Azim (Migration)

[2021] AATA 1250

Azim (Migration) [2021] AATA 1250 (15 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Master Md Jawad Al Azim

CASE NUMBER:  1908780

HOME AFFAIRS REFERENCE(S):          CLF2018/2358

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:Peter Smith

DATE:15 March 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 (Child) visa:

·PIC 4007(1)(c) for the purposes of cl 802.223 of Schedule 2 to the Regulations; and

·PIC 4007(2)(b) for the purposes of cl 802.223 of Schedule 2 to the Regulations.

Statement made on 15 March 2021 at 4:25pm

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – health criteria – Medical Officer of the Commonwealth opinion – undue cost to the Australian community – compassionate or compelling circumstances – employment in regional Australia – occupations currently in demand – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 65, 501
Migration Regulations 1994, Schedule 2, cl 802.223; Schedule 4 Public Interest Criterion 4007; r 2.25

CASES

Bui v MIMA (1999) 85 FCR 134
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 Home Affairs (the delegate) on 4 April 2019 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant (the applicant) applied for the visa on 15 January 2018. The delegate refused to grant the visa as the applicant did not satisfy cl 802.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4007 of Schedule 4 to the Regulations was not met.

3. On 10 April 2019, the applicant applied for merits review and provided the Tribunal with a copy of the delegate’s decision. The applicant is a young child and his mother, Ms Jebun Ara Geeti (Ms Geeti), who is an Australian citizen, made representations on behalf of her son at the hearing at the scheduled Tribunal hearing on 23 February 2021.

4. The applicant was not represented in these proceedings.  Ms Geeti confirmed at the start of the hearing that she did not require the assistance of an interpreter.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue on review is the same determinative issue on which the visa was refused; that is, whether the visa applicant meets (PIC) 4007 as required by the criteria for the grant of the visa; cl.802.223(1). PIC 4007, as it applies to this case, is extracted in the attachment to this decision. Relevantly in this case, it requires the applicant to undergo medical assessment by a Medical Officer of the Commonwealth (MOC), to determine whether he is free from certain diseases or conditions that may impact on the community; PIC 4007(2). This last requirement may be waived in certain circumstances.

7. The most recent MOC opinion, dated 31 January 2020, specifies that the applicant has a moderate cognitive impairment associated with Autism Spectrum Disorder.  The MOC goes on to say, in summary, that the applicant attends a special school and requires some supervision and is independent in most of his activities of daily living.

8. In the present case, the delegate found that the applicant did not meet cl.802.223(1) because the delegate found that the applicant did not satisfy the health requirement under PIC 4007(1)(c)(ii)(A) and considered that the potential healthcare costs did not justify a waiver on compelling or compassionate circumstances for the grant of the visa.

   Has the applicant undertaken a medical assessment (PIC 4007(1)(aa))?

9. Clause 4007(1)(aa) requires that if the applicant is in a specified class of persons, he or she must undertake the specified medical assessment and be assessed by a specified person unless a Medical Officer of the Commonwealth (MOC) decides otherwise. The relevant class of persons and assessments are specified in Legislative Instrument IMMI 15/144. 

10. The Tribunal has reviewed the evidence and is satisfied that the applicant is a class of persons specified in the instrument and that he has undertaken a medical assessment as specified in the relevant legislative instrument.

11. For these reasons the requirements in PIC 4007(1)(aa) are met.

    Has the applicant complied with a request to undertake a medical assessment (PIC 4007(1)(ab)?

12. Clause 4007(1)(ab) requires that the applicant comply with any request by an MOC to undertake a medical assessment.

13. On the evidence, the Tribunal is satisfied that the specified medical assessment was undertaken by a MOC and that the applicant complied.

14. Therefore the applicant satisfies PIC 4007(1)(ab).

    Is the applicant free from the relevant diseases or conditions (PIC 4007(1)(a), (b), (c))?

15. Clauses 4007(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.

16. Clause 4007(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.

17. For some temporary visas, certain specified health care and community services are excluded from this consideration: PIC 4007(1B). The visa application that is the subject of this review is a permanent visa and this is therefore not applicable.

18. In determining whether the applicant meets PIC 4007(1)(a), (b) or (c), reg 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.

19. Where an opinion of a MOC is required, the Tribunal must take it be correct: reg 2.25A(3).

    Is a MOC opinion required?

20. The visa application is for a permanent visa.  Relevantly, Legislative Instrument IMMI 13/161 specifies Bangladesh, in Schedule A, for the purposes of r.2.25A(1)(b).

21. Information, with supporting medical evidence, was provided with the visa application indicating that the applicant had a certain medical condition that may not meet PIC 4007(1)(c).  Essentially, the applicant must be free from a disease or condition that would be likely to incur significant cost relating to Australian health care or community services.

22. 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.

23. Accordingly, based on the most recent opinion of the MOC, dated 30 January 2020, that the applicant ‘…does not satisfy subparagraph PIC 4007(1)(c)(ii)(A) in Schedule 4 to the Migration Regulations’, the applicant does not meet PIC 4007(1)(c).

    Should the requirements of PIC4007(1)(c) be waived?

24. The requirement in PIC 4007(1)(c) to be free of a disease or condition that would impact on health or community services, may be waived if among other things, the decision maker is satisfied that the granting of the visa would be unlikely to result in either ‘undue cost’ to the Australian community or ‘undue prejudice’ to the access to health care or community services of an Australian citizen or permanent resident: 4007(2).

25. The evaluative judgment of whether the cost to the Australian community or prejudice to others is ‘undue’ may import considerations of compassionate or other circumstances: Bui v MIMA (1999) 85 FCR 134 (‘Bui’) at 47. Over and above the consideration of the likelihood that cost or prejudice will be ‘undue’ there is also the discretionary element of the ministerial waiver. Within the ministerial discretion, compassionate or compelling circumstances may be relevant: Bui at 47. Department policy provides guidance on factors that may be relevant to this.

    BACKGROUND

26. The applicant is a child born in 2010, who has a birthday coming up at the end of March.  He is 11 years of age, and a citizen of Bangladesh.  He has resided in Australia since 2015, travelling with mother, Ms Geeti, holding a Subclass 489 Skilled Regional (Provisional) Visa, as the dependant of his mother.  Ms Geeti’s application for Australian citizenship was approved on 14 December 2020 by the relevant Minister.

27. The parents of the applicant are a married couple, Ms Geeti and Md Anwarul Azim.  Mr Azim resided in Australia with his wife and son for about six months in 2015, holding a Subclass 489 visa as a dependant which gave him work rights.  He is a qualified mechanical engineer and pharmacist, and, during this period, he tried to find suitable employment in regional Australia.  However, Mr Azim was unable to find anything and returned to Bangladesh so he could assist his wife and son financially working in the family’s pharmacy business.

28. Upon his return to his home country, Bangladesh, in 2018 the applicant’s father applied for a partner visa (BCC2018/5780881), but because of COVID-19, the New Delhi post, where the visa application is being assessed, has had staffing shortages that have resulted in delays.  In November 2020, Ms Geeti, who is the sponsor, inquired about progress of the Subclass 309 partner visa application and was advised by the Department that the application ‘is under active consideration’.

    Compelling or compassionate circumstances

29. On 15 May 2020, the Tribunal wrote to the applicant providing him and his mother with an opportunity to address relevant matters in respect of compelling or compassionate circumstances that would justify granting of the visa.  These matters included, whether:

    ·Relocation of the applicant would impact negatively on an Australian citizen sponsor, namely his mother, who is the primary caregiver;

    ·Location of immediate family members that may result in separation and hardship, including financial, emotional, physical and psychological;

    ·The applicant has significant family links to Australia, or significant support from family or community groups;

    ·Occupational and in demand skills of working family members that are on the Medium and Long-term Strategic Skills List (MLTSSL) of the Skilled Occupation List;

    ·English language ability of the applicant and his family members;

    ·The immigration history of the applicant (and sponsor/ proposer if applicable), including, for example, compliance to date with immigration requirements and any undertakings; and

    ·Any other relevant factors that would add weight to a waiver being exercised.

30. The Tribunal has considered the personal situation of the visa applicant, most importantly that his mother and primary caregiver is now an Australian citizen.  They have lived together in Australia, as their place of residence, for about six years, since the applicant was about five years of age.  The applicant’s father lived with them in Australia for the first six months but needed to return to his home country to work and help support wife and son financially.  He has remained offshore for some time now awaiting the finalisation of his Subclass 309 offshore partner visa application that was made in 2018. 

31. Ms Geeti had her application for Australian citizenship approved by the Minister on 14 December 2020.  On this basis, it is reasonable to conclude that she passed the character requirements under s.501 of the Act.  There is no information before the Tribunal that the applicant, his mother, or his father, have in any way breached any visa conditions or requirements, including attending medical examinations.  Nor is there information before the Tribunal indicating that they have not remained fully engaged with the Department and the Tribunal relating to their visa applications.

32. The applicant’s father has remained offshore for some time now awaiting the finalisation of the offshore partner visa application, which has resulted in separation of the applicant from his father.

33. If the PIC 4007 health criteria requirement is not waived, this will put the applicant’s Australian mother in a difficult position of;

    a.departing Australia with her child, even though she is entitled to live here and benefit from all the same privileges and advantages other Australian citizens;

    b.having her child depart Australia without her to live with his father in Bangladesh; or

    c.continuing to reside in Australia, with her son if seeks to appeal the adverse decision, again without the benefit of having her husband with her until his partner visa is granted.

34. It is the Tribunal’s view that expecting the applicant’s mother to have to choose between any one of these options is not reasonable, in the circumstances of this case.

35. The applicant, who is now a child of an Australian citizen, has been living in Australia since he was about five years of age.  His mother has sent him to an Australia school, he has Australian friends and is supported by community groups and maternal relatives who live here.  Both the applicant and his mother speak fluent English.

36. On the evidence before the Tribunal, Ms Geeti is a qualified senior university lecturer, who has been offered employment as a senior lecturer at Sydney University and is currently undertaking orientation in the Teaching Development Program. Her husband, Mr Azim, is qualified as both a pharmacist and mechanical engineer.  The Tribunal has confirmed that all three occupations, for which the applicant’s parents are qualified, are currently included in the MLTSSL as specified in Legislative Instrument IMMI 19/051.  That is, they are occupations that are currently in demand.

37. It is acknowledged that the likely estimated cost to the Australian community was, in the opinion of a MOC that was given to the Department relating to the visa application, dated 4 September 2018, includes that the estimated costs were as follows:

    ·Commonwealth disability services                $2,597,000

    ·State disability services  $1,140,000

    ·Special education services  $   450,000

    TOTAL  $4,187,000

38. On any reckoning, these costs are significant.  However, in the most recent MOC’s opinion, dated 31 January 2020, the estimated costs to the Australian community no longer included any cost relating to special education services and the other estimated service costs were very substantially reduced to:

    ·Commonwealth disability services                $   194,000

    ·State disability services  $   648,000

    TOTAL  $   842,000

39. Overall, from the time of application to the time of this decision, the estimated costs to the Australian community, in the opinion of a MOC, has produced a number that is about 20 percent of what was estimated less than two years ago.

40. The Tribunal has considered all facts and matters it considered material to the question on the review and the matter of compassionate or compelling circumstances.  It is acknowledged, and the Tribunal accepts, that the costs, as expressed in the most recent MOC, are still high.  However, on balance, for the reasons given the Tribunal is satisfied that the PIC 4007 health requirement should be waived for the grant of the visa, within.

41. For these reasons, the Tribunal is satisfied that in the circumstances of this case the granting of the visa would be unlikely to result in undue cost or undue prejudice within the terms of PIC4007(2)(b).

42. Therefore PIC 4007(1)(c) may be waived subject to the applicant satisfying all other requirements for the visa.

43. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for the visa.

    DECISION

44. The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 (Child) visa:

    ·PIC 4007(1)(c) for the purposes of cl 802.223 of Schedule 2 to the Regulations; and

    ·PIC 4007(2)(b) for the purposes of cl 802.223 of Schedule 2 to the Regulations

    Peter Smith

    
    

    Member

    ATTACHMENT

    Migration Regulations 1994

    Schedule 4

    4007(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)      subject to subclause (2) — 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 (1A); 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.

    (1A)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.

    (1B)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 (1A)(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.

    (2)The Minister may waive the requirements of paragraph (1)(c) if.

    (a)     the applicant satisfies all other criteria for the grant of the visa applied for; and

    (b)     the Minister is satisfied that the granting of the visa would be unlikely to result in:

    (i)undue cost to the Australian community; or

    (ii)undue prejudice to the access to health care or community services of an Australian citizen or permanent resident.