Chea (Migration)

[2018] AATA 3676

Chea (Migration) [2018] AATA 3676 (30 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Chanmony Chea

VISA APPLICANTS:  Mr Sothy Chea
Mrs Davy Ly
Mr Sokleng Chea
Miss My My Chea

CASE NUMBER:  1727572

DIBP REFERENCE(S):  OSF2014/031769

MEMBER:Mary Urquhart

DATE:30 July 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicants Contributory Parent (Migrant) (Class CA) visas.

Statement made on 30 July 2018 at 3:09pm

CATCHWORDS
MIGRATION – Contributory Parent (Migrant) (Class CA) visa – Subclass 143 (Contributory Parent) – Health criteria – Secondary applicant’s health – Moderate cognitive impairment – Family circumstances – Inability to travel frequently – No independent evidence of hardship– Ministerial Intervention requested

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), Schedule 2 cl 143.229, Schedule 4 PIC4005

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 decisions made by a delegate of the Minister for Immigration on 2 November 2017 to refuse to grant the visa applicants Contributory Parent (Migrant) (Class CA) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 17 November 2014. The delegate refused to grant the visas on the basis that as two of the dependent applicants (now referred to as the visa applicants) did not satisfy the health criteria in Public Interest Criterion ('PIC') 4005 of Schedule 4 to the Regulations the first named applicant did not satisfy cl.143.229 of Schedule 2 to the Migration Regulations.

3. The review applicant Mrs Chanmony Chea appeared before the Tribunal on 13 June 2018 and 30 July 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages.

4. The review applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Cl.143.229 requires that each member of the family unit of the primary applicant who is an applicant for a sub-class 143 visa is a person who satisfies the public interest criteria PIC 4005. This may be referred to as the “one fails all fail” criteria.

7. The issue in this review is whether the visa applicants Mr Sok Leng Chea and Ms My My Chea meet Public Interest Criterion (PIC) 4005 as required by the criteria for the grant of the visa.

8. Public Interest Criterion 4005, as it applies to this case, is extracted in the attachment to this decision. It requires an applicant, in certain circumstances, to undergo medical assessment, and to be free of certain diseases or conditions that may impact on the community.

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

9. Public interest criterion 4005(1)(a) and (b) require the applicants to be free from tuberculosis and free from a disease or condition that is, or may result in the applicants being, a threat to public health in Australia or a danger to the Australian community.

10. Public interest criterion 4005(1)(c) requires the applicants 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).

11. As the applicants in this case have applied for permanent visas, the exclusion provisions in PIC 4005(3) do not apply.

12. 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?

13. 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.

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

    History

14. On 12 May 2017 a Medical Officer of the Commonwealth “MOC” determined that Mr Sok Leng Chea did not satisfy health requirements.

15. On 22 May 2017 a Medical Officer of the Commonwealth “MOC” determined Ms My My Chea did not satisfy health requirements.

16. The applicants were provided with an opportunity to submit additional medical information.

17. On 31 October 2017 the “MOC” after consideration of the further medical information issued new opinions which determined that Mr Sok Leng Chea and Ms My My Chea did not satisfy health requirements.

18. The delegate refused the visas and the review applicant sought a review of the decision.

19. On 16 January 2018 the Tribunal wrote to the review applicant affording an opportunity to the applicants to obtain a further MOC opinion for the applicants Mr Sok Leng Chea and Ms My My Chea on the basis of new medical reports.

20. On 23 March 2018 a request was made for further medical opinions for the applicants Mr Sok Leng Chea and Ms My My Chea.

21. On 26 April 2018 the applicant Mr Sok Leng Chea was assessed as not meeting PIC 4005 (1) (c) (ii) (A). He was described as a 28 year old person with moderate cognitive impairment due to mental retardation from an unknown aetiology. The opinion states he requires significant assistance with his daily activities. 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 disability services including but not limited to income and carer support and state disability services. The opinion states that his condition is likely to be permanent. And likely to result in a significant cost to the Australian community.

22. On 26 April 2018 the applicant Ms My My Chea was assessed as not meeting PIC 4005 (1) (c) (ii) (A). She was described as a 24 year old person with moderate cognitive impairment; it was stated that she has moderately severe cognitive and functional impairment of unknown aetiology and requires supervision and some assistance with activities of daily living. 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 disability services including but not limited to income and carer support and state disability services. The opinion states that her condition is likely to be permanent. And likely to result in a significant cost to the Australian community.

23. On 9 May 2018 the Tribunal wrote to the review applicant inviting her to comment on or respond to the MOC opinions of 26 April 2018 and to do so in writing by 23 May 2018. The letter stated that if any extension of time to respond were to be requested such request must be made before 23 May 2018.

24. On 23 May 2018 the review applicant through her representative requested an extension of time. The extension request stated that “as the case was refused on the secondary applicants’ health test”; the representative “was instructed to seek a further legal opinion from Counsel”. After careful consideration of the request the Tribunal refused the extension. The matter proceeded to hearing.

25. At the hearing the Tribunal discussed the history of the matter with the review applicant. The history reveals that the applicants have had several opportunities to seek further MOC opinions. The Tribunal noted that the recent request for an extension of time did not refer to any fresh medical evidence on which further opinions would be sought. 

26. The evidence before the Tribunal is that the MOC opinions obtained indicate that the applicants have failed to meet health requirements.

27. The review applicant, Ms Chea, indicated that she understood that the visa applicants did not meet the health criteria due to their respective disabilities. She claimed they needed “just special care”. She said they would not need support or help from government. She then indicated that if the visa applicants were unable to come she would request that just her parents come. She said she did not realize that with Contributory Parent visa applications if one applicant failed all failed.

28. The Tribunal asked about the visa applicants’ circumstances. The review applicant said she is the older sister of the visa applicants. She is 39. Her sister My My is aged 24 (now 25) she said and Sok Leng her brother is 29.The review applicant is married with two children; she has a married sister who also lives in Australia. She said the visa applicants were diagnosed with disability from birth.

29. After some discussion the Tribunal raised with the review applicant the personal power that the Minister for Home Affairs has pursuant to s.351 of the Act to intervene, after an unsuccessful review application, to nevertheless grant a visa.

30. The parties sought an adjournment to address Ministerial intervention guidelines.

31. On 13 June 2018 the Tribunal received a submission attaching a pay advice for the review applicant. On 26 July 2018 the Tribunal received a submission which was made up of school reports for the two children of the review applicant being Sofia Young and William Young; a payment summary for the tax year ended 30 June 2018 for the review applicant and her husband was included.

    The resumed hearing

32. As discussed with the parties, the Minister has powers under the Migration Act 1958 to intervene in a case when the Minister thinks it is in the public interest to do so.  What is and what is not in the public interest is for the Minister to decide. The Tribunal stresses that the Minister is not legally bound to intervene or to consider intervening.

33. The Tribunal asked the review applicant why she believed the visa applicants came within Ministerial guidelines.

34. The review applicant gave evidence that though the visa applicants do not meet the health criteria it is still her wish to bring her parents to Australia. She said her mother wants a reunion with her, her husband and children and with her married sister. The review applicant explained that she and her sister could not go and live with their parents in Cambodia due to family and work commitments in Australia and that they all want to be together.

35. The review applicant said that since her parents heard they may not get the visa because of the two applicants My My and Sok Leng, they have been looking for a relative or person to pay to look after them in Cambodia; the plan being that they would come to be with their daughters and family in Australia and they would visit the visa applicants in Cambodia.

36. Asked when it was that she first came to Australia the review applicant replied that she came in 2002. Her husband came in 1987. Both she and her husband work in factories. Her mother is aged 59 and her father 61. They run a selling business from home she said. The two visa applicants live with their parents.

37. It was the review applicant’s evidence that My My and Sok Leng have had no education or training; she said they just stay home. It was her evidence that they are not able to do anything at all due to their disabilities. She said there are no facilities in Cambodia to assist them. The review applicant said her parents own a house and land which they would sell so they could buy a house in Australia if they were able to come.

38. Asked when it was that she last visited Cambodia the review applicant replied that it was in March 2015.She said her mother visited in 2007 and her father in 2009. Asked why she has not visited her family in Cambodia more frequently the review applicant said it was difficult to do so to fit in with her children’s school holidays. She also said her children were not interested in going there. Her evidence is also that she and her husband are busy at work. She owns two properties and has a mortgage she said. All her husband’s family are in Australia. As well, her married sister has no children and her husband came on a refugee visa. All his family are also in Australia.

39. Asked how her family circumstances fit the Ministerial guidelines it was claimed that the review applicant has a dilemma in that she cannot travel frequently to Cambodia due to her commitments here and this impacts negatively on her and her family given her desire to have all her family together.

40. As noted above, the applicants undertook medical examinations during the processing of their applications and on 12 May 2017 the MOC determined that Mr Sok Leng Chea did not satisfy health requirements. On 22 May 2017 the MOC determined Ms My My Chea did not satisfy health requirements. The applicants were given the opportunity to seek reviews of the MOC opinions. The most recent being sought in March 2018.

41. In April 2018 the MOC determined the applicants’ did not meet health requirements.

42. The Tribunal has set out the MOC opinions above. The Tribunal has had regard to the Federal Court decisions in Robinson v MIMIA [2005] FCA 1626 and Ramlu v MIMIA [2005] FMCA 1735 and is satisfied that the MOC did not apply the wrong tests in these applications. Specifically, the Tribunal is satisfied that the MOC opinion in each case identifies the applicant’s condition to which the public interest criteria have been applied, has ascertained the form or level of the condition suffered by the applicant and has applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition.

43. The Tribunal is bound to accept the final assessment of the MOC to be correct for the purposes of deciding whether the applicants satisfy the relevant health criterion.

44. Accordingly, based on the opinion of the MOC, the applicants do not satisfy Public Interest Criterion 4005(1) (c).

    Ministerial intervention S.351 Migration Act 1958

45. The Minister's Guidelines for intervention are set out on the Department's website: >

    The Minister has provided guidance on the types of unique and exceptional circumstances that could be brought to the Minister’s attention. They include but are not limited to the following:

    ·     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.

    ·     Compassionate circumstances regarding the age and/or health and/or psychological state, of the applicant which if not recognized would result in serious, ongoing and irreversible harm and continuing hardship.

    ·     Circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in the applicant’s case.

    ·     Where the applicant cannot be returned to their country/countries of citizenship or usual residence due to circumstances outside their control.

46. The Tribunal has carefully considered the review applicant’s evidence, arguments and submissions regarding the visa applicants’ circumstances in light of Ministerial guidelines.

47. The Tribunal accepts the review applicant has two children doing well at school; it accepts that she and her husband are in the work force; it accepts her desire to unite her family in one place.

48. However no independent evidence has been provided to support the review applicant’s claim of emotional or continuing or irreversible hardship that would support strong compassionate circumstances such as contemplated by the Ministerial Guidelines. There is no medical evidence to support the review applicant’s claims.The Tribunal does not propose to recommend the matter to the Minister for intervention.  However, the Tribunal records that it remains open to the review applicant to consider these guidelines and make such a request if she believes that there are sufficient grounds to warrant Ministerial intervention.

49. As the applicants Mr Sok Leng Chea and Ms My My Chea have not satisfied the requirements of PIC 4005, the Tribunal must affirm the decisions under review.

    DECISION

50. The Tribunal affirms the decision not to grant the visa applicants Contributory Parent (Migrant) (Class CA) visas.

    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.