Chowdhury (Migration)

[2020] AATA 3811

Chowdhury (Migration) [2020] AATA 3811 (17 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Hamida Banu Chowdhury

CASE NUMBER:  1906601

DIBP REFERENCE(S):  CLF2016/51444

MEMBER:Mary Urquhart

DATE:17 September 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant an Aged Parent (Residence) (Class BP) visa.

Statement made on 17 September 2020 at 1:22pm

CATCHWORDS
MIGRATION – Aged Parent (Residence) (Class BP) visa – Subclass 804 (Aged Parent) – health criteria – assessment by medical officer of commonwealth for non-migrating husband – limited exception if unreasonable for person to undergo assessment – elderly and terminally ill husband holds medical treatment visa – some medical assessments provided – financial capacity to mitigate cost to Australian community – not unreasonable to undergo assessment – referred for ministerial consideration – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), Schedule 2, cl 804.226(2)(1)(b), Schedule 4, criterion 4005

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 19 March 2019 to refuse to grant the applicant an Aged Parent (Residence) (Class BP) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 24 August 2016. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.804.226 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 Mrs Hamide Banu Chowdhury appeared before the Tribunal on 2 September 2020 to give evidence and present arguments. The hearing was conducted by telephone in accordance with Tribunal Covid 19 arrangements. The Tribunal also received oral evidence from Ms Shompa Chowdhury. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.  

4. The 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.

6. The Tribunal recommends the application be forwarded to the Minister for consideration under s.351 of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this application is whether it is unreasonable in all the circumstances to have the applicant’s non-migrating husband undertake a medical assessment by the Medical Officer of the Commonwealth (MOC).

8. A visa applicant must meet Public Interest Criterion (PIC) 4005 as it is required by the criteria for the grant of the visa. Public Interest Criterion 4005 requires the applicant, and all members of their family unit to be free of certain diseases or conditions that may impact on the community. Member of a family unit is defined reg.1.1. It includes spouse.

9. The applicant Mrs Hamide Banu Chowdhury b. 2 August 1951 is married to Mr Nurul Absar Chowdhury b.28 January 1940. The Tribunal is satisfied that Mr Nurul Chowdhury meets the definition of a member of the applicant’s family unit.

10. Progressing the application, on 30 January 2019, the applicant was requested by the department to provide further information. The Department also made a request for the applicant’s non-migrating spouse to undertake a medical assessment in order for the applicant to meet the health requirements contained in cl.804.226.

11. The Department file reveals that on 4 February 2019 the applicant informed the Department that Mr Nurul Chowdhury would not undertake a medical assessment and would seek to satisfy cl.804.226(2)(1)(b) of the Act.

12. Cl.804.226(2)(1)(b) provides a limited exemption to the “one fails all fail” rule regarding the health requirement where the Minister is satisfied that it is unreasonable to require a person to undergo a health assessment for that criteria.

13. The Tribunal further notes that a MOC may decide that a particular applicant is not required to undertake a health assessment.

14. On 13 February 2019 the applicant responded to the Department’s request claiming that it would be unreasonable to require Mr Chowdhury to undergo a medical assessment and that “in any case” they could show that he meets the health criteria. The applicant claimed

    ·Her husband was born on 28 January 1940, so “is already 80 years old”.

    ·He “is very sick, and he has a very limited life span”, according to the doctor. He is now hospitalised again “for urgent care”.

    ·He has “no intention to seek to migrate to Australia” when his wife has become an Australian permanent resident.

    ·“As he will be leaving the world soon, he does not think that he even can do so”.

    ·He has provided the evidence that he has no TB or any other contagious diseases.

    ·He has been paying all his medical bills in time while he is taking medical treatment in Australia

    ·They sold their overseas properties and brought the sales proceeds to Australia to meet the medical costs. He can never be a burden upon an Australian community.

    ·Further, the applicant submitted that she enjoys her retired years in Australia. She has been residing here for the last 10 years, and she is also helping her eldest daughter, who is a single parent, to look after and care for her granddaughter, to support her daughter to work.

15. The Tribunal notes the delegate at first instance referred to departmental policy guidelines in regard to what may be considered unreasonable for a person to undergo a health assessment recording that they include, for example, a situation where there is an institutionalized family member, where custody arrangements prevent attendance for assessment and circumstances of serious endangerment to human life.

16. The evidence given at the hearing is that Mr Chowdhury, now aged 80, is currently in the Westmead hospital and has been since 11 August 2020. He was admitted with an internal haemorrhage diagnosed as gastric bleeding. The evidence given is that he had pneumonia, a bowel obstruction and has been sedated for a number of procedures.

17. Mrs Chowdhury’s evidence is that Mr Chowdhury was first diagnosed with Parkinson’s disease in 2006. He was at that time in the primary stage of the disease she said. Asked about her husband’s health at the time of application in 2016 the applicant said that his health had not been good since 2014 and that he was “not responding to treatment”.

18. The applicant gave clear evidence that if her husband went for a medical assessment at the time of application he would have failed and that would have impacted on her visa application. She gave evidence that her husband applied for a medical treatment visa before she made her application for the aged parent visa.

19. The Tribunal notes Department records indicate Mr Chowdhury made a successful application for a Medical Treatment (Visitor) visa UB602 on 5 July 2016, on 10 May 2018 and again on 17 June 2019.

20. The applicant gave evidence of the distressing health situation of her husband on and off from 2014 and details of the family situation in Australia in regard to her daughter Shompa. The applicant said her daughter was in an abusive marriage and in need of support. This evidence was supported by Ms Shompa Chowdhury at the hearing.

21. Ms Shompa Chowdhury gave evidence regarding her father’s health and his deteriorating health situation. In her view it would be unreasonable to put him through a medical assessment

22. Other evidence was provided by Mr Chowdhury’s doctors. In particular the Tribunal was provided with medical evidence from a GP, Dr Grant and letters from his cardiologist and neurologist.

23. The Tribunal received a submission on behalf of the applicant as follows:

    “We firstly wish to argue that the related medical information for Mr Nurul Absar Chowdhury should be enough to make a finding that he had met the requirements of PIC 4005”.

    It was submitted that “he does not suffer from tuberculosis, nor does he have a disease or condition that may result in a threat to public health in Australia or a danger to the Australian community”.

    “In this submission, attached please find a hospital discharge letter (dated 31 August 2018) from the Westmead Hospital to state that he does not suffer from TB based on an X-Ray chest for him or any other contagious disease or condition. So, he can meet PIC 4005 (a) and (b).”

    “Secondly, according to the letters from his cardiologist, neurologist as well as GP, the provision of the health care or community service to him would not likely to result in a significant cost to the Australian community in the areas of health care and community services or prejudice of the access of an Australian citizen or permanent resident to health care or community services”.

    “We secondly wish to argue that it would be unreasonable to require Mr  Nurul Absar Chowdhury to undergo the medical assessment for PIC4005.”

    “Attached please find his GP letter issued to him in February 2019. According to this letter, Mr Nurul Absar Chowdhury is a person who will be leaving this world soon. It is unconscionable to bother this elderly gentleman with this request. His wife felt unconscionable that she asked her husband to do so for her to be granted a resident visa. I submit that the tribunal should take back this request for the sake of our good conscience. Please be mercy and kind to this elderly gentleman. This letter further demonstrated that Mr Nurul Absar Chowdhury can meet the requirement PIC 4005 (3)(ii) (A) or (B).”

    “So, we submit that it would be unreasonable to make this requirement to Mr Nurul Absar Chowdhury, and the review applicant has met the requirement of cl.804.226”.

24. The Tribunal has considered two letters from Westmead hospital; one referring to Mr Chowdhury not having been treated for Tuberculosis.

25. The Tribunal reiterates the issue for determination is whether it is unreasonable for Mr Chowdhury to undertake a health assessment not whether he meets health requirements as claimed

26. Two Post Hearing submissions were received. One refers to the circumstances surrounding the parties extending their visitor visas and selling their home property.

27. The second reiterates their view that it would be unreasonable to expect Mr Chowdhury to undertake an assessment and states inter alia:

    “Both my client and I believe that it is evident that it would be unreasonable to require her husband to undertake assessment for PIC 4005 criteria for his current circumstances.

    If the tribunal still hold that it would be reasonable to require her husband to undertake the assessment for the criteria, I believe that her husband could meet PIC4005 if he is still physically able to undertake the assessment.

    As you know, he is a terminally ill person and will die soon and he is now just accepting palliative care administered at home after he is discharged this time, the costs for his medical care and community service would not reach the threshold policy level, which is AUD$49,000 (as per government’s current policy) before he dies. My client can provide the evidence to support it, if the tribunal requests it. As I submitted at the hearing, her daughter and herself believe that it is too merciless or selfish that they torture her father and husband to require him to do that at this moment. On this basis we also submit that it would be unreasonable”.

28. Submissions were provided as to the ability of Mr Chowdhury to mitigate any costs for treatments and included a Bank statement to support a claim of sufficient funds for Mr Chowdhury, evidence of his UK pension and of a rental income agreement.

29. In determining whether it is unreasonable to require the applicant’s husband to undertake a medical assessment the Tribunal has considered all the submissions provided, to both the Department and the Tribunal as well as the policy guidelines.

30. From the submissions it is evident that the applicant claims it is unreasonable for her spouse to undergo a health assessment to satisfy the health criteria. He claims the basis for this is his age, his ill health and that, somewhat inconsistently, he already satisfies the health criteria.

31. The Tribunal accepts that Mr Chowdhury is aged in his eighties. It accepts that he is unwell and has suffered from Parkinson’s disease since being diagnosed in 2006.It accepts he has a number of other medical conditions for which he is being treated. The Tribunal notes the evidence that he is in a position to mitigate the costs of his treatment and has health insurance. It accepts that he has been granted Medical Treatment visas in Australia. However, the central issue is whether these matters are sufficient to satisfy the intent of cl.804.226(2)(1)(b).

32. The Tribunal notes that the delegate at first instance recorded their view that an exemption requires a very serious circumstance and was of the view that a home visit could have been undertaken in relation to Mr Chowdhury.

33. After careful consideration the Tribunal has also formed the view that in order to attract the benefit of the provision there must be a very serious circumstance such as the examples referred to in policy guidelines. After careful consideration the Tribunal formed the view it is not unreasonable for Mr Chowdhury to undertake a health assessment.

34. The requirements for the visa to be granted are that each member of the family unit must satisfy cl.804.226. Mr Chowdhury has refused to undertake a health assessment and the Tribunal finds it is not unreasonable for him to undertake a health assessment. Accordingly, he is unable to satisfy condition 804.226 (2)(1)(b) PlC 4005. Therefore, the applicant does not meet condition 804.226.

35. The Tribunal acknowledges the very difficult circumstances faced by the applicant, her husband and their daughter and is sympathetic to the circumstances of the parties in this application.

36. As discussed at the hearing the Tribunal has no discretion in relation to the legislation for the grant of the visa. The only person with discretion, is the Minister unders.351 of the Act.

    Referral of cases to the Minister under s.351 of the Act

37. Under s.351 of the Act, the Minister may substitute for a decision of the Tribunal, a decision that is more favourable to an applicant, if the Minister thinks that it is in the public interest to do so.

38. As discussed with the applicant at the hearing, the Tribunal does not have the legal power to waive mandatory criteria prescribed for this class of visa. The only person who is able to waive the criteria is the Minister, where he believes it is in the public interest to do so. Section 351 of the Act states that the Minister can only intervene and substitute a decision that is more favourable to the applicant once the Tribunal has made an unfavourable decision. The powers are non-compellable, in the sense that the Minister has no duty to consider whether to exercise the relevant power, whether he is requested to do so by the applicant, or any other person, or in any other circumstances.

39. In deciding whether to refer the matter to the Minister for consideration under s.351, the Tribunal has had regard Minister's Guidelines on Ministerial powers (s351, s417, and s501J) available in the Procedures Advice Manual (PAM3) (the Guidelines).

40. Among other things, the Guidelines state that the Minister may consider exercising his discretion in cases that exhibit one or more “unique or exceptional circumstances”. The Guidelines then identify unique or exceptional circumstances, and other relevant information, that may be relevant, individually or cumulatively, in assessing whether a case involves unique or exceptional circumstances. They include 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. And compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognized would result in serious, ongoing and irreversible harm and continuing hardship to the person.

41. The Tribunal heard evidence regarding the applicant’s husband’s long history of illness, current medical situation and prognosis including life expectancy. The Tribunal heard evidence of the help and support given by the applicant and her husband to their Australian citizen daughter, a single mother. The Tribunal heard evidence of the difficulties of travel if the applicant’s husband was required to depart Australia.

42. The Tribunal is of the view the matter may be considered within the Ministerial guidelines for compassionate reasons and recommends it be referred to the Minister.

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

    DECISION

44. The Tribunal affirms the decision not to grant the applicant an Aged Parent (Residence) (Class BP) visa.

    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.