Badoola (Migration)

[2018] AATA 1167

Badoola (Migration) [2018] AATA 1167 (4 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Zubaida Badoola

VISA APPLICANT:  Miss Fozia Badoola

CASE NUMBER:  1702011

DIBP REFERENCE(S):  OSF2016/040772

MEMBER:Nicholas McGowan

DATE:4 April 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration with the direction that the visa applicant meets PIC 4007(2)(b) for the purposes of cl.101.223.



Statement made on 04 April 2018 at 2:19pm

CATCHWORDS
Migration – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – MOC assessment  – Visa applicant has a moderate functional impairment – Condition is stable – New MOC is unnecessary – Granting of the visa would be unlikely to result in undue cost to the Australia community

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cl 101.223 Schedule 4 Criteria 4007

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

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 18 January 2017 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied to the Department of Immigration for the visa on 31 August 2016. At the time of application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have only been made in respect of Subclass 101 (Child). The review applicant appeared before the Tribunal in a public hearing conducted (via video-link) on Wednesday April 4, 2018 to give evidence and present arguments.

   ISSUE

3. Relevantly, the issue in this case is whether the visa applicant satisfies the public interest criteria (PIC) 4007(1)(c)(ii)(A) for the purposes of cl.101.223, and if not, whether the waiver under PIC 4007(2)(b) is applicable.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The opinion of the Medical Officer of the Commonwealth obtained on 21 September 2016 states an opinion that the visa applicant does not meet the health criteria in PIC 4007(1)(c)(ii)(A) in Schedule 4 to the Regulations. The MOC considered that the visa applicant was a person to whom 4007(1)(c) applied on the basis that she has a moderate functional impairment. The MOC stated that this condition is stable and would require community disability services and state disability services during the period of a permanent stay in Australia. The MOC stated that provision of these services would be likely to result in a significant cost to the Australian community. The MOC opinion also stated that it would not be likely to prejudice access of an Australian citizen or permanent resident to health care or community services.

5. The Tribunal has had regard to the decisions in Robinson v MIMIA (2005) 148 FCR 182 and Ramlu v MIMIA [2005] FMCA 1735 and is satisfied that the MOC did not apply the wrong test in this matter.

6. Further, as the opinion of the MOC was that the applicant’s condition was ‘stable’, and there is no evidence or claim that the applicant’s condition has changed, the Tribunal is satisfied that seeking a new MOC opinion is unnecessary (albeit the option of electing to have a new MOC opinion was offered to the applicant prior to the public hearing).

7. The Tribunal is satisfied that the MOC opinion identifies the visa applicant’s condition to which the public interest criteria have been applied, and has ascertained the form or level of the condition suffered by the visa applicant and has applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition.

8. The Tribunal is therefore bound to accept the MOC to be correct for the purposes of deciding whether the visa applicant satisfies the relevant health criterion, unless the requirements of PIC 4007(1)(c) are waived under PIC 4007(2).

9. Based on the MOC opinion (D1, folios 55-57), the Tribunal is satisfied that the issuance of a visa to the visa applicant would not result in undue prejudice to the access to health care or community services of an Australian citizen or permanent resident. Accordingly, the Tribunal is satisfied that PIC 4007 (2)(b)(ii) is met.

10. The MOC states that the provision of health and community services including (state disability services and Commonwealth disability services) would be likely to result in a significant cost to the Australian community. Whether or not the Tribunal considers the cost of health and community services identified in the MOC to be an ‘undue’ cost to the Australian community is a vexing question because undue is not defined in legislation. The Macquarie Dictionary defines undue as: ‘(1) unwarranted; excessive’, and ‘(2) not proper, fitting, or right; unjustified’.

11. In making its assessment of whether the cost to the Australian community is ‘undue’, the Tribunal has taken into consideration all the circumstances of this case. For an Australian citizen to be required to be separated from living with her child in her ancestral homeland indefinitely, even adult children, obviously adversely affects that citizen’s interests. Further, the Tribunal believes that it is in that Australian citizen’s interests, and the broader Australian communities interest that visas be granted to allow for family reunion and only be withheld where there are clear countervailing reasons. It can see no reason why this family should be forced to have their interests so significantly affected when it has long been recognised that uniting families is in the best interests of all Australians.

12. The Tribunal has placed significant weight on unique circumstances of this case, including consideration of the interests of the Australian citizen parent, and the inherent humanity in reunifying this family in their homeland while ever mindful of the salient points in the letter dated 8 December 2015 from the Aboriginal and Torres Strait Islander and Social Justice Commissioner Mick Gooda (folio 8 of the department’s file) in support of the applicant’s application. Accordingly, and after taking all the facts of this case into account, the Tribunal finds that the granting of the visa would be unlikely to result in undue cost to the Australia community. Therefore, PIC 4007(2)(b)(i) is met.

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

    DECISION

14. The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration with the direction that the visa applicant meets PIC 4007(2)(b) for the purposes of cl.101.223.