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

1. 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).

2. 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.

3. 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.

4. In these circumstances and under s.360 (2) of the Act, the Tribunal has proceeded to determine the application.

5. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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))?

8. 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.

9. 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).

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

11. 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)

12. On the evidence before the Tribunal, a MOC opinion is required.

13. 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.

14. The history of this matter reveals that on 18 August 2016, a letter was sent to the applicant requesting him to provide documentation, including a health assessment, for this application.

15. On the 28 November 2016 the MOC assessed the applicant against Public Interest Criterion (PIC) 4005 and found that the applicant was a 61 year old person suffering from severe diabetes mellitus. The MOC gave an opinion that the applicant did not meet the health requirement for the period of a permanent stay in Australia. The applicant therefore did not satisfy PIC 4005(1)(c)(ii)(A) in schedule 4 to the migration regulations.

16. On 12 December 2016 an invitation to comment letter was sent to the applicant advising him that he has been assessed as not meeting the health requirement for the grant of an Other Family Carer (subclass 836) visa. The applicant was invited to provide further medical evidence for the MOC to consider.

17. The file reveals that in response, the applicant provided a statement outlining his circumstances and the management of his medical condition. The applicant also outlined the impact a negative decision would have on his elderly mother, for whom he is currently providing care. The applicant did not provide any new medical information for the MOC to consider. The delegate refused the application.

18. The applicant sought an appeal.

19. On 15 January 2018 the Tribunal sought comment from the applicant regarding the MOC opinion of 28 November 2016 and provided an opportunity for the applicant to obtain a further MOC opinion. The applicant requested a further opinion and provided further medical evidence. The request for a further MOC opinion was made on 10 April 2018.

20. On 24 April 2018 a MOC provided an opinion that the applicant does not satisfy health requirements as he does not satisfy PIC 4005 (1) (c) (ii) (A). The MOC described the applicant as a 63 year old person with severe diabetes mellitus. He described the condition as likely to be permanent. The MOC applied the hypothetical person test and found a person with the same condition, and of the same severity would require the provision of medical services which would likely include health care/community serves.

21. The Tribunal  notes the MOC opinion refers to took the fresh medical information provided by the applicant.

22. The Tribunal has had regard to the Federal Court decisions in Robinson vMIMIA [2005] FCA 1626 and Ramlu v MIMIA [2005] FMCA 1735 and is satisfied that the MOC did not apply the wrong test in this matter.

23. The Tribunal is bound to accept the final assessment of the MOC to be correct for the purposes of deciding whether the applicant satisfies the health criterion.

24. The Tribunal finds, on the basis of the evidence before it, that the applicant does not meet the health requirement set out in PIC4005. The Tribunal is, therefore, not satisfied that the applicant meets PIC 4005 for the purposes of cl.836.223 of Schedule 2.

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

    DECISION

26. The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) 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.