Do (Migration)

[2019] AATA 3211

Do (Migration) [2019] AATA 3211 (6 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Vuong Quoc Do

VISA APPLICANTS:  Mr Dinh Doan Do
Mrs Thi Son Nguyen

CASE NUMBER:  1833025

DIBP REFERENCE(S):  2015/021983 OSF2015/021983

MEMBER:Stavros Georgiadis

DATE:6 June 2019

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision not to grant the visa applicants Contributory Parent (Migrant) (Class CA) visas.

Statement made on 6 June 2019 at 6:18pm

CATCHWORDS
MIGRATION – Family – Contributory Parent (Migrant) (Class CA) visa – Subclass 143 –does not meet health criteria – not free from disease or condition that is threat to public health in Australia – applicant would require health care for permanent condition – significant cost to Australian community – does not have discretion relating to compassionate or compelling circumstances – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), r 2.25A, Schedule 2, cl 143.225, Schedule 4, PIC 4005

CASES
1826279 (Migration) [2019] AATA 523 (4 March 2019)
Ramlu v MIMIA [2005] FMCA 1735
Robinson v MIMIA (2005) 148 FCR 182

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 3 October 2018 to refuse to grant the visa applicants Contributory Parent (Migrant) (Class CA) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 18 February 2015. The delegate refused to grant the visas on the basis that the first named visa applicant (the visa applicant) did not satisfy cl.143.225 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 were not met. The delegate found that the second named visa applicant (as a member of the same family unit) could also not satisfy the requisite criteria for the grant of the visa.

3. The review applicant appeared before the Tribunal on 3 June 2019 to give evidence and present arguments. The review applicant is the brother of the first named visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 visa applicant, in certain circumstances, to undergo medical assessment, and to be free of certain diseases or conditions that may impact on the community. In this case the delegate concluded that the visa applicant could not meet 4005(1)(c)(ii)(A) finding that the visa applicant is not free from disease or condition in relation to which a period of services (the period being as described in subclause (2)) will likely lead to significant cost to the Australian community in areas of health care and community services for the purpose of meeting cl.143.225.

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

7. 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.

8. 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).

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

10. 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?

11. The Subclass 143 visa the applicant seeks is not a temporary visa.  The applicant had provided medical information for the purpose of it being considered by the MOC (BUPA Medical Visa Services). On the evidence before the Tribunal, a MOC opinion is required. The most recent MOC opinion is dated 16 April 2019. There are two previous MOC opinions that find the applicant “does not meet” health criteria for the grant of the visa.

12. The most recent (third) MOC dated 16 April 2019 also opines that the visa applicant does not meet the required health requirement for the purpose of assessment against PIC 4005(1)(c)(ii)(A).

13. At the hearing, the Tribunal put to the visa applicant in accordance with the procedure under s.359AA of the Act that adverse information contained in the MOC of 16 April 2019 (relating to the opinion that the visa applicant does not meet the health requirement) would be the reason, or part of the reason, for affirming the decision under review.  The Tribunal also raised the issue that under Regulation 2.25A(3), where an opinion of a MOC is required, the Tribunal must take it be 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. The applicant requested and was granted additional time to respond to this issue and the Tribunal received further written submissions beyond those provided prior to the hearing which the Tribunal has also considered.

14. The submissions provided prior to the hearing essentially question the assumptions and calculations by the MOC that led to the MOC opinions of ‘does not meet’ the health requirement and in particular, that the ‘significant costs’ calculated for medical health care and community service costs were erroneously based on the visa applicant’s life expectancy of 71 years (in Vietnam) compared to 80 years (in Australia).  The Tribunal has considered these submissions in the context of the issue of whether the Tribunal must take a MOC opinion to be correct under r.2.25A(3) in circumstances where an opinion of a MOC is required.

15. The Tribunal notes specifically, that the issue of the differentiated life expectancy was raised in the medical report of Dr Martha Baz dated 18 March 2018 (at page 2) and that this is one of the reports listed in the documents considered by the MOC in forming the opinion of 16 April 2019. Relevantly, the MOC states: “In preparing this opinion, I have had regard to the information available to date concerning the applicant, including, but not limited to the ... reports from ... Dr Martha Baz (18 March 2018); ...”

16. On 6 June 2019 the Tribunal considered the further written submissions which relevantly, set out (in part) as below:

    ... “I refer to the hearing for Mr Vuong Quoc DO held before the Tribunal on Monday 3 June 2019.  On that date you indicated that you would receive additional submissions relating to the issue of the Medical Officer of the Commonwealth’s provision of a Form 884 opinion relating to the visa applicant, Mr Do’s father. He has [a medical condition].
    I invite your attention to the Administrative Appeals Tribunal case of [Specified]. This case involved an application for a 143 visa an applicant with [a certain medical condition]. A Health Undertaking (Form 815) was provided by the applicant, accepted by the MOC, and a positive health assessment was provided by the MOC.

    I further invite your attention to the Administrative Appeals Tribunal case of 1826279 (Migration) [2019] AATA 523 (4 March 2019). This case involved a number of MOC opinions, all unfavourable. The end result was that the applicant provided a signed Health Undertaking (Form 815) and a positive health assessment was provided by the MOC.

    In both cases the AAT remitted the applications back to the Department for visa grant.

    I attach both these cases, and a signed Form 815 provided by the visa applicant.
    I confirm that the Procedural Instruction relating to the Schedule 4/4005-4007 – The Health Requirement pages 29 and 30 (when printed) confirm that the MOC may request a health undertaking for [a certain medical condition]. ...”

17. The Tribunal notes that in the case of 1826279, the Tribunal remitted the matter as the MOC found the applicant now met the health requirement for a permanent stay in Australia, subject to him providing a signed undertaking in accordance with PIC 4005 (1)(d). That case is distinguished from the present matter as the MOC found in that case that the health criteria were met (subject to the health undertaking requested by the MOC) whereas, in the present matter, the MOC opines the health requirement is not met and does not request a health undertaking.  Relevantly, the decision also records “the Tribunal takes the MOC opinion dated 12 February 2019 to be correct.” 

    In the other case of Qin, the MOC opinion dated 15 February 2018 found that the visa applicant’s husband meets the health requirement with an undertaking. Again in this case the accepted MOC with health undertaking distinguishes the present matter which opined “does not meet” the health requirement and also does not request a health undertaking.  Relevantly, the Tribunal notes the decision record (at paragraph 17) in Qin: “Where an opinion of a MOC is required, the Tribunal must take it be correct: r.2.25A(3).” 

18. At the hearing of the present matter, the visa applicant was invited to make submissions in respect of the issue of any discretion regarding the opinion of the MOC or, whether the Tribunal must take it be correct under r.2.25A(3).  The applicant has not provided any case authority regarding any available discretion on this point. The Tribunal is satisfied from the submissions and from its own reading of Regulation 2.25A(3) that where an opinion of a MOC is required (as is the case here), the Tribunal must take it be correct: r.2.25A(3) if satisfied that the MOC has had regard to the applicant’s condition and the form or level of the condition suffered by the applicant ([named medical condition]), and that the MOC has applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition.

19. The Tribunal accepts from the updated MOC discussed with the review applicant dated 16 April 2019 that the visa applicant is a 68 year old person diagnosed with [a certain medical condition]. The Tribunal has had regard to the MOC opinion of 16 April 2019 that the visa applicant would require health care and/or community services for the period of a ‘permanent condition’ and that this is would be likely to: result in a significant cost to the Australian community in the areas of health care and community services (including but not limited to [pharmaceuticals] and medical review). 

20. The Form 884 MOC (BUPA Medical Visa Services) opinion of 16 April 2019 sets out as follows:

    ... “Form and severity of the applicant's condition: the applicant has [a certain medical condition]. There is evidence of [injury]. Provision of services to a hypothetical person in Australia with the same condition as the applicant and at the same severity: a hypothetical person in Australia with the same condition as the applicant, at the same severity, would be likely to require long term specialist health care services, including but not limited to [pharmaceuticals] and medical review. This condition is likely to be Permanent.

    I consider that a hypothetical person with this disease or condition, at the same severity as the applicant, would be likely to require health care or community services during the period specified above.

    These services would be likely to include:

    Medical services

    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.

    In preparing this opinion, I have had regard to the information available to date concerning the applicant, including, but not limited to the panel physician examination of 18 December 2017; reports from Dr Dang Thi Ngoc Ha (5 January 2018), and Dr Martha Baz (18 March 2018); ultrasound result (General Department of Logistics Military Hospital 354 dated 12 March 2019); blood test results (General Department of Logistics Military Hospital 354 dated 12 and 13 March 2019); chest X-ray result (General Department of Logistics Military Hospital 354 dated 12 March 2019); and urine test result (General Department of Logistics Military Hospital 354 dated 12 and 13 March 2019)..” ...

21. In further reply to the invitation to comment or reply on the above adverse information, the review applicant responded that [the medical condition] is common in Vietnam and that his brother, is living a very normal lifestyle as the [medical condition] does not affect him in any way.  He added that his brother continues to be treated with Chinese medicine in Vietnam.

22. The Tribunal accepts that it does not have discretion in this matter relating to any compassionate or compelling circumstances for the purposes of PIC 4005(1)(c)(ii)(A) and that where an opinion of a MOC is required as is the case here, it must take the MOC opinion be correct: r.2.25A(3).

23. The Tribunal is satisfied the MOC has applied the correct test in forming the opinion. That is, the opinion of 16 April 2019 identifies 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 that the MOC has applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition. In these circumstances, the Tribunal must take the MOC opinion as correct: r.2.25A(3).

24. The Tribunal finds from the most recent MOC opinion of 16 April 2019 discussed above, that the visa applicant does not satisfy the requirement that he:

    1(c)     is free from a disease or condition in relation to which:

    (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; ...

25. Accordingly, based on the opinion of the MOC (BUPA Medical Visa Services) of 16 April 2019, the applicant does not satisfy Public Interest Criterion 4005(1)(c)(ii)(A) to meet the requirements of cl.143.225 of Schedule 2 for the grant of the Subclass 143 visa.

26. As the first named visa applicant has not satisfied the requirements of PIC 4005, the Tribunal must affirm the decision under review in respect of the second named visa applicant as a member of the same family unit.

27. The Tribunal must affirm the decision under review in respect of all visa applicants.

    DECISION

28. The Tribunal affirms the decision not to grant the visa applicants Contributory Parent (Migrant) (Class CA) visas.

    Stavros Georgiadis
    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.