Dinh (Migration)

[2018] AATA 49

Dinh (Migration) [2018] AATA 49 (3 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Thi Chau Duc Dinh

CASE NUMBER:  1602316

DIBP REFERENCE(S):  CLF2013/41064

MEMBER:Nicholas McGowan

DATE:Wednesday 3 January 2018

PLACE OF DECISION:  Melbourne

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



Statement made on 03 January 2018 at 11:21am

CATCHWORDS
Migration – Aged Parent (Residence) (Class BP) visa – Subclass 804 (Aged Parent) – Requirement to be free of certain diseases or conditions – Medical Officer of the Commonwealth not satisfied requirement had been met – Tribunal required to take opinion of Medical Officer of the Commonwealth as correct

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

CASES
Robinson v MIMIA (2005) 148 FCR 182
Ramlu v MIMIA [2005] FMCA 1735

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 17 February 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 applied to the Department of Immigration for the visa on 26 February 2013.

3. The applicant provided the Tribunal with a copy of the delegate’s decision record. 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.

4. The review applicant was invited to appear before the Tribunal on Wednesday 3 January 2018 to give evidence and present arguments. The review applicant and the applicant attended the hearing via telephone from overseas.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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.

   Relevantly to this case, is the applicant free from the relevant diseases or conditions (PIC 4005(1)(c))?

6. 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).

7. In determining whether a person meets PIC 4005(1)(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?

8. 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 be 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.

9. On 15 December 2014 a Form 884 was received from the MOC (D1, f.118). On 25 August 2014 the Department advised the applicant and provided her with an opportunity to provide further information as to why she may meet the immigration regulations. On 22 September 2015 the applicant provided an additional medical report which the Department provided to the MOC. On 21 October 2015 the MOC concluded (D1, f.123) that s/he was not satisfied PIC4005(1)(c)(ii)(A) had been met.

10. The Tribunal is satisfied that the Officer’s assessment dated 21 October 2015 is valid, in that it identifies the medical condition to which the Public Interest Criterion has been applied; specifies 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 the form or level of the condition. The Tribunal is satisfied that the Officer has applied the correct test and is bound to accept the medical opinion to be correct.

    FINDINGS

11. Given all the above, and based on the opinion of the MOC, the applicant does not satisfy public interest criterion 4005(1)(c).

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

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

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