Eager (Migration)

[2018] AATA 5463

Eager (Migration) [2018] AATA 5463 (26 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Jean Carol Eager

CASE NUMBER:  1606949

DIBP REFERENCE(S):  CLF2014/76468

MEMBER:Mary Urquhart

DATE:26 October 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 26 October 2018 at 10:44am

CATCHWORDS

MIGRATION – Aged Parent (Residence) (Class BP) visa – Subclass 804 (Aged Parent) – medical assessment – strong compassionate circumstances – request for Ministerial Intervention – decision under review affirmed     

LEGISLATION

Migration Act 1958, ss 65, 351
Migration Regulations 1994, Schedule 2, 804.225, Schedule 4, Public Interest Criterion 4005

CASES

Ramble 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 Immigration on 4 May 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 for the visa on 26 May 2014. The delegate refused to grant the visa on the basis that the applicant Mrs Jean Carol Eager 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.

3. The applicant applied to the Tribunal for review of the delegate’s decision.

4. On 30 August 2018 the Tribunal invited the applicant to a hearing on 2 November 2018.

5. On 25 October 2018 the Tribunal received a response to its invitation to a hearing. it included a submission and advice that the applicant will not be attending the hearing. the response indicated the applicant would like the review determined on the papers and further advised that if the review was unsuccessful the applicant intends to make an application to the Minister seeking his intervention in the public interest. It was submitted that there are strong compassionate circumstances in relation to the Australian citizen family and the Australian community and particularly the Australian citizen grandchildren of the applicant. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. The applicant Mrs Eager is a national of the United Kingdom born 31 December 1945. She has one living child, Mr Stephen Peter Eager who is an Australian citizen residing in regional Western Australia. She made her application on the basis of being an aged parent of her son.

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

9. 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.

10. 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).

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

    Is a MOC opinion required?

12. On the evidence before the Tribunal, a MOC opinion is required.

13. The applicant has been diagnosed with advanced breast cancer.

14. The history of the matter reveals that on the 29 June 2015, a letter was sent via email and post to the Migration agent requesting the applicant to provide documents and undertake health examination to meet the requirements for the Aged Parent (Residence) visa. The applicant was requested by the Department to undergo medical examinations, chest x-rays and HIV blood tests in order to satisfy Public Interest Criteria 4005 of Regulation 804.225.

15. On the 15 July 2015 the Medical Officer of the Commonwealth deferred the applicant’s medical case. The applicant was required to provide an Oncologist report.

16. On the 30 July 2015, the Medical Officer to the Commonwealth (MOC) assessed Ms Jean Carol Eager against Public Interest Criteria (PIC) 4005 and concluded that she does not satisfy sub- subparagraph PIC 4005(1) (c) (ii) (A) in Schedule 4 to the Migration Regulations.

17. On the 3 August 2015 a letter was sent via email to the Migration agent giving the applicant an opportunity to provide further medical information as to why the application may meet the immigration regulations.

18. No response to the natural justice letter sent on the 3 August 2015 was received.

19. The visa application was subsequently refused.

20. No further opinions by a MOC have been sought or received.

21. 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 Ramble 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.

22. The MOC noted the form and severity of the applicant’s condition: stage 4 breast cancer which was first diagnosed in 1994. The MOC applied the hypothetical person test and referred to likely services which the applicant would require.

23. The Tribunal is satisfied that the MOC opinion dated 15 July 2015 applied the correct test and therefore must be taken to be correct. Based on the opinion of the MOCs, the applicant does not satisfy public interest criterion 4005(1) (c). As the applicant does not satisfy the health requirements the applicant has not satisfied the requirements for the visa and the Tribunal.

24. Accordingly as the applicant has not satisfied the requirements of PIC 4005, the Tribunal must affirm the decision under review.

25. The Tribunal notes the applicant has indicated that she will ask the Minister to consider exercising his discretionary powers set out in section 351 of the Act.

26. The Minister has issued the “Minister’s Guidelines on Ministerial Powers” set out in the Procedures Advice Manual (known as PAM3). The Guidelines outline that the Minister will consider exercising his powers under section 351 where an individual’s situation involves “unique or exceptional circumstances”.

27. As the applicant did not accept the hearing invitation the Tribunal has not had an opportunity to hear evidence of compassionate circumstances. However based on the detailed submission (folio 42-71 Tribunal file) the Tribunal is of the view the matter may be considered within the Ministerial guidelines and should be referred to the Minister.

28. As the Tribunal has affirmed the decision in this case, it is as well, open to the applicant to seek Ministerial Intervention.

    DECISION

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

    Mary Urquhart
    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.