AUNG WIN (Migration)

[2018] AATA 4499

AUNG WIN (Migration) [2018] AATA 4499 (21 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Tan Khin Yone AUNG WIN
Ms Mya Mya Win LEE LYE HWAT

CASE NUMBER:  1816058

DIBP REFERENCE(S):  CLF2018/45191

MEMBER:Hugh Sanderson

DATE:21 September 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Contributory Aged Parent (Residence) (Class DG) visas.

Statement made on 21 September 2018 at 10:05am

CATCHWORDS
MIGRATION – Contributory Aged Parent (Residence) (Class DG) – Subclass 864 (Contributory Aged Parent) – adverse Medical Officer of the Commonwealth opinion – second named applicant – cognitive and physical impairment – circumstances beyond the applicant’s control – motor vehicle accident – family support in Australia – ministerial intervention referral – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.25A Schedule 2 cls 864.223, 864.227, 864.324 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 decisions made by a delegate of the Minister for Immigration on 31 May 2018 to refuse to grant the applicants Contributory Aged Parent (Residence) (Class DG) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 26 April 2018. The delegate refused to grant the visa on the basis that the first named applicant (now referred to as 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.

   Background

3. The applicants are citizens of Myanmar. The applicant is currently 70 years old and the second named applicant, his wife, is 60 years old. They were sponsored in their application by their daughter, Soe Sandar Aung, who is an Australian citizen.

4. The applicant and his wife arrived in Australia on 28 August 2017 holding Subclass 600 Visitor visas. The applicant and his wife were involved in a motor vehicle accident on 13 October 2017 which caused the applicant’s wife significant injuries. In March 2018 the Department approved a request for the waiver of the no further stay condition which was on their Visitor visa. The current application was then filed.

5. The applicant and his wife undertook the required health assessment from an approved medical provider. The Medical Officer of the Commonwealth (MOC) found that although the applicant satisfied the health criteria, it was found that the second named applicant, as a result of the motor vehicle accident, suffered from significant cognitive and physical impairment requiring full time care and assistance. The MOC concluded that the second named applicant did not satisfy the health criteria pursuant to PIC 4005.

6. The Department contacted the applicants and invited them to comment on this information. The applicant’s agent advised the Department that they did not wish to comment and asked for the matter to be determined.

7. The delegate who considered the application found that as a member of the family unit of the applicant did not meet PIC 4005, the applicant did not satisfy the criteria in cl.864.227. Further, as the second named applicant did not meet PIC 4005 she did not satisfy the criteria in cl.864.324. Accordingly, the applications were refused.

8. The applicant’s agent wrote to the Tribunal on 17 September 2018 acknowledging that the Tribunal was required to accept the MOC’s opinion. Accordingly, the applicants would not meet the criteria for the grant of the visa. It was requested that the Tribunal support a request for Ministerial intervention. Various documents were provided in support of that application.

9. The applicants appeared before the Tribunal on 20 September 2018 to give evidence and present arguments. The Tribunal received oral evidence from the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Burmese and English languages.

10. The applicants were represented in relation to the review by their registered migration agent.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in this review is whether the visa applicant meets PIC 4005 as required by the criteria for the grant of the visa. PIC 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 second named applicant in this case suffers from severe functional impairment arising from a motor vehicle accident.

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

13. 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.

14. PIC 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).

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

16. 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?

17. 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.

18. The MOC has provided an opinion which finds that the second named applicant does not meet the health requirement. The MOC has applied the correct test in coming to this opinion and has identified the medical condition which the second named applicant suffers from. There is no information before the Tribunal that would indicate that the opinion of the MOC is flawed in any way.

19. Based on the opinion of the MOC, the second named applicant does not satisfy PIC 4005(1)(c). As the second named applicant does not meet PIC 4005, the applicant does not meet the criteria in cl.864.227 and the second named applicant does not meet the criteria in cl.864.324. Accordingly, the Tribunal must affirm the decision under review.

    Ministerial intervention

20. The applicants, through their agent, have acknowledged that they do not meet the criteria for the grant of the visa due to the condition suffered by the second named applicant. They have requested the Tribunal support a request for Ministerial intervention. In all the circumstances, the Tribunal supports this request.

21. The reasons why the Tribunal has concluded that this matter would be appropriate for Ministerial intervention were as follows:

    ·     The visa applicants were in Australia on Visitor visas to assist their daughter at the time of the birth of her first child;

    ·     There was the intention of the parties to apply at some stage in the future for a Contributory Parent visa, however, the accident that occurred on 13 October 2017 has prompted the current application being made;

    ·     Both the applicant and his wife suffered serious injuries, through no fault of their own as a result of being struck by a car with the most significant injury suffered by the wife, including an extremely severe traumatic brain injury, and it is a result of those injuries that she does not meet the health criteria;

    ·     As the injuries were caused from a motor vehicle accident she has been accepted by icare lifetime care who will be responsible for funding all her injury related treatment, rehabilitation and care costs and this is likely to continue for as long as she requires such treatment or care;

    ·     The funding for the care would continue if the applicants were required to return to Myanmar and so the costs for the care would be incurred irrespective of whether or not the visa was granted;

    ·     The applicants currently have the support of their two daughters, who are medical practitioners as is their son-in-law;

    ·     The applicant’s daughter (their sponsor) has made arrangements so that she is able to provide continuing care for her parents in her home;

    ·     As the sponsor’s mother has suffered a traumatic brain injury her separation from her daughters would cause her undue stress and exacerbate her condition;

    ·     Although the applicant’s wife has her 90-year-old mother and two brothers who continue to reside in Myanmar, the majority of the family reside in Australia and she would not be able to obtain the family support that she has in Australia;

    ·     If the applicants were required to return to Myanmar it would cause continuing hardship and distress for their family in Australia who are Australian citizens or residents;

    ·     The applicants currently own an apartment in Myanmar where they have been living, however, the conditions in Myanmar would make it difficult for the applicant’s wife as she is restricted to a wheelchair and it is likely she would be restricted to remaining in her home.

22. Extensive material has been provided by the applicant including medical records, details of the accident, and confirmation of the continuing care from icare lifetime care to support the arguments that have been made that this is a matter appropriate for Ministerial intervention. In the unique circumstances of this case where the applicants have not met the health criteria due to a motor vehicle accident that happened, through no fault of their own, in Australia, and the costs for the health care services required will be covered by icare lifetime care regardless of whether the applicants are in Australia or not, the Tribunal concludes that the application is deserving of Ministerial intervention.

    DECISION

23. The Tribunal affirms the decision not to grant the applicants Contributory Aged Parent (Residence) (Class DG) visas.

    Hugh Sanderson
    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.