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

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).
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.
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.
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.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] AATA 1250
Decision Date: 15 March 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Child (Residence) (Class BT) visa, Subclass 802, made by a child who had resided in Australia since 2015 as a dependant of his mother. The applicant, a citizen of Bangladesh, was born in 2010. His mother, the sponsor, had her Australian citizenship approved in December 2020. The applicant's father, a qualified mechanical engineer and pharmacist, had previously resided in Australia and sought employment in regional areas without success, returning to Bangladesh to support his family. Delays had been experienced in the assessment of the father's partner visa application due to COVID-19 related staffing shortages.

The primary legal issue before the Tribunal was whether the applicant met the health criteria under paragraph 4007(1)(c) of Schedule 4 to the Migration Regulations 1994, specifically concerning the potential cost to the Australian community or prejudice to the access of Australian citizens or permanent residents to health and community services. This criterion requires an applicant to be free from a disease or condition that would likely necessitate health or community services, the provision of which would result in significant cost or prejudice to access. The Tribunal also considered whether the circumstances warranted a waiver of this requirement under subclause 4007(2), which allows for a waiver if the applicant meets all other visa criteria and granting the visa would be unlikely to result in undue cost or prejudice.

The Tribunal found that the applicant had met the requirements of paragraphs 4007(1)(aa) and (ab) concerning undertaking and complying with medical assessments. However, the delegate had refused the visa on the basis that the applicant did not satisfy paragraph 4007(1)(c), finding that the potential healthcare costs did not justify a waiver on compelling or compassionate grounds. The Medical Officer of the Commonwealth's opinion indicated the applicant has moderate cognitive impairment associated with Autism Spectrum Disorder, requiring some supervision but being independent in most daily activities. The Tribunal concluded that the matter should be remitted for reconsideration, directing that the applicant meets the criteria under PIC 4007(1)(c) and 4007(2)(b) for the purposes of the Subclass 802 visa.

Orders

Orders of the court

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Background

Background to the litigation

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 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. 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. 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 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.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE 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. 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. 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))? 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. 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. 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)? Clause 4007(1)(ab) requires that the applicant comply with any request by an MOC to undertake a medical assessment. On the evidence, the Tribunal is satisfied that the specified medical assessment was undertaken by a MOC and that the applicant complied. Therefore the applicant satisfies PIC 4007(1)(ab).Is the applicant free from the relevant diseases or conditions (PIC 4007(1)(a), (b), (c))? 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. 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.

Decision

Reasons for decision

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 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 RegulationsPeter SmithMemberATTACHMENTMigration Regulations 1994Schedule 44007(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.

Ratio Decidendi

Legal Principle Established

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