Daghighi (Migration) - [2021] AATA 4264

Daghighi (Migration) [2021] AATA 4264 (20 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Dr Mastaneh Daghighi
VISA APPLICANT:  Mr Mahmood Daghighi
CASE NUMBER:  2017035
HOME AFFAIRS REFERENCE(S):          BCC2020/366841
MEMBER:SM Justin Owen
DATE:20 August 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Sponsored Parent (Temporary) (Class GH) visa.

Statement made on 20 August 2021 at 12:49pm

CATCHWORDS
MIGRATION – Sponsored Parent (Temporary) (Class GH) visa – Subclass 870 (Sponsored Parent (Temporary)) – health criteria – MOC opinion – moderate functional impairment – Alzheimer’s Dementia – significant cost to the Australian community – compassionate circumstances – serious, ongoing, and irreversible harm and continuing hardship – Ministerial Intervention requested – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.25A; Schedule 2, cl 870.228; Schedule 4, PIC 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 Home Affairs on 3 November 2020 to refuse to grant the visa applicant a Sponsored Parent (Temporary) (Class GH) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 10 February 2020. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.870.228 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.
At the time of decision, the visa applicant is 90 years-old. He resides with his wife who successfully applied for a Sponsored Parent (Temporary) (Class GH) visa at the same time as the applicant. They are cared for by their daughter, the review applicant who is a General Practitioner and resides nearby as well as two part-time carers funded by the review applicant.
The Tribunal exercised its discretion to hold the hearing by teleconference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the review applicant was given a fair opportunity to give evidence and present arguments.
The review applicant appeared before the Tribunal on 19 August 2021 by telephone to give evidence and present arguments.
The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND…

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 Daghighi (Migration)

Details

AGLC: Daghighi (Migration) [2021] AATA 4264
Case: [2021] AATA 4264
Decision Date: 20 August 2021

CaseChat Overview and Summary

This matter concerned an application for a Sponsored Parent (Temporary) (Class GH) visa, subclass 870. The applicant was found by a Medical Officer of the Commonwealth (MOC) not to meet the health requirement under Public Interest Criterion (PIC) 4005. The MOC assessed the applicant as having moderate functional impairment due to Alzheimer's Dementia, a progressive condition requiring supervision and assistance with daily living. The MOC concluded that a hypothetical person with a similar condition would likely require community care services, resulting in significant cost to the Australian community. The review was heard by Senior Member Justin Owen of the Tribunal.

The central legal issue before the Tribunal was whether the visa applicant met PIC 4005, specifically subclauses (1)(a), (b), and (c). These subclauses require an applicant to be free from tuberculosis, free from diseases posing a threat to public health or danger to the community, and free from conditions likely to require health or community services that would result in significant cost to the Australian community or prejudice access for Australian citizens or permanent residents. The Tribunal was required to consider the MOC's opinion regarding the applicant's Alzheimer's Dementia and its implications for the PIC 4005 requirements.

The Tribunal considered the MOC's finding that the applicant's Alzheimer's Dementia constituted a moderate functional impairment, was progressive, and would likely necessitate health or community services, leading to significant costs for the Australian community. While the Tribunal acknowledged the applicant's circumstances and the potential for serious, ongoing, and irreversible harm and continuing hardship, it affirmed the decision not to grant the visa. However, the Tribunal also considered the Ministerial guidelines relating to the Minister's discretionary power under s.351 and concluded that the case should be referred to the Department for consideration by the Minister.

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. On 19 March 2020 the Medical Officer of the Commonwealth found that the visa applicant did not meet the health requirement PIC 4005. The MOC assessed the visa applicant against PIC 4005 for a period of 5 years. The MOC found that applicant had a moderate functional impairment on a background of Alzheimer’s Dementia. The MOC found the condition was likely to be progressive. The MOC found that the visa applicant requires supervision and assistance with some of his activities of daily living. The MOC found that the applicant will become increasingly dependent as the condition is progressive. The MOC found that a hypothetical person with the same condition of a similar severity would require community care services in the form of a home care package. The MOC considered that a hypothetical person with this disease or condition, at the same severity as the visa applicant, would be likely to require health care or community services during the period of 5 years specified. These services were likely to include community services. The MOC found that a hypothetical person with this condition, at the same severity as your father, was likely to require health care or community services during the period specified. These services were likely to include community services. Provision of these services was likely to result in a significant cost to the Australian community in the areas of health care and/or community services.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).

Decision

Reasons for decision

Having regard to the visa applicant’s circumstances, and having considered the Ministerial guidelines relating to the Minister’s discretionary power under s.351, set out in the Department’s Procedures Advice Manual (PAM3) the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention. DECISION The Tribunal affirms the decision not to grant the visa applicant a Sponsored Parent (Temporary) (Class GH) visa.Justin OwenSenior MemberATTACHMENTMigration 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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