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

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).
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).
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.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1925963 (Migration)

Details

AGLC: 1925963 (Migration) [2021] AATA 2612
Case: [2021] AATA 2612
Decision Date: 20 July 2021

CaseChat Overview and Summary

This matter concerned an application for an Aged Parent (Residence) (Class BP) visa, subclass 804. The applicant sought review of a decision not to grant the visa. The primary dispute revolved around whether the applicant met Public Interest Criterion (PIC) 4005, which requires applicants to be free from certain diseases or conditions that could impose a significant cost on the Australian community or prejudice access to health and community services. The applicant suffered from severe dementia, multiple physical conditions, and severely limited mobility. The review was heard by David Crawshay.

The court was required to determine if the applicant satisfied PIC 4005(1)(a), (b), and (c). Specifically, it needed to ascertain if the applicant was free from tuberculosis, a threat to public health, or a condition likely to require significant health or community services at a substantial cost to the Australian community or prejudice access for Australian citizens and permanent residents. The court also had to consider whether a Medical Officer of the Commonwealth (MOC) opinion was required and, if so, whether it was correctly formed and applied.

The court noted that for permanent visa applications, the exclusion provisions for certain health care and community services under PIC 4005(3) did not apply. It was established that a MOC opinion was required, and such an opinion, when properly formed, must be taken as correct by the Tribunal. The Tribunal acknowledged the applicant's severe health conditions, including dementia and limited mobility, and the compassionate circumstances arising from these conditions, which would cause serious hardship if not recognised. Despite these compassionate circumstances, the Tribunal affirmed the decision not to grant the visa, finding that the applicant did not meet the health criteria. The Tribunal did, however, refer the matter for ministerial intervention under section 351, acknowledging the unique and exceptional circumstances.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE 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 mobilityIs the applicant free from the relevant diseases or conditions (PIC 4005(1)(a), (b), (c))? 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. 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. 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? 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.

Decision

Reasons for decision

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 The Tribunal affirms the decision not to grant the applicant an Aged Parent (Residence) (Class BP) visa.David CrawshayMemberATTACHMENTMigration Regulations 1994Schedule 44005(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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.