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

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).
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.
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.
The review applicant was represented in relation to the review by her registered migration agent.
For the following reasons, the Tribunal has concluded that decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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.
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))?
Public interest criterion 4005(1)(a) and (b) require the applicants to be…

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 Chea (Migration)

Details

AGLC: Chea (Migration) [2018] AATA 3676
Case: [2018] AATA 3676
Decision Date: 30 July 2018

CaseChat Overview and Summary

This matter concerned an application for a Contributory Parent (Migrant) (Class CA) visa, subclass 143, by Mr Sok Leng Chea and Ms My My Chea. The dispute centred on whether the secondary applicants met the health requirements stipulated by Public Interest Criterion (PIC) 4005, a condition precedent for the grant of the visa. The decision was made by a member of the Tribunal.

The primary legal issues before the Tribunal were whether the applicants were free from tuberculosis, free from any disease or condition that posed a threat to public health or the Australian community, and free from any disease or condition that would likely require significant health or community services, thereby imposing a substantial cost on the Australian community or prejudicing access for Australian citizens and permanent residents. The Tribunal was required to determine if a Medical Officer of the Commonwealth (MOC) opinion was necessary and, if so, to treat it as correct, provided it was formed in accordance with the statutory criteria.

The Tribunal reasoned that PIC 4005, particularly subclauses (1)(a), (b), and (c), imposed strict health requirements on applicants for permanent visas. It noted that for permanent visa applications, the exclusions provided for temporary visas under PIC 4005(3) did not apply. The Tribunal was bound by regulation 2.25A to seek and accept the opinion of a MOC unless specific exceptions applied, which they did not in this instance. The Tribunal found that a MOC opinion was required and that it must be satisfied the MOC applied the correct legal test. As the applicants had not satisfied the requirements of PIC 4005, the Tribunal was compelled to affirm the decisions under review.

Consequently, the Tribunal affirmed the decision not to grant the Contributory Parent (Migrant) (Class CA) visas to the applicants.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE 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. 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. 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))? 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. 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). As the applicants in this case have applied for permanent visas, the exclusion provisions in PIC 4005(3) do not apply. 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? 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

Decision

Reasons for decision

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