Chen (Migration)

[2022] AATA 5281

Chen (Migration) [2022] AATA 5281 (14 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jiazhi Chen

REPRESENTATIVE:  Mrs Margaret Taaffe (MARN: 0851585)

CASE NUMBER:  2111539

HOME AFFAIRS REFERENCE:               BCC2019/314042

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:         14 July 2022 at 1:40 pm (VIC time)

DATE OF WRITTEN RECORD:                3 August 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 03 August 2022 at 1:59pm

CATCHWORDS
MIGRATION – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled – Independent) – disease or condition likely to require health care or community services at significant cost to community – asymptomatic and well-controlled condition, and adherence to treatment – opinion of medical officer of commonwealth taken as correct – long residence, work and social networks – no discretion to consider circumstances – decision under review affirmed

LEGISLATION
Migration Regulations 1994 (Cth), Schedule 2, cl 189.225, Schedule 4, criteria 4005, 4010

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.

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 August 2021 to refuse to grant the visa applicant a Skilled Independent (Permanent) Subclass 189 visa under the Migration Act 1958 (Cth) (the Act).

2. At the hearing on 14 July 2022 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. Mr Jiazhi Chen, you lodged an application for a Subclass 189 Skilled Independent visa on 2 February 2019, and the delegate made a decision on 28 August 2021 to refuse your application.

4. Applicants for a visa must meet the requirements relating to the relevant subclass as set out under the Act and the Regulations before a visa can be granted. After careful consideration of all the information provided the delegate was not satisfied that you met the criteria for the grant of a Subclass 189 visa as set out under the Act and so she refused your application, and you appealed that decision to be reviewed by this Tribunal.

5. As I said, a visa cannot be granted unless the relevant criteria is satisfied, and in this case the question is whether clause 189.225 in Schedule 2 of the Migration Regulations is satisfied. And 189.225 says in part that the applicant satisfied Public Interest Cto riteria 4005 and 4010 (and as I have explained to you, public interest criteria we abbreviate PIC and pronounce “PIC”), and what it states is that:

6. The applicant is free from a disease or a condition in relation to which a person who has it would be likely to require health care or community services, and the provision of the health care or community services would be likely to result in a significant cost to the Australian community in the areas of health care and community services regardless of whether the health care or community services will actually be used in connection with the applicant.

7. You have today told the Tribunal that you have been in Australia for 13 years, all your adult life effectively. You work full-time as a secondary teacher and you spend a fair deal of time on the weekend tutoring, so you work hard. You have created large networks socially, business and professional in Australia and have very little social interaction with people in China. In China, you say your mother is the only member of your family who talks to you. You said you understood the law and there were a couple of points you wished to raise; that was the first of them.

8. The second was that you believe that this regulation was written in 1994 since when there have been many changes, particularly with the variety and availability of drugs, including very recently, synthetic drugs from overseas that come at very different costs to the nonsynthetic products. You say that should you have to you would be able to avail yourself of these synthetic drugs and therefore the cost to the Australian public would no longer be relevant. You said that life in China, should you be forced to go back, would be very, very difficult.

9. You referred to a recent detailed letter from [Professor A], the director of [a Medical department] at [a] Hospital, which talks about the fact that you have been a patient there since March 2015. She talks about the treatment that you have received and the fact that you have had [Medical detail deleted] from three months after starting the treatment, therefore have been [Medical detail deleted] to others. It says you are 100 per cent adherent with your current regime of [treatment] which includes 1 daily [Drug] tablet and you adhere to all [monitoring visits and tests]. It says you are [asymptomatic, well-controlled] with normal [functions] and your examination findings are normal. The letter goes on to say: It is anticipated he will have a normal life expectancy if he remains on [treatment]. He will require ongoing treatment for [medication] and will require medical review every six months for [monitoring].

10. And it goes into some detail and provides evidence of what has happened and your response to treatment.

11. On 9 September 2019 a Medical Officer of the Commonwealth (MoC) provided an initial opinion in which he stated he did not believe that you met the health requirement and therefore did not satisfy PIC 4005.

12. On 14 January 2022 the Tribunal wrote to you with the offer to apply for a further MoC opinion. You accepted that invitation and a further MoC opinion was gained, and that opinion was dated 17 February 2022. In that opinion it states:

13. The applicant has been assessed against public interest criteria 4005 for the period of a permanent stay in Australia. The applicant does not satisfy subparagraph PIC 4005(1)(c)(ii)(A) in schedule 4 for the Migration Regulations.

14. And it goes through: The applicant is a 30-year-old person with asymptomatic [Condition]. Form and Severity of the condition: the applicant has asymptomatic [Condition]. Requires [treatment]. Current Australian guidelines recommend that all persons with [Condition] should be treated indefinitely.

15. For the purpose of a MoC, and in line with PIC 4005 (2)(a), the applicant was assessed as a 27-year-old person to reflect your age at the time of the visa application. Provision of services to a hypothetical person with the applicant’s condition: a hypothetical person in Australia with the same condition as the applicant at the same severity would be likely to require long-term specialist health care services including but not limited to [pharmaceuticals]. This condition is likely to be permanent. I consider that a hypothetical person with this disease or condition at the same severity as the applicant would be likely to require health care or community services during the period specified above. These services would be likely to include medical services and pharmaceuticals. Provision of these healthcare and/or community services would be likely to result in a significant cost to the Australian community in the area of health care and/or community services.

16. And it goes through and says: In preparing this opinion I have had regard to the information available. It lists all the previous medical examinations, tests, information, various opinions of the Medical Officer of the Commonwealth, and the specialist report from [Dr A] dated 11 February 2022, and also from a report of hers dated 29 August 2019.

17. It was the ‘22 report that I read from. It noted the stable control for the applicant’s medical condition as reported in the latest specialist report from [Dr A] dated 11 February 2022, and it says: The current opinion is assessed against the latest notes for guidance of [Condition], July 2020.

18. You made the comment that if you were forced to, you could afford to bring in your own synthetic drugs. As I said to you, the regulations talk about the significant costs that could be incurred by someone who had this same condition, so it does not relate to an individual. And it says: Regardless of whether the healthcare or community services will actually be used in connection with the applicant.

19. In considering whether an applicant meets the health requirement the Tribunal must have regard to the opinion of the Medical Officer of the Commonwealth. It is not a matter in which the Tribunal has discretion.

20. The only grounds on which it can fail to accept the MoC opinion is if the opinion is not valid, and that requires the Tribunal to find the Medical Officer of the Commonwealth failed to ask the right questions and/or did not consider all the issues and the available evidence in coming to the opinion?

21. If the Tribunal is satisfied that it is a valid opinion it must accept that opinion. It is worth noting that in forming an opinion the MoC must consider not the applicant in question, but rather consider whether a hypothetical person in Australia with the same condition as the applicant at the same severity, would be likely to require long-term disability support services during a specified period, and that is the requirement.

22. The Tribunal is satisfied that in this case the MoC asked the right questions, considered all the issues and evidence available, and therefore is satisfied that the MoC opinion is valid.

23. Having found that the MoC opinion is valid which means you do not meet the health requirement, the Tribunal finds that you do not satisfy clause 189.225 as you do not satisfy PIC 4005. You are therefore not eligible for the grant of a 189 visa, and it is consequently the decision of this Tribunal to affirm the decision under consideration.

    DECISION

24. The Tribunal affirms the decision under review.

    Tim Connellan
    Member