Brown (Migration)

[2020] AATA 4824

Brown (Migration) [2020] AATA 4824 (31 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Joan Brown

CASE NUMBER:  1928234

DIBP REFERENCE(S):  CLF2016/37527

MEMBER:Mary Urquhart

DATE:31 August 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant an Aged Parent (Residence) (Class BP) visa.

Statement made on 31 August 2020 at 1:11pm

CATCHWORDS

MIGRATION – Aged Parent (Residence) (Class BP) visa – Subclass 804 (Aged Parent) – health requirements – Medical Officer of the Commonwealth opinion – mobility issues – strong compassionate circumstances – referral for Ministerial Intervention – decision under review affirmed        

LEGISLATION

Migration Act 1958, ss 65, 351
Migration Regulations 1994, Schedule 2 cl 804.225; Schedule 4; Public Interest Criteria 4005; r 2.25

CASES

Ramlu v MIMIA [2005] FMCA 1735

Robinson v MIMIA (2005) 148 FCR 182       

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 3 October 2019 to refuse to grant the applicant a Aged Parent (Residence) (Class BP) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 17 June 2016. She was required to undertake a health assessment.

3. On 21 March 2019 a Medical Officer of the Commonwealth (the MOC) gave an opinion that the applicant did not meet health requirements.

4. On 4 April 2019 a letter was sent to the applicant inviting them to comment on the MOC opinion and providing an opportunity to obtain a further MOC opinion. The file reveals that no response to the natural justice letter as received.

5. No further opinions by a MOC have been sought or received.

6. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.804.225 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.

7. The applicant sought a review.

8. The applicant was invited to a hearing on 31 August 2020. On 31 August 2020 the applicant was unwell and did not appear before the Tribunal. A letter regarding the applicant’s current health including reference to her dementia was provided by her treating doctor, Dr A Miceli, Flinders General Practice. However the applicant was represented by her son, the sponsor, Mr Robert Traynor Brown. Mr Brown gave evidence and presented arguments to the Tribunal on behalf of the applicant. The hearing was a telephone hearing in accordance with current Tribunal Covid 19 practices.

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

10. A recommendation in relation to Ministerial Intervention under S.351 of the Act is made.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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, aged 87, suffers from severe functional impairment and the delegate found she did not satisfy the health criteria for the visa.

12. The applicant’s son, Mr Brown outlined the history of his mother life and circumstances and of her first coming to Australia in October 2015. He is her only child. She and his father were married for some 60 years and lived together in Edinburgh Scotland. They lived on the second floor of a tenement building he said. The applicant’s son returned to Scotland to visit his parents and assist in their care. His father passed away on 26 June 2015. The sponsor then invited the applicant to visit Australia to see her grandchildren and great grandchildren

13. Mr brown described the better circumstances his mother enjoyed in Australia surrounded by her family. He indicated that when her visit was almost over they decided to apply for the aged parent visa. The process is slow.

14. Some months after the application was made the applicant had some health issues including problems with walking and mobility. She experienced a number of falls. In April 2017 the sponsor was advised to seek care assistance for the applicant. He sought advice including visa advise. He was concerned that should she return home it would of necessity be to assisted care as living on the second floor of a building she would be become house bound due to mobility issues. He also had concerns about the actual trip home for her. Mr Brown explained to the Tribunal that his mother’s circumstances today would make a flight home an impossibility due to her age (87), frailty and medical conditions. She would be returning home with no family to assist her there.

15. The applicant currently lives in residential care at St Anne’s Court, Shoreham which is about 8 kilometres from her son.

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

16. 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.

17. 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).

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

19. 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 a MOC opinion required?

20. On the evidence before the Tribunal, a MOC opinion is required.

21. The Tribunal explained that it must take the MOC opinion as correct, but that it must first be satisfied the MOC has applied the correct test in forming the opinion: Robinson v MIMIA (2005) 148 FCR 182 and Ramble v MIMIA [2005] FMCA 1735.

22. That is the Tribunal must be satisfied the opinion identifies the medical condition to which the public interest criterion has been applied, and the form or level of the condition suffered by the applicant. The MOC must have applied the statutory criteria by reference to a hypothetical person who suffers from the same form or severity of the condition.

23. In this application the MOC noted the form and severity of the applicant's condition stating the applicant is an 86 year old person with “severe functional impairment”.

24. The MOC records the form and severity of the applicant’s condition “the applicant has severe functional impairment in the context of peripheral neuropathy, visual impairment and previous stroke and currently resides in a residential care facility. The applicant requires significant assistance with mobility transfers and most activities of daily living”.

25. The MOC states “provision of services to a hypothetical person in Australia with the same condition as the applicant and at the same severity, would be likely to require community services including but not limited to residential aged care services. The Condition is likely to be permanent”.

26. The MOC applied the hypothetical person test and referred to likely services which the applicant would require.

27. The Tribunal is satisfied that the MOC opinion dated 21 March 2019 applied the correct test and therefore must be taken to be correct. Based on the opinion of the MOC, the applicant does not satisfy PIC 4005 (1) (c). As the applicant does not satisfy the health requirements the applicant has not satisfied the requirements for the visa. Accordingly as the applicant has not satisfied the requirements of PIC 4005 the Tribunal must affirm the decision under review.

    Referral of cases to the Minister under s.351

28. Under s.351 of the Act, the Minister may substitute for a decision of the Tribunal, a decision that is more favourable to an applicant, if the Minister thinks that it is in the public interest to do so.

29. As discussed with the applicant at the hearing, the Tribunal does not have the legal power to waive mandatory criteria prescribed for this class of visa. The only person who is able to waive the criteria is the Minister, where he believes it is in the public interest to do so. Section 351 of the Act states that the Minister can only intervene and substitute a decision that is more favourable to the applicant once the Tribunal has made an unfavourable decision. The powers are non-compellable, in the sense that the Minister has no duty to consider whether to exercise the relevant power, whether he is requested to do so by the applicant, or any other person, or in any other circumstances.

30. In deciding whether to refer the matter to the Minister for consideration under s.351, the Tribunal has had regard Minister's Guidelines on Ministerial powers (s351, s417, and s501J) available in the Procedures Advice Manual (PAM3) (the Guidelines).

31. Among other things, the Guidelines state that the Minister may consider exercising his discretion in cases that exhibit one or more “unique or exceptional circumstances”. The Guidelines then identify unique or exceptional circumstances, and other relevant information, that may be relevant, individually or cumulatively, in assessing whether a case involves unique or exceptional circumstances. They include strong compassionate circumstances that if not recognized would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident. And compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognized would result in serious, ongoing and irreversible harm and continuing hardship to the person.

32. At the hearing the applicant’s sponsor indicated that he will ask, on the applicant’s behalf that the Minister  consider exercising his discretionary powers as set out in section 351 of the Act.

33. Mr Robert Brown gave evidence regarding the applicant’s unique and exceptional circumstances. These included her age, frailty, life expectancy, the difficulties she would face travelling home, that she would merely be transferring from one residential care facility to another  and the fact that he is her only child and that she has no other close family in Scotland.

34. In this regard it is significant that the applicant is aged 87 and suffering from a number of serious medical conditions.

35. The Tribunal has considered in particular the correspondence provided to the Tribunal by Dr A Miceli the applicant’s treating doctor at St Anne’s residential care facility where she resides. Dr A Miceli states:

    “Mrs Brown is under my care at Annie's Court nursing home. She has advanced dementia and a series of disabilities including stroke and arthritis and neuropathy and confined to a wheelchair. I consider in general unfit to travel, especially overseas.

    I also believe her health and care would suffer greatly if she had to move from her familiar and supportive environment where she has been for about 2 years.

    I predict her life expectancy is not long and clearly she is in the highest risk group for dying from COVID if exposed to infection while travelling”.

36. The Tribunal notes the applicant is in an aged care facility and due to her age, vulnerable to contacting COVID 19.

37. The Tribunal is of the view the matter may be considered within the Ministerial guidelines and should be referred to the Minister.

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

    DECISION

39. The Tribunal affirms the decision not to grant the applicant an Aged Parent (Residence) (Class BP) visa.

    Mary Urquhart
    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.