CHOW (Migration)

[2018] AATA 269

CHOW (Migration) [2018] AATA 269 (12 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr FAT CHEUNG CHOW

CASE NUMBER:  1621074

DIBP REFERENCE(S):  CLF2014/116207

MEMBER:Russell Matheson

DATE:12 February 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Contributory Aged Parent (Residence) (Class DG) visa.

Statement made on 12 February 2018 at 10:03am

CATCHWORDS
Migration – Contributory Aged Parent (Residence) (Class DG) visa – Subclass 864 (Contributory Aged Parent) – Non-migrating spouse – Health requirements not met – No evidence of divorce – Spousal relationship

LEGISLATION
Migration Act 1958, ss 5(1), 65
Migration Regulations 1994, rr 1.12, 2.25A, Schedule 2 cl 864.228, Schedule 4 PIC 4005

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 a decision made by a delegate of the Minister for Immigration on 21 November 2016 to refuse to grant the applicant a Contributory Aged Parent (Residence) (Class DG) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 21 August 2014. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.864.228 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.

3. The applicant appeared before the Tribunal on 17 November 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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 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 delegate in this case the delegate is not satisfied that the applicant meets cl.864.228 in Schedule 2 of the Regulations.

7. Cl.864.228 requires that If the applicant was not the holder of a Subclass 884 (Contributory Aged Parent (Temporary)) visa at the time of application, each member of the family unit of the applicant who is not an applicant for a Subclass 864 (Contributory Aged Parent) visa must satisfy the public interest criteria mentioned in the item in the table that relates to the applicant.

8. Member of the family unit  is defined at [1.12] (1)      For the definition of member of the family unitin subsection 5(1) of the Act, and subject to sub-regulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this sub-regulation called the family head) if the person is:

   (a)      a spouse or de facto partner of the family head; or

   (b)      a dependent child of the family head or of a spouse or de facto partner of the family head; or

   (c)      a dependent child of a dependent child of the family head or of a spouse or de facto partner of the family head; or

   [(d) omitted by SR 2004, 390 with effect from 02/04/2005 - LEGEND note]

   (e)      a relative of the family head or of a spouse or de facto partner of the family head who:

   (i)      does not have a spouse or de facto partner; and

   (ii)      is usually resident in the family head's household; and

   (iii)      is dependent on the family head.

9. 18.9      "One fails, all fail" criteria

   "One fails, all fail" criteria relating to members of the family unit apply to the main applicant.

   Clauses 143.229, 143.230, 173.226, 173.227, 864.227, 864.228, 884.226 and 884.227 provide that the main applicant generally cannot be granted a visa unless, as provided in the above clauses:

   ·those family unit members who are visa applicants satisfy the relevant PICs prescribed and

   ·those family unit members who are not visa applicants also satisfy the relevant PICs prescribed.

10. Evidence before the Tribunal is that Mrs Ling Tong is the non-migrating spouse of the applicant.  Although the Tribunal has been told that the applicant and Mrs Ling Tong have not lived together for 16 years, there is not probative evidence that the applicant and Mrs Ling Tong have divorced or that they have not continued in a spousal relationship. Therefore, Mrs Ling Tong is considered to be a member of the family unit of the applicant.

11. The applicant appeared before the Tribunal and declined to give evidence. The applicant’s migration agent in summary informed the Tribunal that the applicant is an elderly person who is totally reliant upon his son for care and support. Further stating that the applicant has in fact been separated from his wife for 17 years and is in the process of applying for a divorce and there is no likelihood of the parties reuniting.

12. Subsequently on the 30 November the applicant’s son by way of a written submission stated that he is the applicants sponsor and has a willingness and ability to care for and support the applicant at no public cost. Further stating that the applicant would be severely restricted if he had to return to Hong Kong as his social networks have diminished and as a result this would cause emotional and mental distress to the applicant. The sponsor further requested that the applicant be given a waiver on humanitarian and compassionate factors.

13. The Tribunal may accept that the refusal of the applicant’s visa could have an adverse impact on his health but it is obliged to form a decision based on PIC 4005 health requirements. If a MOC opinion is required the Tribunal has to determine if the correct test has been applied and must take the MOC opinion as correct if it is satisfied the MOC has applied the correct test in forming the opinion. Under the PIC 4005 health criteria there are no provisions that allow the Tribunal to apply a waiver. 

14. On 21 August 2014 the applicant lodged an application for permanent parent migration and listed Ms Ling Tong as a non-migrating spouse.

15. On 2 February 2015, the non-migrating spouse undertook medical examinations that had been requested by the Department. On 12 February 2015, a medical officer of the Commonwealth (MOC) provided an opinion that Mrs Tong met the health requirements with conditions. However the validity of such a health clearance only lasts for six months, and it expired on 12 August 2015. As the provision of the other requested documentation took several months, the case was not finalised before the expiry date.

16. On 09 October 2015, the Department requested that Ms Tong undertake new medical examinations, which she did so on 17 October 2015. On 27 October 2015, a Medical Officer of the Commonwealth (MOC) provided a new opinion that Ms Tong did not meet the health criteria as set out in PIC 4005.

17. On 04 January 2016, the applicant was given the opportunity to comment on the decision, and submit additional medical information/reports for Ms Tong, in order for the outcome to be reviewed.

18. A Form 956: Advice by a migration agent/exempt person of providing immigration assistance was received via e-mail on 03 February 2016. The applicant nominated a new migration agent, Dr Kui Kwang Shum, to be his authorised contact.

19. Between February and May 2016, the Department received an e-mailed reply to the invitation from Dr Shum, as well as a number of additional medical reports and letters for Ms Tong. The medical documents were forwarded to MOC for further assessment of Ms Tong’s health outcome on 03 May 2016.

20. The same day, MOC made a second decision that the non-migrating spouse, Ms Ling Tong, still did not satisfy the health requirements.

21. Clause 864.228 requires the primary applicant to satisfy primary criteria. It stipulates that any member of the primary applicant’s family unit who is not a visa applicant must satisfy certain criteria. Criteria include the specified Public Interest Criteria (PIC), one of which is PIC 4005, the health criterion. The non-migrating spouse, Ms Ling Tong, does not meet the prescribed health requirements outlined in PIC 4005. Therefore, as a member of his family unit does not meet a specified criterion, the primary applicant Mr Fat Cheung Chow, does not satisfy clause 864.228 of the Regulations.

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

22. Public interest criterion 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.

23. 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).

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

25. 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).

26. 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.

27. The MOC opinion dated 3 May 2016 indicates that the applicants spouse Ms Ling Tong is a 63 year old person with, asymptomatic chronic viral Hepatitis B. The MOC opinion states that a hypothetical person with the same condition and severity as the applicant would require ongoing specialist management and pharmaceutical services to stabilise the condition. 

28. The MOC opinion further states that a hypothetical person with this disease or condition, at the same severity would likely to require health care or community services such as medical services and pharmaceuticals and the provision of these devices would be at significant cost to the Australian community. Based on the opinion of MOC, Ms Tong long does not satisfy sub-paragraph PIC 4005(1)(c)(ii)(A) in Schedule 4 to the Regulations.

29. 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 Ms Tong’s condition to which the public interest criteria have been applied, ascertained the form or level of condition suffered by her and applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition.

30. The Tribunal is bound to accept the final assessment of the MOC to be correct for the purposes of deciding whether Ms Tong satisfies the relevant health condition. Accordingly, based on the opinion of MOC, Ms Tong does not satisfy the health requirements outlined in PIC 4005. It follows that the applicant Mr Chow does not satisfy cl.864.228 as Ms Tong is a member of his family unit. Accordingly the Tribunal must affirm the decision under review.

31. Although the Tribunal has been told that the applicant and Mrs Ling Tong have not lived together for 16 years and the applicant is in the process of divorcing his wife, there is not probative evidence that the applicant and Mrs Ling Tong have divorced or that they have not continued in a spousal relationship. Therefore, Mrs Ling Tong is the spouse of the applicant and is considered to be a member of the family unit of the applicant. Therefore the Tribunal finds that the applicant is and continues to be in a spousal relationship.

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

    DECISION

33. The Tribunal affirms the decision not to grant the applicant a Contributory Aged Parent (Residence) (Class DG) visa.

    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.