Chen (Migration)

[2018] AATA 3712

Chen (Migration) [2018] AATA 3712 (17 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Yuanyuan Chen

VISA APPLICANTS:  Mr Shaochang Chen
Ms Weizhu Chen
Mr Liangtuan Chen

CASE NUMBER:  1709578

DIBP REFERENCE(S):  2014/084533

MEMBER:Russell Matheson

DATE:17 July 2018

PLACE OF DECISION:  Sydney

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

Statement made on 17 July 2018 at 12:39pm

CATCHWORDS
Migration – Contributory Parent (Migrant) (Class CA) visa – Subclass 143 (Contributory Parent) – Whether the health requirements are met by all members of the applicant’s family unit – Where a member of the applicant’s family unit has a chronic medical condition – Where the cost of treatment would represent a significant cost to the community – Health criteria not satisfied by the applicant’s family unit – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.25A, Schedule 2, cls 143.229, 143.324, Schedule 4, PIC 4005

CASES
Ramlu v MIMIA [2005] FMCA 1735
Robinson v MIMIA (2005) 148 FCR 182

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 7 March 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 10 March 2014. The delegate refused to grant the visas on the basis that the third named visa applicant Mr Liangtuan Chen did not satisfy cl.143.324 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. As a result the primary visa applicant Mr Shaochang Chen did not meet cl.143.229 of Schedule 2 to the Regulations.

3. The review applicant appeared before the Tribunal on 12 July 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the primary visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin 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 the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this review is whether the third named visa applicant, Mr Liangtuan Chen, meets PIC 4005 as required by the criteria for the grant of the visa. Mr Liangtuan Chen is a member of the family unit of the first named visa applicant, Mr Shaochang Chen, and if he does not satisfy PIC 4005 then he will not be eligible for the grant of the visa pursuant to cl.143.229. PIC 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.

7. The third named visa applicant in this case (Mr Liangtuan Chen) failed to meet the health requirements because he has [Medical Condition 1] which the Medical Officer of the Commonwealth (MOC) assessed as representing a significant cost to the Australian community.

8. On 2 February 2016 the applicants Shaochang CHEN, Weizhu CHEN and Liangtuan CHEN were invited to undergo health assessments in relation to the application within a reasonable period (28 days).

9. On 15 April 2016 information provided to the Department confirmed that Shaochang Chen and Weizhu Chen met health requirements; however, Liangtuan Chen did not meet the health requirements needed to satisfy PIC 4005.

10. A Natural Justice letter was sent to the authorised recipient inviting the client to comment prior to making a final decision on this application. On 7 June 2016 the Department received the Biochemistry report and additional medical information which the Department forwarded to the medical officers for further assessments.

11. The Department received Form 884 medical reports dated 25 February 2016, 21 March 2016 and 8 June 2016 from the MOC advising that the third named visa applicant Mr Liangtuan Chen still does not meet the health requirements.

12. The Department received a further Form 884 MOC opinion dated 29 January 2018 that the third named visa applicant Mr Liangtuan Chen does not meet the health requirement. In preparing this opinion, the MOC had regard to the information available to date concerning the applicant, including, but not limited to, the panel physician examination and associated test results of 9 February 2016, reports from Dr Cheng (18 February 2016 and 5 March 2016), Dr Shew (17 March 2016 and 14 April 2016), Dr Nghi Phung (15 April 2016), biochemistry results (13 February 2016, 7 April 2016 and 7 May 2016) and [Medical Condition 1] result (7 April 2016).

13. The review applicant appeared before the Tribunal and provided a report from Dr Guang Chen a [medical specialist], dated 16 June 2018. In summary the doctor states that he is treating the third named visa applicant Mr Liangtuan Chen for [Medical Condition 1] and his medication is [a particular course of medication]. The doctor further states his long-term point of view that he is hopeful that Mr Liangtuan will [substantially improve his condition] in the next few years. He also states if [Medical Condition 1] remains well [supressed], he will consider ceasing [the current medication course]. The Tribunal accepts that Mr Liangtuan Chen requires long-term treatment.

14. The review applicant told the Tribunal that the family had a conversation and asked Mr Liangtuan Chen to stop taking his medication and take traditional Chinese medicine. She further stated that Mr Liangtuan Chen is only young and his health improved by taking the Chinese medicine. The review applicant said that the latest medical reports are optimistic and she believes that Mr Liangtuan Chen will not need medication in one to two years and this will alleviate any significant cost to the community. The Tribunal accepts that the review applicant is of the view that the applicant’s health has improved.  

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

15. PIC 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.

16. PIC 4005(1)(c) requires the applicant to 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 services are excluded from this consideration: PIC 4005(3).

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

18. 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 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 to be correct: r.2.25A(3).

    Is a MOC opinion required?

19. The applicants, who are nationals of China, provide a copy of the delegate’s primary visa refusal to the Tribunal. It indicates that during the processing of the Contributory Parent (Migrant) (Class CA) visa applications, Mr Liangtuan Chen was required to undertake health examinations and the MOC formed the view that he did not meet the health requirements.

20. The Tribunal finds that Mr Liangtuan Chen was not the holder of a Subclass 173 (Contributory Parent (Temporary)) visa, or a substituted Subclass 600 visa at the time of his visa application and further that he applied for the Contributory Parent (Migrant) (Class CA) visa on the basis that he is a member of the family unit of Mr Shaochang Chen. Therefore, Mr Liangtuan Chen must satisfy the PIC 4005 requirements for the purposes of cl.143.324.

21. 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.

22. The MOC opinion dated 29 January 2018 indicates that Mr Liangtuan Chen is a 27 year old male suffering [Medical Condition 1] with [particular features]. Further, this condition is likely to be permanent and it was determined by MOC that the health care services and [pharmaceuticals] needed to treat the condition would represent a significant cost to the community.   

23. Accordingly, based on the opinion of the MOC, the applicant does not satisfy sub-subparagraph PIC 4005(1)(c)(ii)(A) in Schedule 4 to the Regulations.

24. There is no evidence before the Tribunal that the MOC applied the wrong test in this matter. Specifically, the Tribunal is satisfied that the MOC opinion identified Mr Liangtuan Chen’s condition to which PIC 4005 has been applied, ascertained the form or level of condition suffered by him and applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the conditions. Accordingly the Tribunal is satisfied the MOC opinion is valid.

25. Although the review applicant is of the view the third named visa applicant’s health has improved using traditional Chinese medicine the tribunal is satisfied that the MOC opinion is valid and remains current. The Tribunal is not satisfied that PIC 4005 (1)(c) is met at the time of decision.

    FINDINGS

26. The Tribunal is bound to accept the final assessment of the MOC to be correct for the purposes of deciding whether Mr Liangtuan Chen satisfies the relevant health criterion. Accordingly, based on the opinion of the MOC, Mr Liangtuan Chen does not satisfy the health requirements outlined in PIC 4005. It follows that the first named visa applicant Mr Shaochang Chen does not satisfy the requirements of cl.143.229, as the third named visa applicant Mr Liangtuan Chen is a member of his family unit. Accordingly the Tribunal must affirm the decision to refuse the primary applicant’s visa.

27. As the third named visa applicant does not satisfy PIC 4005, he is unable to meet cl.143.324. Further as the first named visa applicant, Mr Shaochang Chen, does not meet the criteria for the grant of the visa, it follows that he cannot meet cl.143.229. Accordingly the Tribunal must also affirm the decision to refuse the second and third named applicants’ visas.

28. As the third named visa applicant Mr Liangtuan Chen has not satisfied the requirements of PIC 4005, the Tribunal must affirm the decision under review.

    DECISION

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

    Russell Matheson
    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.