Collins (Migration) - [2018] AATA 2056

Collins (Migration) [2018] AATA 2056 (4 June 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Gordon Collins
CASE NUMBER:  1727248
DIBP REFERENCE(S):  CLF2014/69202
MEMBER:Mary Urquhart
DATE:4 June 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.
Statement made on 04 June 2018 at 11:15am

CATCHWORDS
Migration – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – Medical condition – Request for a further MOC opinion – Applicant does not satisfy the health requirements – Decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, r 2.25A Schedule 2 cl 836.223 Schedule 4 Criteria 4005
CASES
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 Immigration on 19 October 2017 to refuse to grant the applicant a Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant, Mr Gordon Collins born 19 January 1955, a national of India, applied for the visa on 8 May 2014. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.836.223 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 was not met.
The applicant was invited to a hearing before the Tribunal on 4 June 2018. On 1 June 2018 2012 the applicant, through his representative, notified the Tribunal he would not attend the hearing and requested the Tribunal to determine the application on the evidence before it. No further information in support of his claims was given by the applicant in his application for review.
In these circumstances and under s.360 (2) of the Act, the Tribunal has proceeded to determine the application.
The applicant was represented in relation to the review by his registered migration agent.
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 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. 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…

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 Collins (Migration)

Details

AGLC: Collins (Migration) [2018] AATA 2056
Case: [2018] AATA 2056
Decision Date: 4 June 2018

CaseChat Overview and Summary

This matter concerned an application for an Other Family (Residence) (Class BU) visa, subclass 836 (Carer). The applicant sought review of a decision not to grant the visa, which was heard by Member Mary Urquhart of the Tribunal. The central dispute revolved around whether the applicant satisfied Public Interest Criterion (PIC) 4005, which pertains to health requirements for visa applicants.

The Tribunal was required to determine if the applicant was free from tuberculosis, or from a disease or condition that posed a threat to public health or the Australian community. Furthermore, the Tribunal had to assess if the applicant was free from a disease or condition that would likely necessitate significant health or community services, leading to substantial costs or prejudice to Australian citizens and permanent residents. The Tribunal also considered the procedural requirement to obtain and correctly apply the opinion of a Medical Officer of the Commonwealth (MOC) in assessing these health criteria.

The Tribunal reasoned that for permanent visa applications, the exclusion provisions for certain health and community services under PIC 4005(3) did not apply. It was established that a MOC opinion was required in this case. While a MOC opinion is generally taken as correct, the Tribunal must first be satisfied that the MOC applied the correct legal test, identifying the specific medical condition and assessing it against the statutory criteria. As the applicant had not satisfied the requirements of PIC 4005, the Tribunal affirmed the decision under review.

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 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. 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 an opinion of a required?Medical Officer of the Commonwealth (MOC) 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 an Other Family (Residence) (Class BU) visa.Mary UrquhartMemberATTACHMENTMigration 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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