Appleton (Migration)

[2020] AATA 3621

Appleton (Migration) [2020] AATA 3621 (18 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Jean Margaret Appleton

CASE NUMBER:  1924493

DIBP REFERENCE(S):  CLF2016/89772

MEMBER:Mary Urquhart

DATE:18 August 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Contributory Aged Parent (Residence) (Class DG) visa.

Statement made on 18 August 2020 at 10:57am

CATCHWORDS
MIGRATION – Contributory Aged Parent (Residence) (Class DG) visa – Subclass 864 (Contributory Aged Parent) – health criteria – Asymptomatic Polycythaemia vera – MOC opinion – long term specialist care services required – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.25A; Schedule 2, cl 864.223; Schedule 4, PIC 4005

CASES
Ramlu v MIMIA [2005] FMCA 1735
Robinson v MIMIA (2005) 148 FCR 182

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 21 August 2019 to refuse to grant the applicant a Contributory Aged Parent (Residence) (Class DG) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 21 November 2016. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.864.223 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 Tribunal invited the applicant, in writing, to a hearing on 31 August 2020 to give evidence and present arguments. In response to the hearing invitation the applicant replied on 17 August 2020 declining the hearing invitation and consenting to the matter being decided on the papers without any further opportunity for the applicant to appear before the Tribunal.

4. The Tribunal proceeded to determine the application.

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

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.

8. The applicant in this case is a 75year old person with Asymptomatic Polycythaemia vera.

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

9. 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.

10. 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).

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

12. 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?

13. 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.

14. On 15 March 2019 the MOC gave an opinion that the applicant did not meet the health criteria for the visa.

15. On 11 December 2019 the applicant was invited inter alia to seek a further MOC opinion. The applicant did not consent to a further MOC opinion.

16. The MOC opinion dated 15 March 2029 states as follows:

17. The applicant is a “74” year old person with Asymptomatic Polycythaemia vera. The MOC refers to the form and severity of the illness and states the applicant requires treatment with immunomodulator. The MOC considers that a hypothetical person with the same condition, and the same severity as the applicant, would be likely to require long term specialist care services but not limited to ongoing immunomodulatory treatment. The MOC considers the condition is likely to be Permanent.

18. The MOC states the applicant would require health care or community services and that these services would be likely to include Medical services and Pharmaceuticals.

19. The MOC states that the provision of these health care and/or community services would be likely to result in a significant cost to the Australian community.

20. The MOC records that in preparing their opinion, they have had regard to the information available concerning the applicant.

21. As set out 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. 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.

22. The Tribunal is satisfied that the MOC did not apply the wrong test in this matter.

23. Accordingly, based on the opinion of the MOC, the applicant does not satisfy PIC 4005 (1) (c) (ii) (A). The Tribunal is bound to accept the final assessment of the MOC to be correct for the purposes of deciding whether the applicant satisfies the health criterion.

24. There is no provision for waiver of criterion PIC 4005 in considering applications for Subclass 864 visas. This means the criteria in cl.864.223 cannot be satisfied.

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

    DECISION

26. The Tribunal affirms the decision not to grant the applicant a Contributory Aged Parent (Residence) (Class DG) visa.

    Mary Urquhart
    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.