BADAWI (Migration)

[2019] AATA 3510

BADAWI (Migration) [2019] AATA 3510 (5 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Alice Sobhy Nicola BADAWI

CASE NUMBER:  1818155

DIBP REFERENCE(S):  CLF2016/46003

MEMBER:Russell Matheson

DATE:5 March 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 05 March 2019 at 8:18am

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependent Relative) – heath criteria – medical assessment by the Medical Officer of the Commonwealth – family intention to cover medical costs – decision under review affirmed         

LEGISLATION

Migration Act 1958, ss 65
Migration Regulations 1994, Schedule 2 cls 838.223; Schedule 4; Public Interest Criteria 4005; r 2.25

CASES

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

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 15 June 2018 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 1 August 2016. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.838.223 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 Migration Regulations 1994 (the Regulations) were not met.

3. The applicant authorised her son to appear at the Tribunal hearing on her behalf. The applicant’s son, Mr Maher Farid, appeared before the Tribunal on 1 February 2019 to give evidence and present arguments as the applicant was unable to attend due to health issues.  The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

4. The applicant was not represented in relation to the review by a registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this review is whether the visa applicant meets 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. The applicant in this case was assessed as suffering from moderate functional impairment related to [two specified conditions]. Therefore, the applicant did not meet the health requirements for the grant of the visa.

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

7. 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.

8. 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 services are excluded from this consideration: PIC 4005(3).

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

10. In determining whether a person meets PIC 4005(1)(a), (b) or (c), r.2.25A of the Regulations 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?

11. 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 be 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 PIC 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.

12. On 29 January 2018 the MOC assessed the applicant against PIC 4005 and found that the applicant does not meet the health requirement for the period of a permanent stay in Australia. The applicant therefore does not satisfy PIC 4005(1)(c)(ii)(A) in Schedule 4 to the Regulations.

13. On 7 February 2018, the Department of Immigration requested that the applicant provide information including documentation and health assessments in support of her visa application.  The outcome of the health assessments are as follows;

14. On 21 March 2018 an invitation to comment letter was sent to the applicant advising her that she had been assessed as not meeting the health requirement for the grant of an Other Family (Aged Dependant Relative) (subclass 838) visa. The applicant was invited to provide further evidence for the MOC to consider.

15. In response, the applicant provided various documents including a statement confirming that she is in need of care, but care of her family alone. Her son is a pharmacist, her granddaughter is a Registered Nurse and her daughter in-law is her full-time carer. Additional documents provided included confirmation of the applicant’s Health and Life insurance covers. No new medical information was provided for the MOC to consider.

16. On 29 August 2018 the applicant indicated to the Tribunal that she wished to obtain a further medical opinion from the MOC and paid the fees required.

17. On 3 September 2019, the Tribunal received the second opinion. The MOC assessed the applicant against PIC 4005 and found that the applicant does not meet the health requirement for the period of a permanent stay in Australia. The applicant therefore does not satisfy PIC 4005(1)(c)(ii)(A) in Schedule 4 to the Regulations. The MOC advised that the applicant was assessed as suffering from moderate functional impairment related to [two specified conditions]. The MOC considered 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 during the period specified, the period of a permanent stay in Australia. Further, provision of these health care and/or community services would be likely to result in a significant cost to the Australian community and as a result the applicant did not meet the health requirements for the grant of the visa.

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

    The Tribunal hearing

19. The Tribunal discussed with the applicant’s son the circumstances in this case, in particular that a first and second opinion of a MOC resulted in a finding that the applicant does not meet the requirements of PIC 4005.

20. The applicant’s son gave evidence that he did not dispute the MOC opinion. However, he did not believe the applicant’s condition would result in significant cost to the Australian community because he and his family cover all the living and medical costs for the applicant. The applicant’s son further stated that the applicant lives with his family and that his wife is a full-time carer for the applicant and she would not require home care services and she has private health insurance that would cover most of her medical costs. The applicant’s son also stated that the applicant has limited sight and is currently an in-patient at Liverpool hospital being treated for a [specified] condition. He also added that the applicant is 88 years-old and she has no relatives who can care for her overseas and he does not believe the applicant will live much longer.

21. The Tribunal expressed its sympathy to the applicant’s son and their circumstances however it advised that it is bound to accept the MOC opinion.

22. Regulation 2.25A (3) requires the Tribunal to accept the findings of the MOC as correct for the purposes of assessing whether a person meets the health requirement.

23. As the applicant has been assessed by a MOC as not meeting PIC 4005, and as there is no waiver for PIC 4005, the applicant does not meet cl.838.223 in Schedule 2 of the Regulations on the date the Tribunal made its decision.

24. Accordingly, based on the opinion of the MOC, the applicant does not satisfy PIC 4005(1)(c).

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 an Other Family (Residence) (Class BU) visa.

    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.