Firth (Migration)

[2020] AATA 4750

Firth (Migration) [2020] AATA 4750 (5 August 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mrs Moira Firth

CASE NUMBER:  1904465

HOME AFFAIRS REFERENCE:               BCC2019/209146

MEMBER:  Rosa Gagliardi

DATE:  5 August 2020

PLACE OF DECISION:  Australian Capital Territory

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 05 August 2020 at 11:37am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Tourist stream – inability to depart Australia –health requirements not met – medical conditions – humanitarian considerations – ministerial intervention referral –decision under review affirmed

LEGISLATION

Migration Act 1958, s 65, 351

Migration Regulations 1994, Schedule 2, cl 600.213, 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 February 2019 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

1. The visa applicant applied for the visa on 26 January 2019. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream.

1. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.600.213, which requires the visa applicant to satisfy the Minister that the visa applicant satisfies public interest criteria (PIC) 4005; the health criteria.

1. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.213.

1. The applicant was too unwell to appear before the Tribunal on 2 July 2020 to give evidence and present arguments. Hence, the Tribunal received oral evidence by telephone from

   Mrs Janice Valerie Firth, who is the applicant's daughter.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. Clause 600.213 in Schedule 2 of the Migration Regulations requires:

cl.600.213

(1)The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4011, 4013, 4014, 4020 and 4021.

(2)If the applicant has not turned 18, the applicant also satisfies public interest criteria 4012, 4017 and 4018.

1. Cl.600.213(1) requires all the public interest criteria to be met - if one fails, all fail.

1. PIC 4005 specifically requires:

   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.

1. On 26 January 2019, the applicant lodged an application for a FA600 Visitor-Tourist Stream visa over the internet. The applicant requested a further stay until 3 January 2020. At the time of application the applicant’s daughter, Mrs Janice Valerie Firth, stated that she wanted her mother to have sufficient time to make a decision to migrate and, “We will then return to the UK to lodge an application and settle her affairs”. The applicant is currently onshore and living with her daughter in the Australian Capital Territory. Since the time of application, however, the applicant’s circumstances have taken a significant turn for the worst.

1. The applicant, a UK national, is now almost 87 years of age. On 17 January 2018 she undertook a chest x-ray and medical examination through an approved medical services provider as required by the regulations. On 21 January 2019, the Medical Officer for the Commonwealth (MOC) advised that the he/she had examined and evaluated the results of the examination, and that the applicant did not meet the health requirements as set out above for the grant of a Visitor visa.

1. Accordingly, the applicant did not meet PIC 4005 for the purposes of cl.600.213 and the visa was refused by the Department.

Potential compassionate/humanitarian reasons for referral to Minister for Ministerial Intervention

1. The Tribunal explained that it did not have discretion to remit the case even though there appeared to be compassionate and humanitarian considerations involved. The applicant was required to meet PIC 4005.

1. The applicant has, therefore, 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.

1. The Tribunal found the applicant’s daughter, Mrs Janice Valerie Firth, particularly persuasive at hearing as is the medical evidence regarding the applicant’s condition and inability to depart Australia, particularly during the COVID-19 pandemic. The applicant’s medical conditions, together with the applicant’s difficult past circumstances, may warrant the Minister granting the applicant the ability to remain in Australia to be cared for by her Australian citizen daughter, her next of kin and only child.

1. At hearing it was accepted by Mrs Janice Valerie Firth that there appeared to be no prospect of the applicant, her mother, meeting the health criteria even if a review of the initial assessment were conducted. If anything, it appears that the applicant’s condition has deteriorated. It is also doubtful that the applicant would meet the remaining criteria for the grant of the visa. This is particularly so in relation to the requirement that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. Firstly, the applicant herself does not have the capacity to form such an intention, and secondly, given her inability to depart Australia, it is clear that her stay, is not likely to be temporary.

1. The applicant’s Australian citizen daughter, Mrs Janice Valerie Firth, was particularly distressed at hearing about her mother’s condition. The applicant is suffering from a degenerative neurological disorder which has left her unable to speak with the loss of the use of her right hand. Losing the use of her hand so late in life makes preparing food and living independently very difficult. Immediately prior to visiting Australia, the applicant lived alone in the UK and has no brothers or sisters.

1. Moreover, in November 2017 the applicant while living in the UK fell down two flights of concrete stairs and fractured her collar bone. Mrs Janice Valerie Firth was unable to contact her and flew to the UK to find her mother in a very bad state. At the time the applicant had been living with her partner who had perpetrated family violence on the applicant, frequently abandoning and abusing her, and leaving her without food.

1. Mrs Janice Valerie Firth states that her mother has sufficient means of support financially, as she owns her own home and has significant funds in her savings account.  Her medical costs are also covered by the reciprocal health arrangement. The applicant’s daughter and her husband own their home and run a business and have significant assets. In her submission to the Tribunal, Mrs Janice Valerie Firth wrote:

Should my mother’s appeal be unsuccessful, and is forced to return to the UK within the 12-month period, this will place undue stress on an already vulnerable lady. My mother only wishes to spend what valuable time she has left with her only family, my husband and I.

1. Professor Paresh Dawda has provided a recent report on the condition of the applicant, dated 27 July 2020:

I write this letter in my capacity as general medical practitioner for the above named. Moira has advanced co-morbidities as outlined below. The conditions are progressive and she has indicators (based on the Gold Standards Framework (1)) suggesting a limited life expectancy of less than 12 months duration. She is bed bound and has no expressive communication and is fully dependent on all her care needs and as such I would consider her to (sic) not suitable for flying.

1. In his report Professor Paresh Dawda sets out the applicant’s medical conditions which include:

   ·Anxiety – 15/11/2019

   ·Dysphagia – 15/11/2019

   ·Visual impairment – 15/11/2019

   ·Hearing loss – 15/11/2019

   ·Double incontinence – 5/11/2019

   ·Corticobasal degeneration – 11/09/2019

   ·Alzheimer’s disease – 11/09/2019

   ·Recurrent falls – 11/09/2019

1. Mrs Janice Valerie Firth wrote to the Tribunal on 3 August 2020 to apologise for not being able to obtain letters from Members of Parliament to support her case, but her mother has been refusing food and was currently only on fluids. Her efforts were focussed on the applicant’s welfare. It may be, however, that Senator the Hon Zed Seselja and Mr David Smith MP, Member for Bean, Australian Capital Territory, will approach the Minister directly in support of this matter.

1. Given the applicant’s medical conditions, the risks associated with COVID-19 and the elderly, and given the applicant is realistically unable to fly out of Australia, the Tribunal considers that the applicant’s case may raise humanitarian considerations. Having 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 will refer the matter to the Department.

1. In the circumstances the Tribunal has no alternative but to affirm the decision under review as the applicant does not meet PIC 4005, for the purposes of cl.600.213.

DECISION

1. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Rosa Gagliardi Member