AHN (Migration)

[2020] AATA 4336

AHN (Migration) [2020] AATA 4336 (16 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Siyeon AHN

CASE NUMBER:  1836327

DIBP REFERENCE(S):  BCC2018/3260742

MEMBER:Mark Bishop

DATE:16 October 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 16 October 2020 at 10:53am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – health criteria – dependent child – severe and permanent functional impairment – cerebral palsy – opinion of medical officer of commonwealth – need for services and assistance likely to result in significant cost to Australian community – mother’s financial capability – mother’s course concluded – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.25A, Schedule 2, cl 500.317, Schedule 4, criterion 4005(1)(c)(ii)(A)

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 4 December 2018 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 29 August 2018. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.500.317 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.

3. The applicant appeared before the Tribunal on 16 October 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

4. The applicant was represented in relation to the review by her registered migration agent.

5. As the applicant was disabled the mother of the applicant advised the Tribunal, she would give evidence on behalf of her daughter. The MA for the applicant also gave evidence to the Tribunal and participated in the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

   Has the applicant complied with a request to undertake a medical assessment (PIC 4005(1)(ab)?

8. Public interest criterion 4005(1)(ab) requires that the applicant comply with any request by a Medical Officer of the Commonwealth (MOC) to undertake a medical assessment.

   Background

9. The applicant applied for a Student Subsequent Entrant / Dependants visa on 29/08/ 2018. There are two previous visa applications as a Subsequent Entrant /Student Dependant were refused on 29/03/2018 and 31/05/2018 as the applicant did not meet PIC 4005.

10. For the current application a new Health Case was generated, and the case was re-assessed by a Medical Officer of the Commonwealth (MOC). The Assessment Status on 12/10/2018 shows Does Not Meet.

11. A Medical Officer of the Commonwealth (MOC) has stated that the applicant has been assessed against Public Interest Criterion (PIC) 4005 and been found to not meet the health requirement with the following details given by the MOC:

    • Condition: functional impairment
    • Severity: Severe
    • Outcome: Permanent
    • Form and severity of the applicant's condition: The applicant has a severe functional

    impairment on a background of cerebral palsy. She is wheelchair bound, dependent in most of her Activities of Daily Living and will attend a special class in a mainstream school.

    • Provision of services to a hypothetical person with the applicant's condition: A hypothetical person with the same condition of a similar severity would require state disability services, as well as special education 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:

    oSpecial education services

    oState disability 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.
    • In preparing this opinion, I have had regard to the information available to date concerning the applicant, including, but not limited to the visa medical assessment and associated investigations (dated 11/10/2018); the report from Hwajeop Elementary School (dated 08/05/2018); and the report from Treating doctor- Dr J Kim (dated 02/05/2018).

12. On 02/11/2018 a natural justice letter was sent to the applicant for comment on the above medical outcome. On 20/11/2018 the mother of the applicant advised the Department in writing about her circumstance and emphasised her financial capability to support herself and her daughter while studying in Australia.

13. The applicant lodged her TU – 500 (Student) visa on 29 August 2018 and was refused on 4 December 2018. She lodged an application to review this decision with the Tribunal on 11 December 2018.

    Request for Information

14. On 15 July 2020 the Tribunal invited the applicant to comment on or respond to information and opportunity to obtain a further Opinion

    Invitation to comment on or respond to information

    In conducting our review, we are required by the Migration Act to invite you to
    comment on or respond to certain information which we consider would, subject to
    your comments or response, be the reason, or a part of the reason, for affirming the
    decision under review.

    Please note, however, that we have not made up our mind about the information.

    The particulars of the information are:

    • An opinion from a Medical Officer of the Commonwealth (MOC) that Ms Siyeon

    AHN does not meet public interest criterion 4005(1)(c). A copy of the opinion is

    attached.

    • This information is relevant to the review because a criterion for the visa (clause

    500.317 in Schedule 2 to the Migration Regulations 1994) requires that Ms Siyeon

    AHN meets public interest criterion 4005 (PIC 4005). If this criterion is not met, the

    visa cannot be granted, and we must affirm the decision under review.

    • A copy of PIC 4005 and regulation 2.25A, which states that we must take an opinion of the Medical Officer of the Commonwealth to be correct, is attached.
    • You are invited to give comments on or respond to the above information in writing.
    • Your comments or response should be received by 29 July 2020. If the comments or

    response are in a language other than English, they must be accompanied by an English translation from an accredited translator.

15. On 15 July 2020 the applicant responded to the Tribunal’s letter informing that she wishes to follow under the Tribunal’s instruction or by a Medical officer of the Commonwealth in relation to further medical examination. She enclosed a payment receipt of Further Opinion of a Commonwealth Medical Officer.

16. On 22 September 2020 the Tribunal wrote to the Department that the review applicant has indicated to us that she wishes to obtain a further medical opinion from a Medical Officer of the Commonwealth (MOC) and she has paid the review medical fee of $520 (receipt enclosed). A referral to a MOC for further medical opinion with supporting documents were provided.   At the time of decision the applicant had not provided a further medical opinion to the Tribunal.

17. On 24 September 2020 the Department wrote back to the Tribunal informing that the applicant has been assessed against Public Interest Criterion (PIC) 4005 [see attached extract] for the period of 5 years. The applicant does not satisfy sub-subparagraph PIC 4005(1)(c)(ii)(A) in Schedule 4 to the Migration Regulations.

18. On 28 September 2020 the Tribunal invited the applicant to appear before the Administrative Appeals Tribunal by telephone to give evidence and present arguments.

19. On 12 October 2020 the representative responded to the Tribunal’s letter dated 28 September 2020 as follows:

    ·This is in response of your letter dated on 28 Sep 2020.

    ·In the past two years, Siyeon Ahn hasn't changed much in her health. Siyeon (Amy) AHN has been at Karonga School since 9 Sep 2019, currently she is doing well at school.

    ·Both she and her family have adequate health insurance. Her family is not covered by Australian Medicare, no medical burden on Australian community. Furthermore, they have enough funds to cover all their medical expenses.

    ·They have complied with student visa conditions and respect Australian values and laws.

    ·She has an intellectual disability and wants her parents to respond during the hearing. Please arrange Korean Interpreter. Siyeon, her parents, and agent will be present at my office via speaker phone at Hearing.

    ·Attachment: School Reports, Hearing Response, BUPA Health Cover

20. The applicant’s mother is the holder of a Student Visa and advised her current course concluded in March 2020 and she wished to remain in Australia with her family at least until that date and possibly as late as December 2021

21. There is no information before the Tribunal that the applicant made arrangements to undertake a further health examination at any time up till the time of decision.

22. At the hearing on 16 October 2020 the applicant’s mother and MA both confirmed the applicant had not undergone a further medical examination and could not provide a further medical opinion to the Tribunal.

23. The MA for the applicant advised the Tribunal he did not have any further documentation, inclusive of medical opinions to provide to the Tribunal.

24. The only information before the Tribunal is an opinion from a Medical Officer of the Commonwealth (MOC) that Ms Siyeon AHN does not meet public interest criterion 4005(1)(c). The Tribunal notes this medical opinion was provided to the applicant on 15 July 2020.

25. There is no evidence before the Tribunal that the applicant satisfies sub-subparagraph PIC 4005(1)(c)(ii)(A) in Schedule 4 to the Migration Regulations.

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

27. Therefore the applicant does not satisfy PIC 4005(1).

    CONCLUDING PARAGRAPHS

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

29. As clause 500.317 is not met by the applicant, the Tribunal finds the criteria for the grant of Student (Subsequent Entrant) visa are not met by the applicant. Therefore, the Tribunal refuses the application by the applicant for Student (Subsequent Entrant) visa.

    DECISION

30. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

    Mark Bishop
    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.