examination.

    ·The medical examination went well (we thought) the feedback from the examining doctor was very positive.

    ·The decision that [the applicant] had not passed the medical was made in under a week (Decision Record)

    ·We were not notified of the decision for two years and seven months.

    ·In that period [the applicant]’s had a fall and both her physical condition and her mental health deteriorated to such an extent that international travel is impossible (GP’s Report used by the Medical Officer of the Commonwealth for the recent medical report.)

    ·The Tribunal appeal added a further two years.

    ·Currently her dementia is such that she is still able to recognize me (Son) and my wife and our dog. She also remembers her grand[children] and loves to see her great grandchildren. However, she gets very agitated, confused, and upset if she is away from her residence for more than thirty minutes or so.

    ·[The applicant] has medical conditions that would make it very dangerous for her to travel.

    [The applicant] has no family able to support her in the UK. She has one niece who is the same age and condition as [the applicant].

24. The Tribunal has had regard to the evidence in front of it. This evidence tends to demonstrate that the removal of the applicant from Australia and repatriation to the UK via a lengthy international flight would be extremely difficult and dangerous considering her stated physical and cognitive conditions. It also shows that she relies on the emotional support of the sponsor and his family given her dementia and ability to be easily confused. The Tribunal finds that this support would not exist in the UK where she only has one remaining relative who is of a similar age.

25. Given this evidence, the Tribunal accepts that there are compassionate circumstances regarding the applicant’s health and psychological state that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to her.

26. The Tribunal has had regard to the minister’s guidelines when considering whether to make a referral to him for intervention under s.351, including those relating to “unique or exceptional circumstances”. Based on the evidence in front of it, the Tribunal accepts there are compassionate circumstances regarding the applicant’s health and psychological state that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to her. Accordingly, it has chosen to refer this matter to the minister.

    DECISION

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

    David Crawshay
    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.