Davies (Migration)

[2018] AATA 2323

Davies (Migration) [2018] AATA 2323 (31 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Frances Davies

CASE NUMBER:  1600947

DIBP REFERENCE(S):  CLF2009/170273

MEMBER:Kira Raif

DATE:31 May 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant an Aged Parent (Residence) (Class BP) visa.

Statement made on 31 May 2018 at 10:47am

CATCHWORDS
Migration – Aged Parent (Residence) (Class BP) visa – Subclass 804 (Aged Parent) – Health criteria – RMOC opinion and assessment – Ministerial Intervention sought – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359A
Migration Regulations 1994, r 2.25A, Schedule 2 cl 804.225, Schedule 4 PIC 4005

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 11 January 2016 to refuse to grant the applicant an Aged Parent (Residence) (Class BP) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of the UK, born in August 1940. The applicant applied for the visa on 23 December 2009. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.804.225 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 seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 10 April 2018 to give evidence and present arguments. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. 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 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.

5. 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 certain temporary visas, the applicant is excluded from the requirement to be free from a disease or condition likely to result in significant cost in the areas of health care and community services: PIC 4005(3).

6. As the applicant in this case has applied for a permanent visa, the exclusion provision in PIC 4005(3) does not apply and the applicant in this case must satisfy PIC 4005(1)(c)(ii)(A).

7. 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 the applicant free from the relevant diseases or conditions (PIC 4005(1)(a), (b), (c))?

8. There is no evidence before the Tribunal to indicate that visa applicant was the holder of a substituted Subclass 600 visa at the time of the application. The Tribunal finds that the applicant was not the holder of the substituted subclass 600 visa and must meet the PIC 4005.

9. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that in October 2012 the applicant was requested to undertake health examinations. In January 2014 the Medical Officer of the Commonwealth assessed the applicant as not meeting PIC 4005. The applicant provided additional medical evidence which was forwarded to the MOC. In May 2014 the MOC again formed an opinion that the applicant did not meet the health requirements. In November 2015, upon considering further medical evidence, the MOC again formed the view that the applicant did not meet the health requirements.

10. The Tribunal gave the applicant opportunities to seek further medical opinions. The applicant provided further evidence, which was referred to RMOC. The Tribunal received further RMOC opinions that the applicant did not meet the health requirement. The Tribunal wrote to the applicant pursuant to s. 359A of the Act inviting her comments on each of the adverse opinions.

11. The representative argues in written and oral submissions to the Tribunal that the RMOC opinions are not valid. The representative argues that the RMOC assessed the applicant against their own guidelines but there are several issues in relation to that assessment. Firstly, the applicant has been assessed in relation to a different degree of severity than what the applicant’s condition has, whereas the applicant’s condition is not of that severity, so the hypothetical person test is not met. Secondly, the representative notes that according to the Guidelines, the life expectancy would be reduced by 40% but this was not done in the applicant’s case. Again, that shows that the incorrect Guidelines have not been adhered to. The representative submits that the correct policy to be followed is the policy set out in PAMs and not the MOC Advice Pack, which is only identified as ‘policy support’ and not a binding policy. The representative notes that there is a contradiction between MOC Advice Pack and PAMs regarding the life expectancy. The representative submits there must be cogent reasons to depart from policy.

12. The Tribunal acknowledges the representative’s submission that there is inconsistency between PAM and the Advice Pack, however, the Tribunal is of the view that the opinion is not invalidated because it relies on one policy rather than the other. Insofar as the applicant argues that the MOC relied on the incorrect assessment of life expectancy, the Tribunal is mindful that neither PIC 4005 nor r. 2.25A specifies how life expectancy is to be calculated and in that regard, the policy may be more restrictive, and not authorised by the legislation. The Tribunal also does not accept that the MOC failed to have regard to the severity of the applicant’s condition as the MOC opinions indicate that the relevant medical evidence has been considered.

13. The Tribunal has formed the view that the MOC opinion is required and was obtained. The Tribunal is satisfied that the MOC has applied the correct test in forming the opinion. In particular, the Tribunal is satisfied that the opinion identified 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 has applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition. Based on the opinion of the MOC, the applicant does not satisfy public interest criterion 4005(1)(c).

14. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3). The Tribunal acknowledges that due the applicant’s age, settlement and support available in Australia, there may be compassionate factors in this case. The Tribunal will refer the matter to the Department.

    Conclusion

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

    DECISION

16. The Tribunal affirms the decision not to grant the applicant an Aged Parent (Residence) (Class BP) visa.

    Kira Raif
    Senior Member