Huda (Migration)

[2021] AATA 975

Huda (Migration) [2021] AATA 975 (3 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Shahnaz Chowdhury Huda

CASE NUMBER:  1936375

HOME AFFAIRS REFERENCE(S):          CLF2016/36501

MEMBER:Adrienne Millbank

DATE:3 March 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant an Aged Parent (Residence) (Class BP) visa.

Statement made on 03 March 2021 at 4:43pm

CATCHWORDS

MIGRATION – Aged Parent (Residence) (Class BP) visa – Subclass 804 (Aged Parent) – health criteria – health examination – Medical Officer of the Commonwealth opinion – request for Ministerial intervention – balance of family residing in Australia – applicant unfit for an international flight – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 65, 351
Migration Regulations 1994, Schedule 2, cl 804.225; Schedule 4 Public Interest Criterion 4005; r 2.25

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 a decision made by a delegate of the Minister for Home Affairs on 11 December 2019 to refuse to grant the applicant an Aged Parent (Residence) (Class BP) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant is a 73-year-old citizen of Bangladesh. At the time of decision, she is residing in Queensland, with her Australian citizen daughter, her sponsor.

3. The applicant applied for the visa on 16 June 2016. 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). The health criteria in public interest criterion (‘PIC’) 4005 of Schedule 4 to the Regulations – specifically, PIC 4005(1)(c)(ii)(A) and PIC 4005(1)(c)(ii)(B) – were not met.

4. A MOC opinion dated 14 November 2018 was that the applicant did not meet the health requirement. The opinion, set out in Form 884, was that the applicant, then 71 years of age, had ‘severe and chronic renal disease associated with membranous nephropathy and on a background of hypertension and diabetes requiring haemodialysis’. It considered the provision of services to a hypothetical person in Australia with the same conditions as the applicant and at the same severity. It concluded the applicant would be likely to require health care or community services, ‘including medical services, dialysis’ likely to result in a significant cost to the Australian community, and to prejudice the access of an Australian citizen or permanent resident to health care or community services.

5. The delegate’s decision records that on 3 April 2019 the applicant was invited to comment on the MOC opinion, but no additional information was provided.

6. The applicant appeared before the Tribunal on 16 February 2021, by MS Teams video, to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages. The applicant advised the Tribunal that she wanted her daughter and sponsor to speak on her behalf. The Tribunal agreed to this request, on the basis of the applicant’s vulnerability due to her illness.

7. The applicant was represented in relation to the review by her registered migration agent. The representative sought, at hearing, and was granted time to provide a post‑hearing submission. This was received by the Tribunal on 24 February 2021.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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. The MOC opinion dated November 2018 that informed the delegate’s decision was that the applicant: ‘has severe chronic kidney disease associated with membranous nephropathy and on a background of hypertension and diabetes requiring haemodialysis’, and that this condition may impact on the community.

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

10. Public interest criterion 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.

11. 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 services are excluded from this consideration: PIC 4005(3). As the applicant in this case has applied for a permanent visa, the exclusion provision in PIC 4005(3) does not apply.

12. 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. Where an opinion of a MOC is required, the Tribunal must take it to be correct: r.2.25A(3).

    Is a MOC opinion required?

13. On the evidence before the Tribunal, a MOC opinion was required. The application is, as noted, for a permanent visa, and the applicant is from a country specified in the Ministerial Instrument.

14. On 7 September 2020 the Tribunal invited the parties to obtain an updated MOC opinion, and they agreed. This second MOC opinion, dated 30 October 2020, was received by the Tribunal on 2 November 2020. It is that the applicant does not meet the health requirement.

15. 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.

16. The second MOC opinion was provided by Bupa Medical Visa Services, and assessed the applicant against PIC 4005 for the period of a permanent stay in Australia. The opinion, in Form 884, found that the applicant did not satisfy sub-subparagraphs PIC 4005(1)(c)(ii)(A) and PIC 4005(1)(c)(ii)(b). It found that the applicant:

    Has moderate functional impairment due to the combined effect of multiple medical problems, including diabetes, osteoporosis and aging, which limits her mobility and capacity for self-care. She requires significant assistance with activities of daily living. … A hypothetical person in Australia with the same condition as the applicant, at the same severity, would be likely to require community services, including but not limited to aged care services. This condition is likely to be Permanent.

    The applicant has severed chronic kidney disease associated with membranous nephropathy and severe renal failure with a past history including hypertension and diabetes, and requires ongoing regular dialysis … A hypothetical person in Australia with the same condition as the applicant, at the same severity, would be likely to require long term specialist health care services, including but not limited to renal replacement services … Provision of health care services to the hypothetical person in the circumstances defined above would also be likely to result in a significant prejudice to access to the Australian community in the area of health care. This is because dialysis, based on advice from the Department of Health, is currently a service in short supply; that is, there are already insufficient resources available to meet current national demand … This condition is likely to be Permanent.

17. The MOC opinion was that a hypothetical person with the disease or condition of the applicant, at the same severity of the applicant, would be likely to require health care or community services permanently, and that these services would include medical services; Commonwealth disability services; and dialysis. The opinion was also that provision of these health care and/or community services would be likely to result in a significant cost to the Australian community in the areas of health care and/or community services, and prejudice the access of an Australian citizen or permanent resident to health care or community services.

18. The Tribunal is satisfied that the period of the second MOC assessments covers the period commencing from when the application was made. In preparing the opinion, the MOC had regard to the information available to date concerning the applicant, including an earlier report from Dr Karen Herzig, the applicant’s nephrologist, dated 6 November 2018 (which confirmed ‘ongoing requirement for dialysis and the applicant’s current need for supported care’); the report of the examination conducted by the Panel Member on 8 November 2018; and a new report from Dr Herzig, dated 17 September 2020.

19. In her ‘Statement of Medical Care’ dated 17 September 2020, provided to the Tribunal, Dr Herzig advises that she has known the applicant since 2012; that the applicant presented with progressive renal failure subsequently confirmed to be secondary to ‘membranous glomerulonephritis’; and that the applicant has been on ‘maintenance haemodialysis’ since November 2013 and attends Greenslopes Hospital Renal Unit for four hours of treatment, three days per week. Dr Herzig further advises:

    Over this time [the applicant] has become more frail. She does not speak much English. Her mobility is limited by her renal condition, weakness post dialysis and severe osteoarthritis. She has cognitive impairment and some nocturnal confusion. Her appetite is poor. She has Type II diabetes requiring regular monitoring of her diet and blood sugar levels.

    She requires full time supervision and some assistance with her activities of daily living. This care is provided by her family. She requires a wheelchair for any significant distance, but is able to walk a few meters if assisted.

    [The applicant] is not fit enough nor mobile enough to undertake an international flight. All of her medical care is currently fully funded by her family and medications are all prescribed on private prescription as she is not registered for Medicare.

20. The Tribunal is satisfied that the second MOC opinion is valid. On the evidence provided, the second MOC identified the medical condition to which the PIC has been applied, and the form or level of the condition, for the period commencing when the application was made. Further, it applied the statutory criteria by reference to a hypothetical person who suffers from those forms or levels of the conditions.

21. Based on the opinion of the MOC, the applicant does not satisfy public interest criterion 4005(1)(c).

22. At hearing, the sponsor confirmed that she had read and understood the MOC opinions. She queried, based on her observation of empty beds during the applicant’s dialysis at Greenslopes, the extent to which her dialysis would in fact deprive Australian citizens and permanent residents. The sponsor posited, as a taxpayer, that more hospital and health services are needed for people in regional areas, where she intends to live in the future. She acknowledged that the applicant suffers illnesses other than kidney failure, but argued she was receiving only minimal treatment for these illnesses. The sponsor stated that the extent of the applicant’s kidney failure was such that she could not tolerate strong drugs, and was taking only two medications: one for blood pressure, and the other an antidepressant/relaxant to help her sleep at night.

23. The sponsor subsequently stated that she accepted that, her reservations regarding the extent of the applicant’s use of health services notwithstanding, the applicant does not meet the health requirement for the visa. She stated that, given the MOC opinions and the terminal nature of the applicant’s illness, the parties were now seeking only an extension of stay, which could be on temporary and bridging visas.

24. The representative submitted that in the applicant’s case, there are grounds for Ministerial intervention. The sponsor described how she has cared for her mother since her mother’s divorce in 1994; how her mother has no children to care for her in Bangladesh; how her brother who also lives in Australia provides only limited help, driving the applicant to health appointments; and how the applicant had a carer in Bangladesh, a cousin who lived with her, however that cousin is now also residing in Australia, having been granted a protection visa.

25. The sponsor stated that she has paid all her mother’s health expenses in Australia, and claimed she would continue to pay them in the future. She claimed her mother is too unwell to travel alone, and she would have to accompany her. She then stated that she could not return to Bangladesh to care for her mother because she has three school-age children here in Australia. She stated that the cousin who used to care for the applicant in Bangladesh helps care for the applicant in Australia, but cannot, as the holder of a protection visa, return to Bangladesh to care for the applicant. She stated that for religious and cultural reasons, it is, in any event, not safe for women to live alone, or in pairs, in Bangladesh.

26. Following the hearing, as noted on 24 February 2021, the Tribunal received a further statement from Dr Herzig, the applicant’s nephrologist, dated 9 February 2021. Dr Herzig stated that the applicant ‘is not fit enough nor mobile enough to undertake an international flight’. She further stated that the COVID-19 pandemic is a major concern for the applicant because ‘she is relatively immunosuppressed, frail and elderly’. A receipt for a Medibank bill of $1,119.50, paid on 4 January 2021, was provided. In a further written submission, dated 24 February 2021, the representative repeated claims previously put: that all of the applicant’s medical care is currently fully funded by her family and medications are all prescribed on private prescription as she is not registered for Medicare; that there are compelling and compassionate circumstances because of the applicant’s circumstances as a widow alone in Bangladesh and the sponsor’s circumstances as a single mother in Australia; and that, should the Tribunal consider it is bound by the MOC opinion, the Tribunal should refer the case to the Minister.

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

28. The Tribunal accepts that there are compassionate circumstances arising from the applicant’s age and health, but has decided not to refer the case for consideration for the Minister to exercise his powers under s.351 to substitute a decision that is more favourable to the applicant. The Tribunal notes that there is a visa pathway open to the applicant through the lodgement of an application for a Medical Treatment visa. The Tribunal further notes that the applicant may make a request directly to the Minister.

    DECISION

29. The Tribunal affirms the decision not to grant the applicant an Aged Parent (Residence) (Class BP) visa.

    Adrienne Millbank
    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.