Cecil (Migration)

[2021] AATA 944

Cecil (Migration) [2021] AATA 944 (31 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Svetlana Cecil

VISA APPLICANTS:  Mrs Antonida Nikolevna Loginova
Mr Vladimir Pavlovich Loginov

CASE NUMBER:  1914166

HOME AFFAIRS REFERENCE(S):          OSF2015/038628

MEMBER:Nicholas McGowan

DATE:31 March 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

Statement made 31 March 2021 at 12:26pm

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – health requirements – relevant diseases or conditions – assessment by medical officer of commonwealth taken to be correct – decision under review affirmed

LEGISLATION

Migration Act 1965 (Cth), s 65

Migration Regulations 1994 (Cth), r 2.25A(3), Schedule 2, cl 116.223, Schedule 4, criterion 4005(1)(c)(ii)(A)

CASES

Ramlu v MIMIA [2005] FMCA 1735

Robinson v MIMIA (2005) 148 FCR 182

WRITTEN STATEMENT OF DECISION AND REASONS

1. This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 17 May 2019 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 23 March 2015.

3. On 17 May 2019 the delegate refused to grant the visa on the basis that the first named visa applicant (now referred to as the visa applicant) did not satisfy cl.116.223 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.

4. As the Tribunal was unable to make a favourable decision on the information before it alone, the Tribunal invited the applicant to a hearing conducted 31 March 2021. The Tribunal hearing was conducted with the assistance of an interpreter in the Russian and English languages.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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 was determined to not meet the relevant health criteria on 6 March 2018 and was advised by the Department by means of a letter on 15 December 2018 providing the applicant to opportunity to respond to the finding.

6. On 07 January 2019, the applicant provided a statement to declare that she wished to travel to Australia to assist her daughter Svetlana to care for her two granddaughters, Milana and Karina who have cystic fibrosis. The applicant declared that she would not request any disability support and community aged care services if granted the visa. In response, the applicant provided additional medical information for the Medical Officer of the Commonwealth to consider on 15 January 2019.

7. On 14 May 2019, the Medical Officer of the Commonwealth determined (for the second time) that the applicant did not meet the health requirements for the grant of A Carer (subclass 116) visa. The Medical Officer determined (again) that the applicant does not satisfy PIC 4005(1)(c)(ii)(A) in schedule 4 to the Migration Regulations (and therefore could not satisfy the requirement under clause 116.223 of Schedule 2 to the Migrations Regulations.

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

8. Relevantly, 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).

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

10. In determining whether a person meets PIC 4005(1)(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).

11. During the hearing the applicant’s agent sought additional time to access assessment information conducted by the Department in the making of the MOC. The Tribunal refused to grant additional time, and the applicant has had ample time since the opinion was first made, then again confirmed some (almost) two years ago. Further, and critically, there is nothing within this Tribunal’s discretion that causes it to find the opinion has not been correctly arrived at, and therefore any further delays would have no bearing on the outcome of the review.

12. 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.

13. Accordingly, based on the opinion of the MOC, the applicant does not satisfy public interest criterion 4005(1)(c).

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

    DECISION

15. The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

    Nicholas McGowan
    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.