Issa (Migration) - [2019] AATA 2048

Issa (Migration) [2019] AATA 2048 (26 February 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mrs Violet Azaz Megala Issa
VISA APPLICANT:  Mr Fady Emad Nagieb Eskander
CASE NUMBER:  1708791
HOME AFFAIRS REFERENCE(S):           OSF2016030268
MEMBER:Russell Matheson
DATE:26 February 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 26 February 2019 at 8:54am

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 2.25A, Schedule 2, cl 101.223, Schedule 4, Public Interest Criterion (PIC) 4007

CASES
Bui v MIMA (1999) 85 FCR 134
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 12 March 2017 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant is a national of Egypt, born 25 August 1981. The visa applicant applied for the visa on 15 March 2016. At the time of application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have only been made in respect of Subclass 101 (Child).
The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.101.223.
The delegate refused to grant the visa on the basis that cl.101.223 was not met because the health criterion in Public Interest Criterion (PIC) 4007 of Schedule 4 to the Regulations was not met. The review applicant (sponsor) seeks review of the delegate’s decision.
The sponsor appeared before the Tribunal on 1 June 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Amal Labib (sister) and Ms Monica Labib (niece) of the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
The sponsor was represented in relation to the review by her registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Relevant law
The issue in this review is whether the visa applicant meets PIC 4007 as required by the criteria for the grant of the visa. PIC 4007, 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. This last requirement may be waived in certain circumstances.
PIC 4007(1)(c) requires the applicant be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] AATA 2048
Decision Date: 26 February 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision concerning an application for a Child (Residence) (Class AH) visa, subclass 101. The applicant sought to challenge the finding that they did not satisfy Public Interest Criterion (PIC) 4007(1)(c), which relates to meeting health criteria.

The central legal issue before the Tribunal was whether the applicant met PIC 4007(1)(c) of the Migration Regulations 1994. This criterion requires an applicant to be free from a disease or condition that would likely necessitate health or community services, and the provision of such services would either result in significant cost to the Australian community or prejudice access to services for Australian citizens or permanent residents. The Tribunal was also required to consider the role of a Medical Officer of the Commonwealth (MOC) opinion in determining this criterion.

The Tribunal reasoned that for permanent visa applications, the exemption provisions for certain temporary visas under PIC 4007(1B) did not apply. In accordance with regulation 2.25A, the Tribunal must seek and take as correct the opinion of a MOC, provided the MOC has applied the correct statutory test. The MOC had assessed the applicant as having mild recurrent depressive disorder with mild functional impairment, noting that a hypothetical person with the same condition and severity would likely require long-term community support services, resulting in significant cost to the Australian community. The Tribunal found this opinion to be current and reliable, and that it correctly applied the statutory criteria.

Consequently, the Tribunal affirmed the decision under review, concluding that the applicant did not meet the health criteria as required for the grant of the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Relevant law The issue in this review is whether the visa applicant meets PIC 4007 as required by the criteria for the grant of the visa. PIC 4007, 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. This last requirement may be waived in certain circumstances. PIC 4007(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 4007(1B). The requirement may also be waived in certain circumstances. As the applicant in this case has applied for a permanent visa, the exemption provision in PIC 4007(1B) does not apply. In determining whether a person meets PIC 4007(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 to be correct: r.2.25A(3).Is the applicant free from the relevant diseases or conditions (PIC 4007(1)(a), (b), (c))? 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. The primary decision indicates that in May 2016 the visa applicant was assessed by the MOC as not meeting the health criteria. The Tribunal considers the opinion is current and can be relied upon at the time of decision. The MOC relevantly stated that the visa applicant is a 34 year old person with mild recurrent depressive disorder:·The applicant has a mild functional impairment due to a mixed anxiety and depressive disorder. This has resulted in no demonstrated paid work capacity since university graduation about 10 years previously despite specialist health care services. 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 likely require long term community support services. The condition is likely to be stable.·The MOC stated that a hypothetical person with this disease or condition, at the same severity as the applicant, would likely require health care or community services during the period specified.·The services would likely include: Commonwealth disability services and state disability services.·Provision of these health care and/or community services would likely result in significant cost to the Australian community in the areas of health care and/or community services.

Ratio Decidendi

Legal Principle Established

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