Arora (Migration)

[2018] AATA 3021

Arora (Migration) [2018] AATA 3021 (12 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Sachinderpal Singh Arora

VISA APPLICANTS:  Mrs Kuldeep Kaur
Mr Manmohan Singh

CASE NUMBER:  1726755

DIBP REFERENCE(S):  2014/090314

MEMBER:Russell Matheson

DATE:12 July 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicants Contributory Parent (Temporary) (Class UT) visas.

Statement made on 12 July 2018 at 11:11am

CATCHWORDS
Migration – Contributory Parent (Temporary) (Class UT) visa – Subclass 173 (Contributory Parent (Temporary)) – Health requirement – Migrating dependent child – MOC opinion – Moderate cognitive impairment – Significant costs to Australian community – Requires ongoing specialist management and pharmaceutical services – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 173.226, 173.323, Schedule 4 PIC4005

CASES
Ramlu v MIMIA [2005] FMCA 1735
Robinson v MIMIA 92005) 148 FCR 182

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 30 August 2017 to refuse to grant the visa applicants Contributory Parent (Temporary) (Class UT) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 16 June 2014. The delegate refused to grant the visa on the basis that the first named visa applicant (now referred to as the visa applicant) did not satisfy cl.173.226 and 173.323 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 review applicant Mr Sachinderpal Singh Arora and a witness, Simpy Arora (the review applicant’s spouse) appeared before the Tribunal on 11 July 2018 to give evidence. The review applicant represented himself and no interpreter was required.

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

5. RELEVANT LAW

   A visa cannot be granted unless the applicants meet the relevant legal requirements that are specified in the Act and the Regulations.

6. The legal requirements in clauses 173.226 and 173.323 in Schedule 2 of the Regulations have not been met by the applicants on the time of decision criterion.

7. The applicant has been considered against the following time of decision criterion.

   Clause 173.226

   (1)Each member of the family unit who is an applicant for a Subclass 173 visa is a person who:

   (a)satisfies public interest criteria 4001, 4002, 4003,4004,4005, 4009, 4010 and 4020; and

   (aa)if the person had turned 18 at the time of application, satisfies public interest criterion 4019; and

   (b)if he or she has previously been in Australia, satisfies special return criteria 5001,5002 and 5010.

   Clause 173.323

   (2)      If the applicant is not a contributory parent newborn child, the applicant:

   (a)  satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4009 and 4010; and

   (b)   if the applicant had turned 18 at the time of application — satisfies public interest       criterion 4019.

   Public interest criteria

   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);

8. 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this review is whether the visa applicant meets the 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.

10. The applicant in this case, Mrs Kuldeep Kaur failed to meet the health requirements because the migrating dependent child, Mr Manmohan Singh does not meet the prescribed health requirements outlined in PIC 4005. Mr Singh failed to meet the health requirements because he has moderate cognitive impairment due to Down syndrome which the MOC assessed as representing a significant cost to the Australian community.

11. An application for a Contributory Parent – Temporary (subclass 173) visa was lodged at the Parent Visa Centre for Ms Kuldeep Kaur on 16 June 2014. Mrs Kaur’s son, Mr Manmohan Singh, was listed a migrating dependent child over 18 years of age.

12. On 19 August 2016, the Department e-mailed a letter to the applicants to request that they undertake medical examinations as part of the assessment process.

13. The applicants sat their medical examinations on 05 September 2016. On 08 September 2016, a Medical Officer of the Commonwealth (MOC) advised that the health criterion was satisfied by Ms Kaur. On 20 September 2016, MOC provided the opinion that Mr Singh did not meet the health criteria as set out in PIC 4005.

14. On 10 January 2017, a letter was e-mailed to the authorised recipient, giving the applicants the opportunity to comment on the decision, and submit additional medical information/reports for Mr Singh in order for the outcome to be reviewed by MOC.

15. The Department received a medical report for Mr Singh from the applicants on 07 March 2017. The document was forwarded to the MOC for further assessment of Mr Singh’s health outcome on 08 March 2017

16. On 9 March 2017, MOC provided the opinion that Mr Singh did not meet the health criteria as set out in PIC 4005 for the second time.

17. On 8 December 2017 the Tribunal requested the MOC to provide an updated opinion. On 19 December 2017, MOC provided the opinion that Mr Singh did not meet the health criteria as set out in PIC 4005 for the third time.

18. The review applicant and the review applicant’s spouse appeared before the Tribunal and stated that they are prepared provide care and to support the secondary applicant. The review applicant and witness told the Tribunal that the secondary applicant responds well to instructions and has the capacity with further training to be gainfully employed. The review applicant told the Tribunal that he operates a motel business and he would employ the secondary applicant. The review applicant provided a USB video demonstrating the activities, ability and daily living of the secondary applicant. They further stated that he is able to perform household chores, is aware of his surroundings and very active. The Tribunal accepts that the review applicant is prepared to offer care, support and financial assistance to the secondary applicant.

19. The review applicant also provided a copy of a report from Roma Kumar, PhD, Senior Consultant Clinical Psychologist at Sir Ganga Ram Hospital New Delhi, India, of tests conducted on the secondary applicant (Mr Manmohan Singh) from February 2-8, 2017. This MOC gave the report due regard when providing an opinion and assessing the secondary applicant against PIC 4005. The Tribunal accepts that the secondary applicant has a moderate cognitive impairment due to Down syndrome.

20. Clause 173.323 stipulates that any secondary applicant must satisfy the secondary criteria. These criteria include the specified PIC, one of which is PIC 4005, the health criterion. As the secondary applicant, Mr Manmohan Singh, does not meet the prescribed health requirements, he does not satisfy clause 173.323 of the Regulations.

21. Clause 173.226 requires the primary visa applicant to satisfy the primary criteria. It stipulates that any member of the primary visa applicant’s family unit who is a visa applicant must satisfy PIC 4005. As stated above, the migrating dependent child, Mr Manmohan Singh, does not meet the prescribed health requirements outlined in PIC 4005. Therefore, as a member of her family unit does not meet a specified criterion, the primary visa applicant Ms Kuldeep Kaur does not satisfy clause 173.226 of the Regulations.

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

22. PIC 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.

23. 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).

24. In determining whether a person meets PIC 4005(1)(a), (b) or (c) r.2.25A requires the Tribunal to seek the opinion of an 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 an MOC is required, the Tribunal must take it be correct: r.2.25A(3).

    Is an MOC opinion required?

25. On the evidence before the Tribunal, an 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.

26. The MOC opinion dated 19 December 2017 indicates that the migrating dependent child, Mr Manmohan Singh does not meet the prescribed health requirements outlined in PIC 4005. Mr Singh failed to meet the health requirements because he has moderate cognitive impairment due to Down syndrome which the MOC assessed as representing a significant cost to the Australian community. These conditions are likely to be permanent.

27. The MOC opinion states 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 for the period of permanent stay in Australia. These services would be likely to include:

    ·Commonwealth disability services

    ·State disability services

    ·Residential care services

28. The MOC opinion was prepared in regard to the information available to date concerning the applicant, including, but not limited to the visa medical assessment, including an assessment of the activities of daily living (dated 5 September 2016), report from psychologist Dr Kumar, based on assessments (dated 2,6, and 8 December 2017).

29. The MOC opinion states that a hypothetical person with the same condition and severity as the applicant would require ongoing specialist management and pharmaceutical services to stabilise the condition. 

30. Specifically, the Tribunal is satisfied that the MOC opinion identified Mr Singh’s condition to which PIC 4005 have been applied, ascertained the form or level of condition suffered by him and applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the conditions. Accordingly the Tribunal is satisfied the MOC opinion is valid.

    FINDINGS

31. The Tribunal is bound to accept the final assessment of the MOC to be correct for the purposes of deciding whether Mr Singh satisfies the relevant health condition. Accordingly, based on the opinion of the MOC, Mr Singh does not satisfy the health requirements outlined in PIC 4005. It follows that the primary visa applicant Mrs Kaur does not satisfy cl.173.226 as Mr Singh is a member of her family unit. Accordingly the Tribunal must affirm the decision to refuse the primary applicant’s visa.

32. As Mr Singh does not satisfy PIC 4005, he is unable to meet cl.173.323. Further, as the primary visa applicant does not meet the criteria for the grant of the visa, it follows that Mrs Kaur cannot meet cl.173.226. Accordingly the Tribunal must also affirm the decision to refuse the secondary applicants visa.

    DECISION

33. The Tribunal affirms the decision not to grant the visa applicants Contributory Parent (Temporary) (Class UT) visas.

    Russell Matheson
    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.