Gomez (Migration)
[2019] AATA 2880
•21 March 2019
Gomez (Migration) [2019] AATA 2880 (21 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mrs Carmen Analeen Gomez
CASE NUMBER: 1803447
DIBP REFERENCE(S): CLF2008/54253
PLACE OF DECISION: Melbourne
DECISION:This tribunal refers this case to the Minister pursuant to s.351 of the Act; and,
Regrettably, this tribunal affirms the decision not to grant the applicant an Aged Parent (Residence) (Class BP) visa.
Statement made on 21 March 2019 at 12:35pm
CATCHWORDS
MIGRATION – Aged Parent (Residence) (Class BP) visa – Subclass 804 (Aged Parent) – health criteria not met – compassionate circumstances – 91 year old applicant – no family support in home country – 11 years older than when visa application process began – referred for ministerial intervention – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 65, 351Migration Regulations 1994, Schedule 2, cl 804.225, Public Interest Criterion 4005, r 2.25A
CASES
Ramlu v MIMIA [2005] FMCA 1735
Robinson v MIMIA (2005) 148 FCR 182MINISTERIAL INTERVENTION
This tribunal refers this case to the Minister pursuant to s.351 of the Act.
This tribunal is satisfied that because the applicant does not meet the health requirements she has been unable to meet the criteria for the grant of the visa.
The Minister’s own (initial) MOC opinion dated 6 May 2008 (at department folios 116-117) states clearly:
“Consideration should be given to a long term medical treatment visa under the frail aged provision as this applicant would be too frail to depart Australia.”
That was 11 years ago. The applicant will turn 92 years of age in two months.
The applicant is a 91 year old mother of one, grandmother of two, and great grandmother of three (all of which are Australian citizens).
The applicant is the second of eight children, of which only three siblings are alive, and all of which are located abroad, one in London, the other two in Sri Lanka. All of them are aged well into their 80s.
The applicant’s first husband died in a motorcycle accident when their first (and the applicant’s only child) was aged one. The applicant remarried some 12 years later, and remained such until his death in 2007.
The applicant’s only daughter moved to London in 1975. With her husband and one child (at that time) she immigrated to Australia in 1982. Their second child is an Australian born citizen. Their two children are the applicant’s only grandchildren. The applicant now has three great grandchildren, the youngest being five months old.
The applicant travelled to Australia in 2008, after the death of her second husband, and his failure to provide for her in his Will. She has lived in Australia since, in paid private care-based accommodation.
For 20 years, the applicant’s daughter and son-in-law ran their own business for 20 years. They have since retired.
The family claim the applicant, and they, would face emotional hardship should the applicant be required to return to Sri Lanka. This is in addition to the practical difficulties and absence of a support network and family in Sri Lanka. Moreover, the applicant is now some 11 years older than when this process began, and clearly not capable of caring for herself minus her daughter’s and broader family support.
The Tribunal considers that the circumstances of this case will raise the following matters:
· Strong compassionate circumstances such that a failure to recognise them would result in irreparable harm and continuing hardship to several Australian citizens.
Having regard to the circumstances of the applicant and sponsor, and the sponsor’s children and their children, as outlined above and having considered the Ministerial guidelines relating to the Minister's discretionary power under section 351 set out in PAM3 "Minister's guidelines on ministerial powers (sections 345, 351, 417, 454 and 501J)" this tribunal considers this case should be referred to the Minister.
This tribunal considers should the applicant be compelled to return to Pakistan it could have an adverse emotional impact on the sponsor, her husband, their two children and three grandchildren.
It would also be a cruel and unusual punishment paid upon a frail and old lady (the applicant).
However, these are not matters that this tribunal is able to take into account in making its decision in relation to the review of the subclass 804 visa application.
As the applicant does not satisfy an essential criterion for the visa, the Tribunal has no choice but to affirm the decision under review. Only the Minister has the discretion to intervene and take these circumstances into account.
It is the sincere hope of this tribunal that the Minister makes a more favourable decision in relation to the applicant’s application for the subclass 804 visa.
REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration on 25 January 2018 to refuse to grant the applicant an Aged Parent (Residence) (Class BP) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied to the Department of Immigration for the visa on 24 January 2008. The criteria for a Subclass 804 visa are set out in Part 804 of Schedule 2 to the Regulations.
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.
The review applicant was invited to appear before the Tribunal in a public hearing scheduled for Thursday 21 March 2019 to give evidence and present arguments. The applicant attended the hearing with her migration agent, sponsor, sponor’s husband and another witness.
CONSIDERATION OF CLAIMS AND EVIDENCE
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))?
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).
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?
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.
On 3 January 2018 a final MOC concluded (T1, f.5) that the applicant did not satisfy PIC4005(1)(c)(ii)(A).
The Tribunal is satisfied that the Officer’s assessment dated 3 January 2018 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.
It is clear to the Tribunal from the medical report that the applicant’s mental and physical health continues to deteriorate. This is consistent with the applicant’s agent submission to the Tribunal. For these reasons, and because the Tribunal has considered the validity of the MOC, which is not contested by the applicant; the Tribunal has not sought another MOC.
FINDINGS
Given all the above, and based on the opinion of the MOC, the applicant does not satisfy public interest criterion 4005.
As the applicant has not satisfied the requirements of PIC 4005, the Tribunal must affirm the decision under review.
The Tribunal affirms the decision not to grant the applicant an Aged Parent (Residence) (Class BP) visa.
* * * * *
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)Sub-subparagraph (1) (c) (ii) (A) does not apply if:
(a)the applicant would not be eligible for the provision of the health care or community services; and
(b)the ineligibility would be due to the temporary visa for which the applicant is applying being of a particular subclass; and
(c)the subclass is not specified by the Minister in an instrument in writing made under subparagraph (2) (b) (ii).
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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