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

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).
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.
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).
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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading CLARK (Migration)

Details

AGLC: CLARK (Migration) [2021] AATA 1776
Case: [2021] AATA 1776
Decision Date: 6 May 2021

CaseChat Overview and Summary

This matter concerned an application for a Contributory Aged Parent (Residence) (Class DG) visa, subclass 864. The applicant sought review of a decision not to grant the visa. The central issue before the Tribunal was whether the applicant met Public Interest Criterion (PIC) 4005, which requires applicants to be free from certain diseases or conditions that could pose a threat to public health or result in significant costs to the Australian community.

The Tribunal was required to determine if the applicant satisfied PIC 4005(1)(a), (b), and (c). Specifically, this involved assessing whether the applicant was free from tuberculosis, free from diseases or conditions that posed a threat to public health or the Australian community, and free from conditions likely to require significant health or community services, leading to substantial costs or prejudice to Australian citizens and permanent residents. The Tribunal also had to consider whether a Medical Officer of the Commonwealth (MOC) opinion was required and, if so, whether it was correctly applied.

The Tribunal reasoned that PIC 4005, as it applied to a permanent visa application, did not contain the exclusions available for temporary visas. The applicant suffered from severe functional impairment, necessitating a MOC opinion. Under regulation 2.25A, the Tribunal must accept a MOC opinion as correct, provided it is satisfied the MOC applied the correct statutory test. However, the applicant had not responded to an invitation under section 359A of the Migration Act 1958, which would have allowed for the provision of necessary information or a medical assessment. Consequently, the applicant had failed to satisfy the requirements of PIC 4005.

The Tribunal affirmed the decision under review, concluding that the applicant had not met the health criteria for the grant of the Contributory Aged Parent (Residence) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE 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))? 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. 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). As the applicant in this case has applied for a permanent visa, the exclusion provision in PIC 4005(3) does not apply. 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? 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.

Decision

Reasons for decision

As the applicant has not satisfied the requirements of PIC 4005, the Tribunal must affirm the decision under review.DECISION The Tribunal affirms the decision not to grant the applicant a Contributory Aged Parent (Residence) (Class DG) visa.David CrawshayMemberATTACHMENTMigration Regulations 1994Schedule 44005(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.

Ratio Decidendi

Legal Principle Established

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