Bhuiyan (Migration)

[2019] AATA 3375

Bhuiyan (Migration) [2019] AATA 3375 (26 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Dr Md Mahedi Hasan Bhuiyan
Mrs Rebaka Sultana
Mr Adyan Bin Hasan

CASE NUMBER:  1621299

DIBP REFERENCE(S):  BCC2016/1138037 BCC2017/797558

MEMBER:Kira Raif

DATE:26 July 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled Nominated (Permanent) visas.

Statement made on 26 July 2019 at 7:23am

CATCHWORDS
MIGRATION – Skilled Nominated (Permanent) (Class SN) visa – Subclass 190 (Skilled – Nominated) – health criteria – dependent child – disability at birth – progressing normally – attending a mainstream school – MOC opinion – no discretion – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.25A; Schedule 2, cl 190.216; Schedule 4, PIC 4005

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 24 November 2016 to refuse to grant the applicants Skilled Nominated (Permanent) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants are nationals of Bangladesh. They applied for the visas on 26 March 2016. The delegate refused to grant the visas on the basis that the third named applicant did not satisfy cl.190.216 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 Regulations was not met. The applicants seek review of the delegate’s decision.

3. The applicants appeared before the Tribunal on 13 May 2019 to give evidence and present arguments. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. The issue in this review is whether the visa applicants meet 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, requires the applicants, in certain circumstances, to undergo medical assessment, and to be free of certain diseases or conditions that may impact on the community.

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

6. In determining whether a person meets PIC 4005(1)(a), (b) or (c) r.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: r.2.25A(3).

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

7. When the application was made, the application included the primary applicant’s partner and child Adyan as visa applicants. The child was born in December 2013 and is a minor child. The Tribunal finds that the child is a dependent child and a member of the applicant’s family unit. The Tribunal also finds that the child is an applicant for the for the Subclass 190 visa. As such, the child must satisfy PIC 4005 for the purpose of cl. 190.216(3).

8. The primary decision record indicates that Adyan did not pass the medical examinations and in March 2016 the MOC formed the opinion that he did not meet PIC4005. The applicants provided additional evidence for review and a review was undertaken by RMOC. In October 2016 the MOC again formed the opinion that Adyan did not meet PIC 4005.

9. The applicant told the Tribunal that they have been living in Australia for a number of years and both contribute to the community through their qualifications and employment. Their son was born in Australia and his disability is only due to the error during delivery. Otherwise he is healthy and attends normal school. There is no future for him in Bangladesh. The applicant requested the Tribunal to refer the matter to the Minister.

10. At the applicants’ request, the Tribunal arranged another MOC opinion. On 17 May 2019 the Tribunal received advice that the child did not meet the health requirements. The Tribunal provided that information to the applicants pursuant to s. 359A of the Act.

11. In his submission to the Tribunal of 24 July 2019 the applicant outlined the family’s circumstances and the contribution the family has made, and can continue to make, to the Australian community. The Tribunal accepts that evidence. The applicant states that their son has progressed normally, is able to attend a mainstream school and would not require special schooling or assistance, as noted in the RMOC report. The applicant refers to the various medical reports previously submitted. The Tribunal is satisfied that this evidence was taken into consideration when the RMOC had reached the opinion that the child does not pass meet the health requirements. The applicant has not established that the RMOC opinion is invalid and the Tribunal is not able to go behind that opinion. The Tribunal is bound to accept a valid opinion of the RMOC and finds that the child does not meet the health requirements.

12. The applicant states that the child would experience hardship and discrimination if he was required to live in Bangladesh. The Tribunal acknowledges the submissions made by the applicant but has no discretion in relation to these matters. Neither is the Tribunal able to have regard to the family’s circumstances, employment, education and the contribution they have made to Australia. Having found that one of the applicants does not meet the health requirements set out in PIC 4005, the Tribunal finds that the applicant does not meet cl. 190.216 and it must affirm the decision under review. The secondary applicants do not meet cl. 190.311 and there is no evidence that they meet the primary criteria for visa grant.

13. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) but has decided not to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister.

    Conclusion

14. As the applicants do not meet the requirements for the grant of the visa, the Tribunal must affirm the decision under review.

    DECISION

15. The Tribunal affirms the decision not to grant the applicants Skilled Nominated (Permanent) visas.

    Kira Raif
    Senior Member