CLARK (Migration)

[2021] AATA 1776

CLARK (Migration) [2021] AATA 1776 (6 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Jean Dorothy Clark

CASE NUMBER:  1925463

HOME AFFAIRS REFERENCE(S):          CLF2016/30008

MEMBER:David Crawshay

DATE:6 May 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 06 May 2021 at 10:59am

CATCHWORDS
MIGRATION – Contributory Aged Parent (Residence) (Class DG) visa – Subclass 864 (Contributory Aged Parent) – health criteria – MOC opinion – severe functional impairment – cost to the Australian community – no response to s.359A invitation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363
Migration Regulations 1994 (Cth), r 2.25A; Schedule 2, cl 864.223; Schedule 4, PIC 4005

CASES
Hasran v MIAC [2010] FCAFC 40
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 Home Affairs on 21 August 2019 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 13 May 2016. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.864.223 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 were not met. The Tribunal notes in this regard that the applicant failed to provide an opinion of a Medical Officer of the Commonwealth (MOC) despite being given what the delegate described as “ample” opportunities to provide such an opinion.

3. Since then, the Tribunal has been provided with a MOC opinion in respect of the applicant dated 26 June 2020. The MOC opinion stated that the applicant did not meet the health requirements and specifically PIC 4005(1)(c)(ii)(A).

4. On 21 April 2021, the Tribunal wrote to the applicant pursuant to s.359A of the Act, inviting her to comment on or respond to information that it considered would be the reason or a part of the reason for affirming the decision under review in writing – namely, the adverse MOC opinion dated 26 June 2020.

5. The invitation was sent to the last address provided in connection with the review and advised that, if the comments or response were not provided in writing by 5 May 2021, the Tribunal may make a decision on the review without taking further steps to obtain the comments or response and the applicant would lose any entitlement she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. The applicant has not provided the comments or response within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if the applicant has no entitlement to a hearing, the Tribunal has no power to permit her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the comments or response.

7. The applicant was represented in relation to the review by her registered migration agent.

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this review is whether the visa applicant meets 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 applicant in this case suffers from severe functional impairment.

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

10. 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.

11. 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).

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

13. 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?

14. 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.

15. On 26 June 2020, a MOC opinion was given in relation to the applicant which relevantly stated as follows:

    The applicant has been assessed against Public Interest Criterion (PIC) 4005 [see attached extract] for the period of a permanent stay in Australia.

    The applicant does not satisfy sub-subparagraph PIC 4005(1 )(c)(ii)(A) in Schedule 4 to the Migration Regulations.

    The applicant is a 91 year old person with:

    - Severe functional impairment

    Form and severity of the applicant's condition: The applicant has a severe functional impairment on a background of general frailty and cognitive decline, with bradycardia and recurrent falls and subsequent fractures. She is dependent in most of her Activities of Daily Living. Provision of services to a hypothetical person with the applicant's condition: A hypothetical person with the same condition of a similar severity would require a high level of home care services. 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:

    Community care services

    Provision of these health care and/or community services would be likely to result in a significant cost to the Australian community in the areas of health care and/or community services.

    In preparing this opinion, I have had regard to the information available to date concerning the applicant, including, but not limited to the visa medical assessment and associated investigations (dated 19/11/2019); and a report from Geriatrician- Dr N Rawlinson (dated 25/01/2020).

    [bracketed words in original]

16. As above, on the basis of the MOC opinion, on 21 April 2021 the Tribunal sent a s.359A letter to the applicant, seeking her comment on or response to the information contained within the opinion. As at the time of this decision, none has been received.

17. The Tribunal has considered the MOC opinion. It has considered that it identifies the medical condition to which the public interest criterion has been applied and the form or level of the condition. It has considered that the MOC has referred to the hypothetical person who suffers from the form or level of the applicant’s condition.

18. The Tribunal is satisfied that the MOC has applied the correct test in relation to the applicant and is valid. It is also satisfied that the MOC opinion is current. It should therefore be taken to be correct and the Tribunal is satisfied that it is correct.

19. Accordingly, based on the opinion of the MOC, the applicant does not satisfy public interest criterion 4005(1)(c). Therefore, the applicant does not meet cl.864.223.

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

    DECISION

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

    David Crawshay
    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.