Govindapillai Nayar alias Nair (Migration)

[2021] AATA 1352

Govindapillai Nayar alias Nair (Migration) [2021] AATA 1352 (19 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sadanandan Govindapillai Nayar alias Nair

Mrs Raji Sadanand Nayar

CASE NUMBER:  1830443

HOME AFFAIRS REFERENCE(S):          CLF2009/133196

MEMBER:John Longo

DATE:19 March 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Aged Parent (Residence) (Class BP) visas.

Statement made on 19 March 2021 at 1:40pm

CATCHWORDS
MIGRATION – Aged Parent (Residence) (Class BP) visa – Subclass 804 (Aged Parent) – health criteria – review MOC (RMOC) opinion – validity of RMOC opinion – ‘hypothetical person test’ – relevance of private medical insurance – compassionate factors – Ministerial Intervention requested – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), r 2.25A; Schedule 2, cls 804.226; Schedule 4, PIC 4005

CASES
Ramlu 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 decisions made by a delegate of the Minister for Home Affairs on 1 October 2018 to refuse to grant the applicants Aged Parent (Residence) (Class BP) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 21 September 2009. The delegate refused to grant the visa on the basis that the first named applicant, Mrs Raji Sadanand Nayar, (now referred to as the applicant) did not satisfy cl.804.226 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 applicants appeared before the Tribunal via video hearing on 11 January 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Dr Chitra Das, the applicant’s daughter, and Dr Keshav Das, the applicant’s son-in-law. The Tribunal hearing was conducted with the assistance of an interpreter in the Malayalam and English languages. The Tribunal exercised its discretion to hold the hearing by video hearing. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

4. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

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 applicant meets PIC 4005 as required by the criteria for the grant of the visa. PIC 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. The applicant in this case has been diagnosed with an advanced form of lung cancer with metastatic spread of the disease and need for ongoing chemotherapy.

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

7. PIC 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. PIC 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 certain temporary visas, the applicant is excluded from the requirement to be free from a disease or condition likely to result in significant cost in the areas of health care and community services: 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 and the applicant in this case must satisfy PIC 4005(1)(c)(ii)(A).

10. In determining whether a person meets PIC 4005(1)(a), (b) or (c), r.2.25A of the Regulations 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. 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 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.

12. The applicant provided to the Tribunal a copy of the primary decision record. On 26 April 2017 the Medical Officer of the Commonwealth assessed the applicant as not meeting PIC 4005. On 31 May 2017 the applicant, through their registered migration agent, was invited to provide additional medical information but no additional information was provided. The delegate proceeded to make a decision based on the MOC opinion on 26 April 2017.

13. The Tribunal gave the applicant an opportunity to seek a review MOC (RMOC) opinion. The applicant provided further evidence, which was referred to RMOC. The Tribunal received a further RMOC opinion that the applicant did not meet the health requirement, dated 4 December 2020. The applicant and representative provided oral submissions to the Tribunal on 11 January 2021 regarding the RMOC opinion. Subsequent to the hearing on 11 January 2021, the Tribunal wrote to the applicant, via their registered migration agent, inviting further written submissions on the validity of the adverse RMOC opinion dated 4 December 2020.

14. The representative stated in their written and oral submissions to the Tribunal that the RMOC opinion was not valid. The representative noted that the RMOC assessed the applicant against a hypothetical person with this disease or condition at the same severity as the applicant and that a person with this condition would be likely to result in a significant cost to the Australian community in the area of health care and or community services, but did not provide any estimate of the actual or projected costs to the Australian community and ignored the fact that Mr and Mrs Nayar have full private medical insurance including hospital cover.

15. The representative also argued that the RMOC opinion ignored that the applicants have been in Australia since 2002 and have not used any Australian community and government services in the areas of health care since that time, as all their treatment is fully funded by their health insurance and the gap payments are fully paid by Dr C Das and her husband. The representative further argued that the last scan showed that Mrs R Nayar presents a relatively stable disease and is managing her day-to-day affairs quite independently and may not need any assistance in the near future. The Tribunal notes that it is not necessary for the MOC to consider the financial circumstances or the applicant’s particular circumstances in the consideration of the ‘hypothetical person test’.

16. The Tribunal acknowledges the representative’s submission that the RMOC opinion did not provide any estimate of the actual or projected costs to the Australian community, however, the Tribunal is of the view that the opinion is not invalidated because it did not provide an estimate of the actual or projected costs. The Tribunal notes that neither PIC 4005 nor r. 2.25A specifies that the RMOC provide any estimate of the actual or projected costs. The Tribunal further notes that PIC 4005 specifically states that such considerations are to be determined regardless of whether health care or community services will actually be used in connection with the applicant. Therefore, the Tribunal finds that whether the applicant has access to private medical insurance is not a relevant consideration to determine the validity of the RMOC opinion. The Tribunal also does not accept that the MOC failed to have regard to the appropriate test under PIC 4005(1)(c)(ii)(A).

17. The Tribunal has formed the view that the MOC opinion is required and was obtained. The Tribunal is satisfied that the MOC has applied the correct test in forming the opinion. In particular, the Tribunal is satisfied that the opinion identified 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 has applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition. Based on the opinion of the MOC, the applicant does not satisfy PIC 4005(1)(c).

18. The Tribunal has determined that it is appropriate to refer the case to the Department for consideration by the Minister pursuant to s.351 of the Act, 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. The Tribunal has 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 acknowledges that due the applicant’s age, their settlement in Australia since 2003 and the applicant’s family and financial support available in Australia and the slow progression of her condition, there may be compassionate factors in this case. The Tribunal will refer the matter to the Department.

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

    DECISION

20. The Tribunal affirms the decision not to grant the applicants Aged Parent (Residence) (Class BP) visas.

    John Longo
    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)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).