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

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.
The applicant applied for a further Visitor (Class FA) visa on 3 December 2020.
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.
This is an application for review of that decision.
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.
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.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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…

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.

Continue reading Bhuchar (Migration)

Details

AGLC: Bhuchar (Migration) [2024] AATA 1448
Case: [2024] AATA 1448
Decision Date: 18 April 2024

CaseChat Overview and Summary

This matter concerned an appeal by a visa applicant against a decision to affirm the refusal of her Visitor (Class FA) visa. The applicant, who suffers from chronic renal failure and requires dialysis, had remained in Australia beyond the validity of her initial visitor visa and was currently on a bridging visa. The core of the dispute revolved around whether the applicant met Public Interest Criterion (PIC) 4005, which governs health requirements for visa applicants.

The legal issues before the Tribunal were whether the applicant was free from a disease or condition that would likely require significant healthcare or community services, and whether the provision of such services would likely result in a significant cost to the Australian community or prejudice the access of Australian citizens or permanent residents to healthcare. Specifically, the Tribunal had to consider PIC 4005(1)(c) and its sub-clauses concerning the likely cost and prejudice to existing service access.

The Tribunal's reasoning focused on the application of PIC 4005(1)(c) to the applicant's circumstances. It was established that the applicant's chronic renal failure and need for dialysis fell within the scope of conditions requiring healthcare and community services. Crucially, the Tribunal found that the provision of these services to the applicant would likely result in a significant cost to the Australian community and would likely prejudice the access of Australian citizens or permanent residents to such services. As the applicant's visa subclass was specified in Legislative Instrument IMMI 15/144, the exclusions under PIC 4005(3) did not apply.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Visitor (Class FA) visa, as she had failed to satisfy the requirements of PIC 4005.

Orders

Orders of the court

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Background

Background to the litigation

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 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. 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. 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))? 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. 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). 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. 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?

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE 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. 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 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. 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. 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))? 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. 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). 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.

Decision

Reasons for decision

As the applicant has not satisfied the requirements of PIC 4005, the Tribunal must affirm the decision under review.DECISION The Tribunal affirms the decision not to grant the applicant a Visitor (Class FA) visa.Louise NichollsSenior MemberATTACHMENTMigration Regulations 1994Schedule 44005(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.

Ratio Decidendi

Legal Principle Established

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