Grayson (Migration)

[2018] AATA 4056

Grayson (Migration) [2018] AATA 4056 (30 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Ala Grayson

VISA APPLICANTS:  Mr Ion Brinza
Mrs Eugenia Brinza

CASE NUMBER:  1622345

DIBP REFERENCE(S):  2013/087660 OSF2013/087660

MEMBER:Stavros Georgiadis

DATE:30 August 2018

PLACE OF DECISION:  Adelaide

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

Statement made on 30 August 2018 at 2:03pm

CATCHWORDS
MIGRATION – Contributory Parent (Temporary) (Class UT) visa – Subclass 173 (Contributory Parent (Temporary)) – health criteria – progressive medical condition – multiple MOC assessment – does not meet health requirement – decision under review affirmed


LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.25A, Schedule 2 cls 31.1, 173.226, Schedule 4 PIC4005

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 Immigration on 5 December 2016 to refuse to grant the visa applicants Contributory Parent (Temporary) (Class UT) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 22 October 2013. The delegate refused to grant the visas on the basis that the second named visa applicant (now referred to as the visa applicant) did not satisfy cl.173.226 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 review applicant appeared before the Tribunal on 30 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Eugenia Brinza, the review applicant’s mother and the spouse of the primary visa applicant, Mr Ion Brinza.  The Tribunal hearing was conducted with the assistance of an interpreter in the Romanian and English languages.

4. The review applicant was represented in relation to the review by her registered migration agent but the agent was not present at the 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 visa applicants meet Public Interest Criterion (PIC) 4005 as required by the health criteria for the grant of the visas. Public Interest Criterion 4005, as it applies to this case, is extracted in the attachment to this decision. It requires an applicant, in certain circumstances, to undergo medical assessment, and to be free of certain diseases or conditions that may impact on the community. One of the applicants in this case has been diagnosed with Advanced Multiple Myeloma.

   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) requires an 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 that the applicants are 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. In the present case, the temporary visa Subclass 173 the applicants are seeking, is specified in Legislative Instrument IMMI 16/067 of the Register of Instruments - Health cases. As such the health care and community services listed in instrument 11/073 of the Register of Instruments are not excluded from consideration.

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. 

11. The Tribunal notes the submission and declaration from the review applicant that the applicants’ family have met and will continue to meet the costs for treatment and other services for the health care of Eugenia Brinza.  However, where an opinion of a MOC is required, the Tribunal must take it be correct: [r.2.25A(3)].

    Is a MOC opinion required?

12. On the evidence before the Tribunal, a MOC opinion is required. The Department invited the review applicant to provide an opinion from a Medical Officer of the Commonwealth in respect of the visa applicants meeting the requisite health criteria.  This was requested on 1 September 2015 in respect of both applicants. On 1 February 2015 information provided to the Department showed that the primary applicant, Ion Brinza, met the health requirements, but that Eugenia Brinza did not.  As a consequence, a further request was made to review the secondary applicant, Eugenia Brinza.

13. On 11 April 2016 the Department received a Haematology report in respect of Eugenia Brinza which was forwarded to the Medical Officer of the Commonwealth for assessment.  After reviewing the haematology and other reports, the MOC confirmed the diagnosis that Eugenia Brinza suffers from Advanced Multiple Myeloma and added: “This condition is likely to be progressive.” This is recorded by the Medical Officer of the Commonwealth on the Form 884 dated 3 June 2016 from BUPA. 

14. The Tribunal accepts the oral evidence that Ion Brinza and Eugenia Brinza are married and therefore, members of the same family unit (as spouses, as defined by Regulation 1.12). Although the primary visa applicant, Ion Brinza meets the health requirement for the visa, the application by the secondary visa applicant, Eugenia Brinza is restricted by cl.31 of the Regulations relating to the health of all family unit members (including non-migrating dependants). Relevantly, Schedule 2 criteria for certain visa classes (including for Subclass 173 visas) requires “all members of the family unit of the applicant seeking to satisfy the primary criteria to meet the health requirement ...” [cl.31.1].

15. On 6 July 2018 a further request for assessment by the MOC was made by the Department. This is the third assessment. On 11 July 2018 the MOC confirmed in the most recent Form 884 form that the applicant does not meet the health requirement and does not satisfy sub-paragraph PIC 4005(1)(c)(ii)(A) in Schedule 4 to the Migration Regulations.

16. 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. The Tribunal finds that the MOC has applied the correct test in forming the opinion as it is satisfied that the opinion identifies the medical condition to which the public interest criterion has been applied; 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. All this is set out in the Form 884 dated 11 July 2018 issued by the MOC (BUPA).

17. The Tribunal finds from this evidence that the applicant, Eugenia Brinza, does not satisfy the requirement that she:

    (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; ...

18. Accordingly, based on the opinion of the MOC, the applicant does not satisfy Public Interest Criterion 4005(1)(c).

19. As the applicant has not satisfied the requirements of PIC 4005, the Tribunal must affirm the decision under review in respect of all applicants as members of the same family unit.

20. The Tribunal affirms the decision not to grant the visa applicants Contributory Parent (Temporary) (Class UT) 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.