Bhuchar (Migration)

[2024] AATA 1448

Bhuchar (Migration) [2024] AATA 1448 (18 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Meena Bhuchar

REPRESENTATIVE:  Mr Dildeep Singh (MARN: 1281067)

CASE NUMBER:  2218123

HOME AFFAIRS REFERENCE(S):          BCC2020/2751277

MEMBER:Louise Nicholls

DATE:18 April 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Visitor (Class FA) visa.

Statement made on 18 April 2024 at 1:29pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – health criteria – chronic renal failure – dialysis – require long-term specialist healthcare services – service in short supply – prejudice access of an Australian citizen or permanent resident to healthcare services – significant cost to the Australian community – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.25A; Schedule 2, cl 600.213; 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. The applicant is 53 years old and is a citizen of India. The applicant last arrived in Australia on 15 March 2020 as the holder of a Visitor (Class FA) visa.

2. The applicant applied for a further Visitor (Class FA) visa on 3 December 2020.

3. On 23 November 2022 the delegate of the Minister for Home Affairs refused to grant the applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act) on the basis that the applicant did not satisfy cl 600.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The delegate was not satisfied the applicant met the health criteria in Public Interest Criterion (‘PIC’) 4005 of Schedule 4 to the Regulations.

4. This is an application for review of that decision.

5. The applicant appeared before the Tribunal on 4 March 2024 and 8 April 2024 to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of an interpreter in the Punjabi and English languages and using MS Teams video.

6. The applicant was initially represented in relation to the review but following the second hearing the representative advised that he was no longer acting, and this was confirmed by the applicant.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this review is whether the visa applicant meets Public Interest Criterion (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.

9. The applicant in this case has chronic renal failure. She is in a class of persons required to complete a health assessment and having completed the health assessment it was found that the provision of health care and community services to the applicant would be likely to result in a significant cost to the Australian community and likely to prejudice the access of an Australian citizen or permanent resident to health care or community services.

   Background

10. The applicant lives in Jalandar, Punjab State, India. She is a widow and has two adult sons who are living in Australia. One son is an Australian citizen, and her other son is currently applying for permanent residence. She has one grandchild in Australia.

11. The applicant first arrived in Australia on 19 December 2019 travelling on a visitor visa. She departed on 14 March 2020 and returned to Australia the next day. Since that time she has remained in Australia. She obtained a second visitor visa on 8 September 2020 and that visa ceased on 8 December 2020 and she now holds a bridging visa.

12. The applicant is currently undergoing dialysis in Australia. She advised she became unwell during her visit.

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

13. 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.

14. 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 service are excluded from this consideration: PIC 4005(3).

15. In the present case, the temporary visa the applicant is seeking is specified in Legislative Instrument IMMI 15/144. As such the health care and community services listed in instrument are not excluded from consideration.

16. In determining whether a person meets PIC 4005(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.  Where an opinion of a MOC is required, the Tribunal must take it be correct: reg 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 evidence before the Tribunal indicates the applicant was asked by the delegate to attend a medical appointment with a MOC for the purpose of obtaining an assessment of whether the applicant met the health requirement.

19. On 25 June 2021 the MOC completed a Form 884 “Opinion of a Medical Officer of the Commonwealth”. The MOC found that the applicant had been assessed against Public Interest Criterion 4005 for the period of 3 months and found:

    ·She has severe chronic renal disease of a severity which requires renal dialysis immediately and renal replacement therapy during the period of proposed stay.

    ·A hypothetical person in Australia with the same condition as the applicant, at the same severity, would be likely to require long-term specialist healthcare services including but not limited to renal replacement services.

    ·The MOC considered that the provision of health care services to the hypothetical person in the circumstances set out above would also be likely to result in a significant prejudice to access to the Australian community in the area of healthcare. This is because dialysis, based on advice from the Department of Health, is currently a service in short supply and there are already insufficient resources available to meet current national demand. Access to this service would be likely to seriously disadvantage current Australian citizens and permanent residents.

    ·This condition is likely to be progressive.

    ·The MOC considered that a hypothetical person with this disease or condition, at the same severity as the applicant, would be likely to require healthcare or community services during the proposed stay period.

    ·The services would be likely to include dialysis and the provision of these healthcare or community services would be likely to prejudice the access of an Australian citizen or permanent resident to healthcare or community services.

20. As a result of the health assessment the delegate refused the applicant’s application for a visitor visa and the applicant sought review of that decision.

21. After the applicant sought review the Tribunal wrote to the applicant and asked her if she wished to arrange a further opinion to be obtained from a MOC. The applicant asked the Tribunal to arrange further opinion and she attended a medical examination for that purpose on 19 June 2023.

22. At the time of the Tribunal hearing held on 4 March 2024 the applicant gave evidence that she had attended a medical appointment in June 2023 but had not received any correspondence or reports relating to the outcome of that medical appointment. As a result, the Tribunal adjourned the hearing and made enquiries regarding the completion of the requested MOC assessment.

23. On 14 March 2024 the MOC provided a further opinion.

24. That opinion stated:

    ·The applicant has been assessed against PIC 4005 for a period of one year.

    ·During the health assessment the applicant was assessed to suffer from severe chronic renal disease.

    ·The MOC stated that a person with this condition would be likely to require ongoing renal replacement therapy during the proposed period of stay.

    ·A hypothetical person in Australia with the same condition as the applicant, at the same severity, would be likely to require long-term specialist healthcare services, including but not limited to renal replacement services.

    ·The MOC considered that the provision of health care services to the hypothetical person in the circumstances set out in the opinion and found it would be likely to result in a significant prejudice to access to the Australian community in the area of healthcare. This is because dialysis, based on advice from the Department of Health, is currently a service in short supply and there are insufficient resources available to meet current national demand. The failure to obtain required access to the service would be likely to seriously disadvantage current Australian citizens and permanent residents.

    ·The condition is likely to be progressive.

    ·The MOC stated that he hypothetical person with this disease or condition, at the same severity as the applicant, would be likely to require healthcare or community services during the proposed period of stay. The services would be likely to include medical services and dialysis.

    ·Provision of these healthcare and community services would be likely to result in a significant cost to the Australian community in the areas of health care and community services and prejudice the access of an Australian citizen or permanent resident to healthcare or community services. The estimated total cost was stated to be $94,220 for one year. The costing is calculated on the basis of the applicant’s specific condition and guided by the information contained within the Department of Home Affairs notes for guidance.

25. At the second hearing conducted by the Tribunal on 8 April 2024 the applicant stated that her migration representative was no longer acting for her, and she was happy to proceed with the hearing on that date in his absence. The Tribunal advised her it had received an updated medical assessment. She advised she had not received a copy of that assessment and the Tribunal outlined the contents of the assessment but indicated it would send her a copy of the document and give her some time to respond if she should wish.

26. She stated that she was dependent on her children to help her with her visa matters and she was in some financial difficulty and was not able to engage another migration representative. The Tribunal advised her that there were some agencies she might go to for further advice if she wanted to consider representation or to seek ministerial intervention.

27. Following the hearing the Tribunal sent the applicant a copy of the updated 2024 MOC assessment and a copy of a page from the Tribunal’s website which set out the contact details of agencies in Queensland who might be able to provide her with further advice. It also advised that it would not make a decision before the 17 April 2024 if she wished to make any comments or provide further information on her application.

28. The Tribunal considers the March 2024 MOC assessment is a valid opinion. The Tribunal finds that the opinion identified the medical condition to which the public interest criterion has been applied, that is, severe chronic renal disease. It identified the level of the condition and applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition. It identifies the temporary period for the proposed stay.

29. The Tribunal finds that, based on the medical opinion of the MOC, the applicant does not meet PIC 4005(1)(c) as she has a condition which would be likely to require health care or community services during the specified period; and the provision of the health care or community services would be likely to result in a significant cost to the Australian community in the areas of health care and community services and to prejudice access of an Australian citizen or permanent resident to health care or community services.

30. Accordingly, based on the opinion of the MOC, the Tribunal finds the applicant does not meet PIC 4005(1)(c).

31. As the applicant has not satisfied the requirements of PIC 4005, the Tribunal must affirm the decision under review.

    DECISION

32. The Tribunal affirms the decision not to grant the applicant a Visitor (Class FA) visa.

    Louise Nicholls
    Senior 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.