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

CATCHWORDS

MIGRATION ­– Child (Residence) (Class AH) visa – subclass 101 (Child) visa – applicant does not satisfy PIC 4007(1)(c) – applicant not meeting the health criteria – little evidence to show sponsor has any capacity to offset the medical cost – decision under review affirmed

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

1. 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).

2. 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).

3. 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.

4. 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.

5. 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.

6. The sponsor was represented in relation to the review by her registered migration agent.

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

   Relevant law

8. 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.

9. 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.

10. 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.

11. 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))?

12. 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.

13. 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.

14. The MOC estimated the total cost to the Australian community to be $763,610 and stated that the grant of the visa would not be likely to prejudice the access of an Australian citizen or permanent resident to health care or community services. The sponsor has not raised any concerns about the validity of the opinion and the Tribunal is satisfied the opinion is a valid opinion.

15. Having regard to that opinion, the Tribunal finds that the visa applicant does not satisfy PIC 4007(1)(c).

    Should the requirements of PIC 4007(1)(c) be waived?

16. The requirement in PIC 4007(1)(c) to be free of a disease or condition that would impact on health or community services, may be waived if among other things, the decision maker is satisfied that the granting of the visa would be unlikely to result in either ‘undue cost’ to the Australian community or ‘undue prejudice’ to the access to health care or community services of an Australian citizen or permanent resident: PIC 4007(2).

17. The evaluative judgment of whether the cost to the Australian community or prejudice to others is ‘undue’ may import considerations of compassionate or other circumstances: Bui v MIMA (1999) 85 FCR 134 (‘Bui’) at 47. Over and above the consideration of the likelihood that cost or prejudice will be ‘undue’ there is also the discretionary element of the ministerial waiver. And within that discretion, compassionate circumstances or compelling circumstances may be relevant: Bui at 47. Departmental policy guidance on the exercise of this discretion is contained in the Procedural Instruction. Broadly speaking, these relate to family links in Australia and the impact on family members; occupational skills of the applicant or family members; assets or factors that may mitigate the costs or prejudice to access to care or services involved; available support from family or community groups; potential contribution to Australia by the applicant or family members; the immigration history of the applicant; other compelling and compassionate circumstances including location of the applicant and family members; and any other relevant factors.

18. [Details deleted].

19. In February 2015, the sponsor lodged a partner visa application for her husband, and included the visa applicant as a dependent. However her husband passed away in February 2016 before the application was finalised, and the applicant’s visa was subsequently refused. Until that time the visa applicant was living with his father in Egypt. The sponsor gave evidence that the visa applicant is living on his own in Egypt and receives his father’s pension.

20. Whilst the visa applicant has been assessed as unable to work, there is no indication that he requires assistance with any activities of daily living, and little evidence has been provided which indicates there is any impediment to him continuing to reside in Egypt. The sponsor’s sister provided evidence that she had visited the visa applicant in Egypt in 2017 and he had booked himself a summer holiday at a resort in Hurghada near the Red Sea and he seemed pretty normal at the time.

21. The sponsor’s sister provided evidence at the hearing the visa applicant is engaged in a legal battle to remain living in his rental apartment and he has appealed a decision to have him removed. The Tribunal accepts that the applicant is engaged in legal proceedings to remain at his current address. There is no evidence before the Tribunal that the applicant is unable to rent another apartment utilising the pension he receives if removed from his current residence.  

    Whether the applicant or family members have occupational skills in high demand

22. The sponsor gave evidence that she is studying English in Australia in order to improve her prospects of employment.  The visa applicant has been able to complete his bachelor degree at university despite his mental health issues. The Tribunal notes the claim that the visa applicant would like to further his studies in Australia, and that with continued treatment and support from the sponsor he would possibly pursue a long-term career. The Tribunal accepts that the visa applicant has obtained his bachelor’s degree and he would like to continuing study and with that support he could pursue a long-term career.

23. The sponsor gave evidence that it is not easy for the visa applicant to find a job because of his mental health issues. The sponsor told the Tribunal that the visa applicant has previously worked part time in a coffee shop and worked with people with disabilities. She further stated that when working at the coffee shop the visa applicant became annoyed because he was given jobs that he didn’t like and other employees spoke about religion which upset him. The sponsor stated that her sister-in-law owns a fitness centre and has offered the applicant a job. The sponsor provided correspondence from her sister-in-law stating that she will provide the visa applicant with employment upon his arrival in Australia at the gym. The Tribunal accepts that the visa applicant has been offered employment in Australia. Based on the information provided the visa applicant has been unable to successfully work in Egypt because he was given jobs he didn’t like and other employees spoke about religion which upset him. The Tribunal notes the visa applicant has lived with both parents in Egypt until May 2013, and his father until 2016, and despite adequate medical treatment and the support of his parents was unable to successfully work and he would likely face significant difficulties doing so in Australia even if he was offered work here.  

24. There is no evidence that the visa applicant or other working family members have occupational skills in high demand. 

    Whether the applicant and/or other family members have substantial assets or an ability to mitigate the costs/prejudice to access involved - for example, due to private care arrangements and/or support being available

25. The sponsor gave evidence that she is a mother who needs her son and her son needs her, and she is all alone in Australia. She further stated that the Australian government will not have to pay any expenses for medication or treatment for the visa applicant. There is evidence before the Tribunal that the sponsor has ties to Australia through her sister and other extended family members, and there is little evidence that these family members are prepared to, or have the financial capacity to provide assistance to the visa applicant. The Tribunal finds these claims unpersuasive. As a permanent resident, the visa applicant is likely to be entitled to a pension and may be entitled to various forms of support, which will result in the cost to the community. The MOC estimated the cost to be $763,610 and the Tribunal is not convinced that this estimate is incorrect. The Tribunal places no weight on the sponsor’s undertaking not to rely on government support because the visa applicant will be entitled to such support if he is a permanent resident.

26. The sponsor has never worked or paid taxes in Australia. It appears unlikely that she will work in the future, and she is reliant on Centrelink payments. The sponsor has no assets or savings, and is likely to have little to no capacity to financially support her son. The MOC has indicated that the visa applicant will require long-term income support in the form of supplements and pensions. Based on the evidence before the Tribunal it is likely the sponsor and visa applicant would need to access all financial assistance available to them, and it appears likely that the majority of the costs identified would be realised if the visa was granted. 

27. The Tribunal finds that the family does not have substantial assets or ability to mitigate the costs involved.   

    [Heading deleted]

28. [Details deleted]. The Tribunal notes that the visa applicant has extended family in close proximity to where he resides and socialises with them regularly. The sponsor’s niece gave evidence at the hearing that the visa applicant’s extended family in Egypt support him socially but not financially. The sponsor’s sister gave evidence to the Tribunal that the applicant does not receive financial support from family members in Egypt but does receive some financial support from her son in Australia and from his brother living in Kuwait.

    Whether the applicant has significant family links in Australia.

29. The visa applicant has significant family links in Australia. He has the sponsor (mother), his aunt and extended family. The Tribunal accepts that his family ties in Australia are greater than his ties in Egypt.

    Significant support from family or community groups

30. The visa applicant has close family ties in Australia. The Tribunal accepts the visa applicant’s family in Australia will support him. There is little evidence of any support from community groups. The visa applicant has never entered Australia, and there is no evidence before the Tribunal that he has any close social or community ties.

    The potential contribution of the visa applicant and their family to Australia including skills, qualifications, English language ability and employment prospects that may assist the applicant once in Australia

31. The Tribunal accepts that the visa applicant has been offered a job by the sponsor’s sister in Australia, but there is little evidence to indicate that the visa applicant or family have the skills, qualifications or employment prospects that could contribute to Australia. The Tribunal accepts that the visa applicant has graduated from university with a bachelor degree but he has not been able to successfully work in Egypt.

    Any other compelling or compassionate factors including the location and circumstances of the applicant and/or sponsor’s family members

32. The sponsor has provided evidence that she has fears for the safety of the visa applicant in Egypt because he has been living by himself since the death of his father and he needs a carer such as his mother to feel safe. [Details deleted]. She further states that that the visa applicant has no support from family members in Egypt because they are busy with their own lives. The sponsor’s evidence to the Tribunal is that the visa applicant has extended family in Australia and if he comes to Australia he will be in a good environment and happy.

33. [Details deleted].  The Tribunal accepts that the visa applicant’s extended family in Australia will provide care and support to him and he will be in a better environment in Australia. Based on the evidence provided at the hearing by sponsor’s sister and niece, the visa applicant is able to move freely within the community socialising with his extended family and travel to places such as Hurghada near the Red Sea in Egypt. There is little evidence before the Tribunal that the visa applicant has fears for his own safety. The Tribunal accepts the sponsor as a mother has some personal fear for the applicant’s safety in Egypt. There is no evidence before the Tribunal that indicates he requires any assistance with any activities of daily living or that he is being persecuted in any way. The Tribunal places little weight on the sponsors’ claims in regards to the visa applicant’s wellbeing and safety.

34. The visa applicant’s previous agent submitted to the Department the cost of the applicant migrating to Australia to the Australian community provided by Bupa Medical Services is grossly exaggerated, as it does not take into account any improvement in the visa applicant’s condition or the likelihood of him being able to work and function independently in the future. The sponsor provided correspondence (TF Folio 50) from the visa applicant’s mental health consultant stating that the visa applicant suffers from panic attacks and depression and he follows periodic sessions at the centre with some medicines, and his condition worsens because he lives alone without care since the death of his father. He further states that the visa applicant is advised to live with his mother; he is in need of his mother and her care and moral support, which will reduce the severity and number of attacks with periodic follow up; his current medicines will accelerate his recovery and enable him to live his life naturally in a short period of time. He also states that the visa applicant’s current situation and living alone will make his condition worse.  The Tribunal accepts that it would be beneficial for the visa applicant’s health living in a better environment in Australia with the support of the sponsor. There is no evidence before the Tribunal to indicate that the costs identified in the MOC opinion are exaggerated.

35. The Tribunal has considered the entirety of the sponsor and visa applicant’s circumstances. The Tribunal accepts that the visa applicant has strong family ties in Australia and that he is likely to get family and community support in Australia. The Tribunal accepts that the sponsor wants to be reunited with the visa applicant. The Tribunal accepts that the sponsor is willing to provide the support and care required but there is little evidence before the Tribunal that she has any capacity to offset the cost in any meaningful way.

1. Against these considerations, the Tribunal notes that the cost to the Australian community identified by the MOC is high and the Tribunal is not satisfied that the family have the capacity to offset the cost in any meaningful way. The Tribunal is not satisfied that the family have the skills in high demand or the skills and qualifications and employment prospects that could contribute to Australia. The Tribunal accepts that the sponsor is unable to relocate to Egypt due to fears for her safety. Tribunal is not satisfied the health of the visa applicant would be adversely affected as a result. In particular, the Tribunal is not satisfied the visa applicant would be denied access to healthcare because he is currently receiving adequate care required to assist him control his mental health issues. The Tribunal accepts that the visa applicant would receive substantial family support in Australia but notes that he also has extended family living in close proximity to him in Egypt to call on for support. There is no evidence before the Tribunal that indicates he requires any assistance with any activities of daily living or that he has fears for his safety in Egypt.

2. For these reasons, the Tribunal is not satisfied that the granting of the visa would be unlikely to result in undue cost or undue prejudice within the terms of PIC4007(2)(b). Therefore PIC 4007(1)(c) cannot be waived.

   Conclusion

3. As the visa applicant has not satisfied the requirements of PIC 4007, the decision under review must be affirmed.

   DECISION

4. The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

   Russell Matheson
   Member