Harper (Migration)

[2019] AATA 3956

Harper (Migration) [2019] AATA 3956 (24 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Angeline Patricia Harper

VISA APPLICANT:  Ms Sri Ningsih Tan

CASE NUMBER:  1902565

DIBP REFERENCE(S):  OSF2009/068654

MEMBER:Russell Matheson

DATE:24 June 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Parent (Migrant) (Class AX) visa.

Statement made on 24 June 2019 at 12:23pm

CATCHWORDS

MIGRATION – Parent (Migrant) (Class AX) visa – Subclass 103 visa – applicant did not meet the health requirement –applicant does not satisfy public interest criterion 4005 – valid  MOC opinion – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, r.2.25A, Schedule 2, cls 103.224, Schedule 4, Public Interest Criterion (‘PIC’) 4001, 4002, 4003,4004,4005, 4009, 4010, 4019

CASES
Ramlu v MIMIA [2005] FMCA 1735

Robinson v MIMIA (2005) 148 FCR 182

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 January 2019 to refuse to grant the visa applicant a Parent (Migrant) (Class AX) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 9 February 2009. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.103.224(a) 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 delegate refused to grant the visa on 4 January 2019 on the basis that cl.103.224 of Schedule 2 to the Migration Regulations 1994 (the Regulations) was not satisfied because the health criteria in public interest criterion (PIC) 4005 of Schedule 4 to the Regulations was not met.

4. The review applicant who is the daughter and sponsor appeared before the Tribunal on 18 April 2019 to give evidence and present arguments. The Tribunal also received oral evidence from applicant’s son-in-law.  

5. The review 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.

   Background

7. The visa applicant is a 65 year-old [female] national of Indonesia who currently lives on her own in Indonesia without family support.

8. On 9 February 2009 the visa applicant applied for a Parent (Class AX) parent (Subclass 103) visa.

9. On 3 November 2017 the Department requested the visa applicant to undertake a medical assessment to satisfy PIC 4005.

10. On 30 January 2018 the Department sent the visa applicant a Natural Justice letter in response to the Medcial Officer of the Commonwealth (MOC) determination on 11 December 2017 that the visa applicant did not meet the health requirement.

11. On 12 February 2018 the Department received from the visa applicant a response to the Natural Justice letter; however this information did not provide any new medical information relevant to the MOC determination under PIC 4005.

12. On 20 April 2018 the Department received the applicant’s documents from [a clinic] and results of exams performed in 2012 including a written summary letter whose date was unable to be determined. The body of an email forwarded to the Department by the visa applicant’s daughter states that they have exhausted all medical avenues to improve her mother’s [medical condition] and nothing more can be done and the damage is permanent.

    RELEVANT LAW

13. The visa applicant has been considered against the following time of decision criterion.

    Clause 103.224

    The applicant:

    (a)satisfies public interest criteria 4001, 4002, 4003,4004,4005, 4009, 4010; and

    (b)if the applicant had turned 18 at the time of application, satisfies public interest criterion 4019.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. 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. PIC 4005, as it applies to this case, is extracted in the attachment to this decision. It requires the visa applicant, in certain circumstances, to undergo medical assessment, and to be free of certain diseases or conditions that may impact on the community. The visa applicant in this case has [a medical condition] and on that basis the delegate was not satisfied she met PIC 4005(1)(c)(ii)(A).

15. On 11 December 2017 the MOC determined that the visa applicant did not meet the health requirement. On 12 February 2018 the Department received from the visa applicant a response to the Natural Justice letter; however this information did not provide any new medical information relevant to the MOC determination under PIC 4005.

16. On 19 March 2019 the review applicant requested a further opinion from the MOC in regard to the visa applicant. On the 22 March 2019 the request was forwarded to the MOC from the Tribunal with all the relevant documentation in relation to the application.

17. On 25 March 2019 the MOC maintained their decision that the visa applicant did not satisfy PIC 4005(1)(c)(ii)(A) in Schedule 4 to the Regulations for the period of a permanent stay in Australia.

18. The review applicant appeared before the Tribunal and stated that she will be responsible for the visa applicant when she comes to Australia and will take care of her medical bills if required. The review applicant further stated that the visa applicant’s health is excellent with the exception of her [certain body part] which is incurable. She further stated that the visa applicant is currently living on her own in Indonesia and cares for herself and is independent and there would be no financial burden to the Australian Government. The review applicant gave evidence that the visa applicant does not have any family support in Indonesia although other family members live in Indonesia. The review applicant said that when her mother comes to Australia she will live with her family initially and when independent enough she will find her own accommodation. The Tribunal accepts that the review applicant and her family are prepared to meet the visa applicant’s medical costs and believe she is capable of caring for herself and living independently.

19. The review applicant at the Tribunal hearing provided a letter of support from [Organisation 1] date 17 April 2019 in regard to the visa applicant’s medical condition (T/F folio’s 58 to 61). The Tribunal considered the submission from [Organisation 1] additional information that should be considered by the MOC as to whether it would alter the MOC’s opinion dated 25 March 2019. The Tribunal granted the review applicant further time (14 days) to provide any additional information relevant to the visa application to be considered by the MOC.

20. On 30 April 2019 the review applicant’s agent provided a submission stating that the visa applicant is capable of living independently and since [having the medical condition] she has raised two children as a single parent in Indonesia. He further states that since [having the medical condition] in 1985 she has managed to live alone and apart from her children for several years. The agent also states that the visa applicant like many Australians who live with the same condition the applicant has, she would be able to live in Australia without any physical, psychological or medical support from the Australian community. The agent submits the MOC opinion is incorrect and the visa applicant does not require residential care services as she is capable of living independently or she could live with her daughter and as such the provision of heath care/community services would not likely result in significant cost to the Australian community in the areas of healthcare and/or community services. The agent further submits that a hypothetical person living in Australia with the same condition as the applicant is a person living independently and a person not requiring residential care services and subsequently the visa applicant meets PIC 4005. Based on the information provided the Tribunal accepts that the review applicant is prepared to meet all the medical costs of the visa applicant and there are people with the same condition in Australia who can live independently and not require residential care services.

21. On 7 May 2019 the Tribunal forwarded all the relevant documents to the MOC and requested the MOC to respond to the additional information provided by the review applicant in relation to the visa applicant’s medical condition.

22. On 10 May 2019 the MOC after considering the additional documents and information provided by the review applicant maintained their decision that the visa applicant did not satisfy PIC 4005(1)(c)(ii)(A) in Schedule 4 to the Regulations for the period of a permanent stay in Australia. The MOC further states that the submission by [Organisation 1]’s point (especially) [does] not automatically imply a need for community support services is acknowledged. In this case, however the best objective evidence available (from the Panel Physician assessment in 2017) is that the visa applicant [would] not be able to live independently. The hypothetical person with this level of need would be expected to require community support. 

23. On 15 May 2019 the Tribunal wrote to the applicant asking them to respond to the adverse information contained in the MOC opinion dated 10 May 2019. The visa applicant’s migration agent responded on 29 May 2019. The agent submits that the opinion of the MOC dated 10 May 2019 is unreasonable as it lacks evident and intelligible justification when all the evidence demonstrates that the visa applicant does not need community care services as she is able to live independently with her condition. The agent further submits that no reasonable MOC could form the opinion that the visa applicant requires community care services. Therefore, the applicant does meet the health requirement PIC 4005 and should be granted her visa. The Tribunal accepts that there may be cases where people with the same condition as the visa applicant can live independently.

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

24. 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.

25. 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).

26. As the visa applicant in this case has applied for a permanent visa, the exclusion provision in PIC 4005(3) does not apply and the visa applicant in this case must satisfy PIC 4005(1)(c)(ii)(A).

27. 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 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 an MOC is required, the Tribunal must take it be correct: r.2.25A(3).

    Is an MOC opinion required?

28. On the evidence before the Tribunal, an 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 criteria 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.

29. The Tribunal notes that there have been three MOC opinions dated 11 December 2017, 25 March 2019 and 10 May 2019 all coming to the same conclusion that the visa applicant does not meet PIC 4005.

30. The MOC opinion dated 10 May 2019 indicates that the visa applicant is a 65 year-old person who has [a specified medical condition]. She requires supervision, assistance with some daily activities and would not be expected to be able to live independently. Provision of these services to a hypothetical person in Australia with the same condition as the visa applicant, at the same severity, would likely require community support services. This condition is likely to be permanent. The MOC opinion states that a hypothetical person with the same condition and severity as the visa applicant would be likely to require long term specialist health care services including community care services and the provision of these health care and/or community services would be likely to result in significant cost to the Australian community in the areas of health care and/or community services. 

31. Specifically, the Tribunal is satisfied that the MOC opinion identified the visa applicant’s condition to which PIC 4005 have been applied, ascertained the form or level of condition suffered by her and applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the conditions. Accordingly the Tribunal is satisfied the MOC opinion is valid.

    PIC 4005

32. Clause 103.22 requires the applicant to satisfy primary criteria. Criteria include the specified public interest criteria, one of which is PIC 4005, the health criterion. The applicant does not meet the prescribed health requirements outlined in PIC 4005. Therefore, the applicant does not satisfy cl.103.224(a) of the Regulations.

    FINDINGS

33. The Tribunal is bound to accept the final assessment of the MOC to be correct for the purposes of deciding whether the applicant satisfies the relevant health condition. Accordingly, based on the opinion of the MOC, the applicant does not satisfy the health requirements outlined in PIC 4005. It follows that the applicant does not satisfy cl.103.224 on the date the decision was made.

    DECISION

34. The Tribunal affirms the decision not to grant the visa applicant Parent (Migrant) (Class AX) visa.

    Russell Matheson
    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).