Issa (Migration)

[2021] AATA 50

Issa (Migration) [2021] AATA 50 (13 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Salah Andrea Issa
Mrs Sabah Issa

CASE NUMBER:  1922384

HOME AFFAIRS REFERENCE(S):          CLF2016/44163

MEMBER:Helen Kroger

DATE:13 January 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 13 January 2021 at 8:57am

CATCHWORDS
MIGRATION – Contributory Aged Parent (Temporary) (Class UU) visa – Subclass 884 (Contributory Aged Parent (Temporary)) – medical criteria – disease or condition – chronic kidney disease and other conditions likely to progress – opinion of medical officer of commonwealth – evidence of alternative treatments – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.25A, Schedule 2, cls 884.224, 884.226, Schedule 4, criterion 4005(1)(c)(ii)

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 29 July 2019 to refuse to grant the applicants Contributory Aged Parent (Temporary) (Class UU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 25 July 2016. The delegate refused to grant the visa on the basis that the first named applicant (now referred to as the applicant) did not satisfy clause 844.2, clause 884.224 and clause 884.226 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 primary and secondary applicants appeared before the Tribunal via teleconference, and in accordance with the Act, on 17 December 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the primary applicant’s son Mr Issa. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

4. The applicants were represented in relation to the review by their registered migration agent and provided a copy of the delegate’s Decision record to the Tribunal for the purpose of the review.

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 applicant meets Public Interest Criterion (PIC) 4005 as required for the grant of the visa. Public Interest Criterion 4005, 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.

   Relevantly to this case, is the applicant free from the relevant diseases or conditions (PIC 4005(1)(c))?

7. 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).

8. 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 be correct: r.2.25A(3) so long as it has been validly made.

   Is a MOC opinion required?

9. A mandatory requirement for subclass 884 (Contributory Aged Parent – (Temporary) visa) is that the main applicant and all members of the family unit, whether they migrate with the main applicant or not, must meet Public Interest Criterion (PIC) 4005 which is also known as the health requirement.

10. It follows that a MOC opinion is required.

11. 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. On the 15 May 2019 a Form 884 was received from the MOC. On the 17 June 2019 the Department advised the primary applicant and provided him with an opportunity to submit further information, including medical information. On the 17 December 2019, the primary applicant requested a second MOC and a second Form 884 was received from the MOC on 14 January 2020 and in this report, the MOC concluded that the primary applicant did not meet PIC 4005(1)(c)(ii)(A) and PIC 4005 (1)(c)(ii)(B).

13. The 14 January 2020 MOC stated (in part) as follows: “The applicant is an 84 year old person with severe chronic renal disease…the applicant has severe chronic kidney disease in the context of hypertension, diabetes and prostatic enlargement. Although the prospect of dialysis is not imminent, it is likely that the condition would progress to the extent that some form of dialysis would be required during the proposed period of stay. Provision of services to a hypothetical person in Australia with the same condition as the applicant and at the same severity : 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…..I consider that a hypothetical person with this disease or condition, at the same severity as the applicant, would be likely to require health care or community services during the period specified above.”

14. The applicants, through their migration agent, indicated to the Tribunal at the hearing that the relevant MOC, dated 14 January 2020 was invalid as the assessment against PIC 4005 was made for a period of a permanent stay in Australia and not a temporary stay.

15. The Tribunal is satisfied that the MOC opinion dated 14 January 2020 is valid, in that it identifies the medical condition to which the Public Interest Criterion has been applied consistent with the requirements under law specific in clause 844.2 (as discussed above). Further, the MOC opinion 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 MOC has applied the correct test and is bound to accept the medical opinion to be correct.

    Other considerations

16. Both the migration agent and witness, Dr Issa, the applicants’ son, provided evidence to the Tribunal, with respect to the level of medical care provided to the primary applicant, and told the Tribunal that any extended care for the period of time for a temporary visa, would be provided for in the home. A written submission authored by Dr David Langsford, a specialist nephrologist at Northern Health, dated 25 August 2020, provides a brief overview of the Primary applicant’s medical condition along with a description of alternate renal therapies, including haemodialyis that can be provided in the home. In this statement, Dr Langsford submits “that renal replacement therapy can be done in a manner which does not cause disadvantage to other members of the Australian community.” This Doctor’s report speaks to medical treatment that could potentially be provided in the home and accordingly, would not disadvantage other members of the community.

    FINDINGS

17. Given all the above, and based on the validly made opinion of the MOC, dated 20 January 2020, the applicants do not satisfy public interest criterion 4005(1)(c).

18. As the primary applicant has not satisfied the requirements of PIC 4005, the Tribunal must affirm the decisions under review. It follows that as the primary applicant does not satisfy the criterion, and that the secondary applicant does not satisfy the relevant requirements as detailed above.  

19. The Tribunal affirms the decisions not to grant the applicants Contributory Aged Parent (Temporary) (Class UU) visas.

    Helen Kroger
    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.