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

1. 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).

2. 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.

3. 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. 

4. 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.

5. The review applicant appeared before the Tribunal on 19 August 2021 by telephone to give evidence and present arguments.

6. The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. 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.

10. 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))?

11. 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.

12. 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).

13. In the present case, the temporary visa the applicant is seeking is not specified in Legislative Instrument IMMI 16/067. As such the health care and community services listed in instrument 11/073 are not excluded from consideration.

14. 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?

15. 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.

16. The visa applicant undertook a medical examination by a Medical Officer of the Commonwealth in order to assess his ability to meet the relevant regulation. 

17. On 19 March 2020 the Medical Officer for the Commonwealth found that the visa applicant did not satisfy the health requirements for PIC 4005(1)(c)(ii)(A) in Schedule 4 to the Regulations. 

18. The Medical Officer for the Commonwealth assessed the visa applicant against PIC 4005 for a period of 5 years. 

19. The Medical Officer for the Commonwealth (MOC) found that the visa applicant had a moderate functional impairment as a result of his Alzheimer’s Dementia.  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 dependant 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 noted the condition of the visa applicant was likely to be progressive.  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.

20. The MOC considered that 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.

21. The MOC noted that in preparing his opinion, he had regard to the information available to date concerning the visa applicant, including but not limited to the visa medical assessment and associated investigations of 16 March 2020; and reports from geriatrician Dr E. Wong of 14 October 2019 and 4 November 2019. 

22. On 14 April 2020 the delegate invited the visa applicant to comment on the adverse MOC, and to provide any supporting evidence the MOC was incorrect. On 20 April 2020 the review applicant Dr Daghighi responded on her father’s behalf, agreeing with the assessment that the visa applicant’s assessment would rise over time and he would require more care in the future.  The review applicant noted she was a medical practitioner and would be providing the care for her father.  She asked for the estimate of the cost of care to be reviewed.  No medical evidence was provided however to support such a statement.  The delegate determined subsequently no reassessment by MOC was required and refused the application for failing to meet PIC 4005.     

23. On 22 January 2021 the Tribunal wrote to the review applicant, noting the delegate had refused to grant the visa applicant a visa as he did not meet the relevant health criterion.  The Tribunal supplied the review applicant with the MOC of 19 March 2020 and invited the visa applicant to obtain a further opinion from the MOC.

24. On 22 February 2021 the review applicant responded through her representative, stating that the visa applicant would not take a further medical examination.  It was submitted that the visa applicant was now incontinent and would become agitated if separated from the people that he knows. 

25. Given this, the Tribunal has utilised the existing Form 884 received from the MOC dated 19 March 2020.  The MOC deemed the visa applicant did not meet the health requirements under PIC4005(c)(ii)(A).   

26. The Tribunal is satisfied the MOC has applied the correct test in forming their opinion.  The MOC of 19 March 2020 identifies the medical condition to which the public interest criterion has been applied. The form or level of the condition suffered by the visa applicant has been identified. The MOC has applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition.

27. The MOC notes a hypothetical person with this condition, at the same severity as the visa applicant, is  likely to require health care or community services during the period of 5 years in Australia.  The MOC states that the provision of these health care and/or community services would be likely to result in a significant cost to the Australian community in the area of health care and/or community services.  The opinion of each MOC was based upon available medical and other reports. 

28. The Tribunal has had regard to the decisions in Robinson v MIMIA (2005) 148 FCR 182 and Ramlu v MIMIA [2005] FMCA 1735 and is satisfied that the MOC did not apply the wrong test in this matter.

29. The Tribunal is satisfied that the MOC opinion identifies the applicant’s condition to which the public interest criteria have been applied, has ascertained the form or level of the condition suffered by the applicant and has applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition. 

30. As noted by the delegate, there is no provision for a waiver of PIC 4005.

31. Accordingly, based on the opinion of the MOC dated 19 March 2020, the visa applicant does not satisfy public interest criterion 4005(1)(c). As set out above, in accordance with r2.25A(3), the Tribunal must take the MOC opinion to be correct.

32. As the visa applicant has not satisfied the requirements of PIC 4005, he cannot satisfy the requirements in cl.870.228.

33. Accordingly, based on the opinion of the MOC, the applicant does not satisfy public interest criterion 4005(1)(c); and on this basis does not meet the criteria for the grant of the a Sponsored Parent (Temporary) (Class GH) visa.

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

35. At the Tribunal’s hearing, the review applicant and her representative raised the matter of Ministerial Intervention in this particular case.  The review applicant conceded the visa applicant was unable to meet the PIC 4005 criteria and acknowledged the Tribunal had no power to waive the requirement, 

36. The review applicant requested the Tribunal support their request for Ministerial Intervention pursuant to s351 of the Migration Act. The visa applicant asserts that there are compelling and compassionate circumstances which both justifies Ministerial Intervention and presumably satisfies the public interest requirement.

37. At the hearing the review applicant spoke about her father the visa applicant’s needs and the decline of his health due to his dementia.  She stated that he resides with her mother who was successful in her own application for a Sponsored Parent visa.  She states that her parents have been in Australia since September 2019 after they have lived for many decades in Canada.  In Canada they had been looked after by her sister who had faced in recent years considerable health challenges of her own including a diagnosis of breast cancer and long-standing depression.  She spoke of the daily care she provides the visa applicant and her mother, noting her occupation as a General Practitioner is a significant assistance in these endeavours.  She stated that she employs two part-time carers to assist.  The visa applicant noted that the visa subclass applied for provides no access to Medicare or other government assistance: she stated that she and her family are very happy to fund and finance every aspect of the care and support for both the visa applicant and her mother.  She expressed grave concerns as to how her father could return to Canada given his increasing dementia and incontinence.

38. The Tribunal found the review applicant to be an honest and truthful witness genuinely prioritising the care of her father.  The Tribunal accepts her statement that the family will pay privately for any medical costs associated with the visa applicant’s health.  The Tribunal accepts her evidence and notes the perverse situation should the visa applicant be compelled to separate from his wife at the age of 90 years of age after she has been granted her own visa.

39. The Tribunal considers on the evidence there are compassionate circumstances regarding the age and health and psychological state of the visa applicant, that if not recognised would result in serious, ongoing, and irreversible harm and continuing hardship.  The visa applicant has a loving family in Australia willing to provide him with ongoing care. Dr Daghighi has clearly articulated the nature of the support and care that she and her family are able to provide. 

40. 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

41. The Tribunal affirms the decision not to grant the visa applicant a Sponsored Parent (Temporary) (Class GH) visa.

    Justin Owen
    Senior 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.