Jamshaad (Migration)
[2020] AATA 96
•22 January 2020
Jamshaad (Migration) [2020] AATA 96 (22 January 2020)
DECISION RECORD
DIVISION: Migration & Refugee Division
APPLICANT: Master Kayban Moosa Jamshaad
CASE NUMBER: 1836612
DIBP REFERENCE(S): BCC2018/2924850
COUNTRY OF REFERENCE: Maldives
MEMBER:Kate Millar
DATE:22 January 2020
PLACE OF DECISION: Adelaide
DECISION:The Tribunal remits the application for a Temporary Skills Shortage (Class GK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 482 (Temporary Skills Shortage) visa:
·PIC 4007(2)(b) for the purposes of cl.482.317 of Schedule 2 to the Regulations.
Statement made on 22 January 2020 at 4:44pm
CATCHWORDS
MIGRATION – Temporary Skills Shortage (Class GK) visa – Subclass 482 (Temporary Skills Shortage) – jurisdiction – legislative amendment – relevant provision repealed and replaced – amendment commenced the day application for review of delegate’s decision lodged – amendment applies to decisions made after commencement – previous version of provision applies – not a requirement to be sponsored by approved sponsor at time of application for review – health requirements – young child with cerebral palsy and haemophilia – public interest criterion – disease or condition likely to require health care or community services – significant cost to Australian community – social security benefits and certain subsidies for medication not included in calculation of cost – opinion from Medical Officer of Commonwealth – form and severity of condition – treatment and care – criterion may be waived if granting of visa unlikely to result in undue cost to Australian community – compassionate or compelling circumstances – temporary visa holder not eligible for national or state disability services – family meeting most costs – actual cost to Australian community minimal – decision under review remittedLEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65, 140GB, 337, 338(2)(d)(i),
Migration Regulations 1994 (Cth), r 4.02(1AA), Schedule 2, cls 482.315(a), 482.317, Schedule 4, criterion 4007(1)(c), (2)(b)
Migration and Other Legislation Amending (Enhanced Integrity) Act 2018, Schedule 1, cl 5
CASES
Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182
Bui v MIMA (1999) 85 FCR 134
Kim v Minister for Immigration [2007] FMCA 166
Ramlu v MIMIA [2005] FMCA 1735
Robinson v MIMIA (2005) 148 FCR 182
Sharma v Minister for Immigration [2016] FCCA 1073
1412960 (Migration) [2016] AATA 4193
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
Kayban Jamshaad is three years old. He suffers from cerebral palsy and haemophilia, and the combination of these conditions result in a high level of specialist care needs. Kayban was born in Australia, and is a citizen of the Maldives.
Kayban’s mother, Ms Aishath Shizleen, is a social worker who works for Andersons Neurological and Developmental Services Pty Ltd (Andersons). On 4 August 2018 Ms Shizleen applied with her husband and three children for Temporary Skill Shortage (Class GK) visas on the basis of her employment with Andersons.
On 10 December 2018 a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs granted the visa to Ms Shizleen, her husband and their two older children, but refused Kayban’s application under s.65 of the Migration Act 1958 (the Act). This was because the delegate found that Kayban did not meet the health requirements for the grant of the visa.
An application to the Tribunal to review the decision to refuse to grant Kayban a Temporary Skill Shortage (Class GK) visa was lodged on Kayban’s behalf by Ms Shizleen.
Ms Shizleen, on behalf of Kayban, appeared before the Tribunal on 29 August 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Shizleen’s employer, Ms Ruth Anderson. Kayban was represented in relation to the review by his registered migration agent, and the representative attended the Tribunal hearing.
For the reasons that follow, the Tribunal has decided to set aside the decision under review and remit the matter for reconsideration. In summary, this is because the Tribunal accepts the argument that the actual cost to the Australian community of Kayban’s care is minimal.
JURISDICTION
An initial matter to be determined is whether the Act gives the Tribunal the power to make a decision on this application.
This Tribunal can only review decisions to the extent that the Parliament allows it to do so, and a power to review a decision must be found in an enactment of the Parliament. The Tribunal must identify a power to review the decision before it can look to the substance of the decision. This is not a straightforward decision in this case.
The dates are important to determine the legislation that applies. On 4 August 2018, Kayban applied for the visa. It was refused by a delegate of the Minister on 10 December 2018, and an application for a review of this decision was lodged on Kayban’s behalf on 13 December 2018.
To be reviewed by the Tribunal, the decision must be of a type specified in s.338 of the Act, and in this case, the provision that may apply to Kayban is contained in s.338(2) of the Act.
Subsection 338(2) was amended by the Migration and Other Legislation Amendment (Enhanced Integrity) Act 2018 (the Amending Act). The Schedule to the Amending Act repeals s.338(2)(d) and replaces it. The Amending Act states that changes to s.338(2)(d) commence on the day to be fixed by Proclamation. This date was 13 December 2018. Clause 5 of Schedule 1 to the Amending Act states that the amendments to s.338(2)(d) apply in relation to decisions made after this item commences.
This means that where, as in this case, a delegate of the Minister made a decision before 13 December 2018, jurisdiction in relation to this decision is governed by s.338(2) as it was before that date. The decision of the delegate in relation to Kayban was made on 10 December 2018, and s.338(2) as it was before 13 December 2018 applies to his application to the Tribunal.
Section 338(2) as it was before 13 December 2018 has three requirements. The first two; that the visa could be granted while the non-citizen is in the migration zone, and the non-citizen made the application for the visa while in the migration zone are met by Kayban.
In issue is whether he is required to meet, and if so does meet, the third requirement in s.338(2)(d), which states:
Where it is a criterion for the grant of the visa that the non-citizen is sponsored by an approved sponsor, and the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:
(i)the non-citizen is sponsored by an approved sponsor at the time the application to review the decision to refuse to grant the visa is made; or
(ii)an application for review of a decision not to approve the sponsor has been made, but, at the time the application to review the decision to refuse to grant the visa is made, review of the sponsorship decision is pending.
A subclass 482 visa is a prescribed visa for the purposes of s.338(2)(d) (r.4.02(1A)(ka)). As the sponsorship and nomination were approved, s.338(2)(d)(ii) does not apply.
In deciding if the Tribunal has jurisdiction, it must first decide if it is criterion for the grant of the visa that Kayban is sponsored by an approved sponsor. If this is required, it must then be decided if he was sponsored by an approved sponsor at the time the application to review the decision was made.
Is it a requirement for the grant of the visa that Kayban is sponsored by an approved sponsor?
The first issue is whether it is a requirement for the grant of the visa that Kayban is sponsored by an approved sponsor. Kayban is a secondary applicant for the visa and not the primary applicant.
Under s.337 the term “sponsored” has the same meaning as in the regulations, and r.4.02(1AA) of the Migration Regulations 1994 (the Regulations) states that for s.337, sponsored includes being identified in a nomination under s.140GB of the Act.
The criteria for a Subclass 482 visa are contained in Part 482 of Schedule 2 of the Regulations. Under cl.482.315(a), a requirement for a secondary applicant to be granted the visa is that the applicant is listed on the nomination identified in the primary applicant’s application. This is the subclause that applies to Kayban, and he was in fact listed on the nomination identified in Ms Shizleen’s application.
In Ahmad v Minister for Immigration and Border Protection[1] (Ahmad) the Full Court of the Federal Court held at [98]:
The definition of the word “sponsored” in s 337, which applies to s 338 … picks up the meaning of the word “sponsored” in the regulations. Regulation 4.02(1AA) states that for s 337, sponsored includes being identified in a nomination under s 140GB. It follows that “sponsored by an approved sponsor” in s 338(2)(d)(i) includes not only “approved sponsor” as defined in s 5(1) of the Migration Act (relevantly, a person who has been approved by the Minister under s 140E) but also includes, by virtue of reg 4.02(1AA), being identified in a nomination under s 140GB.
[1] [2015] FCAFC 182.
In Kim v Minister for Immigration[2] (Kim) Ms Kim and her family members were refused visas as the company that sponsored her withdrew her sponsorship. Federal Magistrate Smith found in this case that the requirement in s.338(2)(d) for the primary applicant to be sponsored extended to each of the secondary applicants as the qualification for the visa will depend on the primary applicant meeting a sponsorship criterion.[3] The reasoning in Kim was considered correct by Judge Manasouridis in Sharma v Minister for Immigration & Anor.[4] It was accepted in 1412960 (Migration)[5] that it was a requirement for the grant of a visa to a secondary applicant included in a nomination that the secondary applicant is sponsored by an approved sponsor.[6]
[2] [2007] FMCA 166.
[3] At [26].
[4] [2016] FCCA 1073 at [15].
[5] [2016] AATA 4193 at [36].
[6] 1412960 turned on whether, in the circumstances where an applicant for the visa is not included in any nomination that is required in respect of the person as in cl.457.324(1) the person was required to be sponsored. The Tribunal in that case held in these circumstances, the secondary applicant was not subject to a requirement that they are sponsored by an approved sponsor as they fell within cl.457.324(2).
These cases address an issue that is not present in this case. The reasoning in these cases refers to the application ultimately being futile because the nomination was either not approved or was withdrawn by the time of the application for review to the Tribunal. It points to the futility of a secondary applicant having a right of review if the primary applicant cannot succeed, and to the purpose of s.338(2)(d) being to prevent people who do not have sponsorship from seeking review of a visa refusal.[7] In this case Ms Shizleen and other members of Kayban’s family have been granted the visa, and the circumstances this provision was designed to address are not present in this case.
[7] Sharma at [13], Kim at [27], The Explanatory Memorandum to the Migration Legislation Amendment (Sponsorship Measures) Bill 2003.
These cases also address somewhat different issues and different criteria for the grant of the visa. They involve the grant of a Subclass 457 visa, which requires at cl.457.324(1) that the applicant is included in any nomination that is required in respect of the primary applicant. The provision in issue in this case is cl.482.315(a) that requires that the applicant is listed on the nomination identified in the primary applicant’s application. The difference in terminology does not impose a sponsorship obligation by being listed in the nomination, unlike the Subclass 457 visa.
In Ahmad, the issue under consideration was whether the Tribunal had jurisdiction in circumstances where the nomination had been refused and was the subject of an application for review. It is now settled that the Tribunal has jurisdiction where an application for review of a decision to refuse to approve the nomination has been made. In this case, the nomination has been approved.
Kim addresses circumstances where the “non-citizen” for the purposes of s.338(2)(d) includes the secondary applicant and found that, in circumstances where the primary applicant could not meet the requirements for the visa, s.338(2)(d) should be construed as if it said “it is a criterion for the grant of the visa to the primary visa applicant that the non-citizen is sponsored.[8]” In that case, the primary applicant was Ms Kim. Her = sponsor withdrew the sponsorship and Ms Kim could not meet the primary criteria. In these circumstances the secondary applicants could not succeed, and an application for review would be futile.
[8] At [26].
In issue in 1412690 was whether cl.457.324 requires that a secondary applicant is sponsored by an approved sponsor in circumstances where the applicant is not included in a nomination. This is unlike this case, where the issue is whether an applicant listed in the nomination is required to be sponsored by an approved sponsor.
As a result, the Tribunal finds that it is not a requirement for the grant of the visa that Kayban is sponsored by an approved sponsor at the time of the application for review. As a result, s.338(2)(d) does not apply. As Kayban meets the other requirements in s.338(2), the Tribunal has jurisdiction in this matter.
CONSIDERATION OF CLAIMS AND EVIDENCE
Kayban applied for a Subclass 482 visa on 4 August 2018. The criteria for a subclass 482 visa are set out in Part 482 of Schedule 2 to the Regulations.
As Ms Shizleen meets the primary criteria, Kayban is only required to meet the secondary criteria set out in Part 482 to be granted the visa. The criteria at cl.482.317 include public interest criterion 4007 (PIC 4007).
In general terms, PIC 4007 requires an applicant, in certain circumstances, to undergo a medical assessment, and to be free of certain diseases or conditions. A Medical Officer of the Commonwealth (MOC) conducts the medical assessment, and provides an opinion on whether the person meets the health requirements. If this assessment is validly made, the opinion must be taken as correct for the purposes of deciding whether Kayban meets PIC 4007 (r.2.25A).
PIC 4007 requires the person to be free of particular conditions. Of the provisions in PIC 4007, in issue is whether Kayban meets PIC 4007(1)(c). Clause 4007(1)(c) requires an applicant to 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.
Where the disease or condition is likely to require health care or community services, or which would meet the medical criteria for provision of a community service, the provision of the health care or community services (regardless of whether it will actually be used in connection with the applicant) a person will not meet PIC 4007 (1)(c) if the condition 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.
This applies regardless of whether the health care or community services will actually be used in connection with the applicant.
For specified temporary visas, certain health care and community services are excluded from this consideration (PIC 4007(1B)).[9] In this case the temporary visa Kayban is seeking is not specified in IMMI 16/067. As a result the health care and community services listed in the instrument IMMI11/073 are excluded from consideration. The costs excluded are social security payments, costs associated with issuing a Health Care Card or Pensioner Concession Card, and pharmaceuticals listed under the Pharmaceutical Benefits Scheme that, if ceased, would not be seriously detrimental to the applicant’s life or wellbeing.
[9] This applies to temporary visas other than those specified by the Minister in Legislative Instrument IMMI 16/067. The specific health care and community services excluded are those specified by the Minister in IMMI11/073. The definition of “community services” in r.1.03 includes the provision of an Australian social security benefit, pension or allowance.
In summary, this means that social security benefits and certain subsidies for medication are not included in a calculation of whether the costs to the Australian community are significant costs.
As it applies to Kayban, PIC 4007 requires a consideration of:
· Whether he is required to have a medical assessment;
· Whether there is a valid opinion from an MOC;
· Whether he meets the health criteria; and
· If not, whether the requirements of PIC 4007 should be waived.
Is Kayban required to have a medical assessment?
As Kayban is known to have developmental delay and haemophilia, this is information known to Immigration that he may not meet PIC 4007(1)(c) and therefore an opinion from an MOC is required.
Is there a valid opinion from an MOC?
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.[10] 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.
[10] Robinson v MIMIA (2005) 148 FCR 182 and Ramlu v MIMIA [2005] FMCA 1735.
There are two MOC opinions that have been sought, and the Tribunal has considered the most recent opinion dated 22 October 2018. Kayban was offered, but declined, the opportunity to seek a further opinion from an MOC prior to the hearing.
The opinion dated 22 October 2018 specifies that Kayban suffers severe developmental delay. It correctly identifies that he is to be assessed for the period of four years, which is the period of the visa.
The form and severity of his condition is stated to be:
The applicant has a severe global developmental delay on a background of a neonatal intracranial haemorrhage secondary to haemophilia A. He requires assistance with most of his activities of daily living, and cannot sit up, stand or walk. His haemophilia is managed with prophylactic Factor VIII weekly.
The MOC identifies that a hypothetical person with this disease or condition at the same severity of the applicant would be likely to require health care and community services for a period of four years, with the services likely to include state disability services.
The MOC states that 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.
The MOC did not include the community services specifically excluded from consideration, being social security benefits and certain pharmaceuticals as the services are identified as state disability service. The MOC lists a number of medical reports taken into account in forming the opinion.
The Tribunal finds the opinion of the MOC identifies the medical condition which Kayban suffers, the form or level of this condition and it applies the statutory criteria by reference to a hypothetical person who suffers that condition. As the MOC has applied the correct test, the Tribunal finds the opinion of the MOC is valid.
Does Kayban meet the health criteria?
The opinion of the MOC is that Kayban does not meet the health criteria in PIC 4007(1)(c). A validly made opinion of the MOC is binding on the Tribunal, and accordingly he does not satisfy PIC 4007(1)(c).
Should the requirements of PIC 4007(1)(c) be waived?
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: 4007(2).
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. The Full Court of the Federal Court stated in Bui v MIMA[11](‘Bui’) that:
The evaluative judgement whether the cost to the Australian community or prejudice to others, if the visa is granted, is “undue” may import consideration of compassionate or other circumstances. It may be to Australia’s benefit in moral or other terms to admit a person even though it could be anticipated that such a person will make some significant call upon health and community services. There may be circumstances of a “compelling” character, not included in the “compassionate” category that mandates such an outcome. But over and above the consideration of the likelihood that cost or prejudice will be “undue” there is the discretionary element of the ministerial waiver. And within that discretion compassionate circumstances or them more widely expressed “compelling circumstances” may properly have a part to play.
[11] (1999) 85 FCR 134 at [47].
In this particular case, Kayban is a young child with significant medical conditions. His family is of the view that his health will be compromised if he returns to the Maldives. It is submitted that the costs that the MOC states will be incurred for state disability services cannot be incurred as Kayban is not eligible for these services, and the family is meeting the costs associated with Kayban’s treatment. Other factors to be considered in this matter are the contribution Ms Shizleen makes to the community through her employment as a social worker in a regional area, the support of the community, and the effect on the family unit of returning to the Maldives.
In looking at these factors, the Tribunal is mindful that the visa sought is a temporary visa, which, if granted, will cease in 2022. The cost to the community is listed in additional information provided by the MOC in respect of the health waiver to be $236,000. As noted above, this does not include social security benefits and certain pharmaceuticals.
To the extent that these factors are not listed above, the Tribunal has also had regard to Departmental policy guidance on the exercise of this discretion. This is contained in the Procedures Advice Manual (‘PAM3’).
Kayban’s medical conditions and treatment
At the outset, it is useful to set out Kayban’s condition and the treatment he requires. The discharge summary from Bunbury Hospital states Kayban suffered a subarachnoid haemorrhage and cerebral infarction, seizures and anaemia secondary to severe haemophilia A. It states he was initially palliated but following successful extubation was actively treated.
It is submitted that Kayban suffered an acquired brain injury that was caused and exacerbated by the medical treatment he received. The circumstances were traumatic for his family. Ms Shizleen said they were initially advised Kayban would not survive and it was recommended that his life support system be turned off, however he survived and was put onto active treatment.
The family considers the hospital to be at fault in his conditions and intend to commence legal action, and submit that this is a further reason for Kayban to remain in Australia. The cause of Kayban’s medical conditions is beyond the scope of this Tribunal, and as a result the possibility that the family will commence legal action against the hospital is not a matter the Tribunal has considered further.
A report from paediatrician Dr Misty Blakeman dated 1 August 2019 states Kayban suffers from haemophilia A, severe acquired brain injury, spastic quadriplegic cerebral palsy, global developmental delay, severe gross motor, communication and visual impairment, severe oropharyngeal dysphasia resulting in complex feeding difficulties, failure to thrive, complex seizure disorder and bilateral hip dysplasia. Dr Blakeman explains that as a consequence of haemophilia A, Kayban suffered severe and extensive intracranial and intracerebral haemorrhages in his first months of life.
Ms Shizleen states Kayban requires 24 hour care. He is quadriplegic and uses a wheelchair. Kayban generally wakes at 8 am. His morning therapy involves standing in a frame, use of a skateboard and therapy based play with Mr Jamshaad. He may have a sleep after lunch and then does some more therapy based play in the afternoon. They have dinner as a family and then Kayban is generally awake until 10 pm.
In terms of medication, Kayban is generally on weekly intravenous prophylactic treatment of Factor VIII administered by a paediatrician or a doctor at Bunbury Hospital, but at the time of the hearing was on a break from this treatment because his veins are damaged. The Factor VIII is provided by Perth Children’s Hospital and is delivered to the family who take it to hospital for the duty doctor to administer to Kayban.
Kayban is on three types of medication for seizures which are administered twice a day, however his seizures are not fully controlled by the medication. Ms Shizleen states she pays the full cost of the medication.
Kayban is reviewed by the Perth Children Hospital approximately once a month by one of the teams involved in his care. These are the neurology team, the rehabilitation consultant, the haemophilia team or orthopaedic review. The neurology team reviews Kayban with EEG and medication review approximately every 2 – 3 months, the rehabilitation team which is review Kayban every 2 – 3 months, the haematology team review Kayban every 3 – 6 months, and there is orthopaedic review every 6 months if there are no major changes.
At home, Kayban sees a physiotherapist one hour per fortnight, an occupational therapist 1 – 2 hours per fortnight, and a speech pathologist weekly. These therapists are accessed through Andersons. He does hydrotherapy if he is well in the warmer months.
A joint letter from Kayban’s speech pathologist and occupational therapist reports that Kayban requires specialist medical intervention and ongoing intensive allied health input “to prevent further medical complications and ensure the best quality of life possible”. It states that without this Kayban will likely experience severe medical complications including scoliosis, hip dislocation, malnutrition, aspiration pneumonia, respiratory distress and premature death. It states, without reference to any services available in the Maldives, that his “forced return to the Maldives is effectively a death sentence”.
Dr Blakeman states Kayban requires speech therapy, physiotherapy and occupational therapy provided by therapists experienced in the care of children with complex neuro-disabilities, access to specialist equipment appropriate to his needs, access to specialist medical and surgical care and access to appropriate educational services.
Effect on Kayban if he does not receive treatment
Ms Shizleen said that if Kayban does not receive the prophylactic Factor VIII treatment he will be prone to bleeds, and these are not necessarily obvious to others as he may bleed in his joints or in his brain.
Ms Shizleen said there is a risk to Kayban undertaking other therapies such as physiotherapy without prophylactic treatment as there is a risk that the therapy will cause a bleed. His seizures contribute to bleeds because of the jerky movements he makes during seizures. Dr Blakeman reports that he has a significant ongoing risk of bleeds and this affects the way in which therapy is provided. Dr Blakeman states that ongoing access to Factor VIII is required to minimise risks to Kayban and for interventions that enable him to maintain his function and quality of life.
Dr Blakeman reports that medication is required to adequately control Kayban’s seizures to maximise his health and engage in therapy, social and educational opportunities.
Ms Shizleen said that if Kayban did not have speech therapy it would reduce his quality of life. He is learning to communicate and to say thank you. Dr Blakeman reports he can express delight and comfort as well as distress and pain.
Kayban has a compromised airway and his speech pathologist advises pureed food. An attempt has been made to institute feeding using a nasogastric tube, however this has led to an increase in his seizures. It is stated that if he does not receive occupational therapy he would not have equipment such as the wheelchair, a standing frame and a bathing chair. Ms Shizleen said if Kayban does not have supported seating he may get contractures, scoliosis and hip dysplasia.
Ms Shizleen said the physiotherapy is required to maintain tone and a range of movement. Dr Blakeman reports that without appropriate positioning supports Kayban may develop scoliosis with serious effects on his respiratory function. Lack of therapy may also lead to contractures causing permanent deformity of his arms and legs. Dr Blakeman reports that some treatments that may be available to assist Kayban such as botulinum toxin A will require specialist medical supervision due to the haemophilia A. Surgery that Kayban will require for hip dysplasia and a likely gastrostomy will require oversight from specialist medical teams.
Ms Shizleen said they had no real plans as yet for Kayban’s education. Dr Blakeman reports that treatment is required for Kayban to participate and engage meaningfully in disability specific education.
Dr Blakeman states Kayban’s health needs will become more complex over time owing to complications that can arise from cerebral palsy and he will require future surgery including hip surgery and a possible gastrostomy for supplemental feeding. It is anticipated in the next four years he may require corrective surgery for hip dysplasia.
Dr Blakeman reports that without appropriate, specialist high quality and high frequency medical and allied care, parental care alone, or together with less specialist or accessible care, will not enable Kayban his best level of function, resulting in greater and more severe complications over time that will impair his quality of life and diminish his life expectancy.
Dr Blakeman’s report does not state that in the absence of these treatments Kayban’s life will be at risk. She does state that the absence of these treatments will impair his quality of life and reduce life expectancy. She states she has great concern for Kayban’s long term wellbeing if the medical and allied health services are to a lesser standard than he would receive in Australia.
It is submitted that Kayban has a significantly reduced life expectancy due to his medical conditions which underlies the compassionate and compelling circumstances of this case, with his family wanting to provide optimal treatment given his reduced life expectancy.
While a number of references were provided regarding reduced life expectancy for people with cerebral palsy in general, this is not specifically addressed in Dr Blakeman’s report.
The Tribunal accepts that Kayban has a reduced lifespan, but does not have sufficient information to form a conclusion about what that reduced lifespan may be or the effect of not receiving treatment to the same standard he could receive in Australia over reaming three years of the visa. There is no reference in the medical reports to an immediate risk to Kayban, rather the concern is for his long term wellbeing.
Availability of treatment in the Maldives
An initial submission from the representative is that, if returned to the Maldives, Kayban’s siblings would be forced to watch him suffer a painful and protracted death. Ms Shizleen in her statutory declaration of 8 October 2018 states she wants to remain in Australia to have a chance for Kayban to survive. The report of Kayban’s occupational therapist and speech therapist states that return to the Maldives would be a death sentence for Kayban. Many of the letters from concerned members of the community state that Kayban’s life will be in danger if he leaves Australia.
If the effect of a decision was of that nature, this would weigh heavily in favour of the cost to the Australian community not being undue in the circumstances. However, on the information available to it, the Tribunal is not satisfied this would be a likely outcome of Kayban returning to the Maldives during the remaining three years for which the visa could be granted.
Factor VIII is available in the Maldives, as it is listed on the approved drug list of the Ministry of Health (Maldives) in June 2019. The Maldives is listed as the highest mean Factor VIII usage per capita in South-East Asia countries in the World Federation of Haemophilia Annual Global Survey 2017.[12] The Factor VIII and Factor IX in use in the Maldives is supplied by humanitarian aid. The World Federation of Haemophilia provides more recent information than the older 2014 World Health Organisation report cited in submissions.
[12] World Federation of haemophilia (2018) report on the Annual Global Survey 2017.
The World Federation of Haemophilia publishes Guidelines for the Management of Haemophilia,[13] which distinguishes between treatment for acute bleeds, which should occur within two hours and prophylactic care to prevent bleeding and joint destruction. It is stated prophylactic care should be the goal of therapy to preserve normal musculoskeletal function.[14]
[13] At page 12.
Ms Shizleen states she was unable to contact or obtain a response from the World Haemophilia Association regarding her requests for information about the availability of Factor VIII in the Maldives, and this did not give her confidence that the Factor would be available in an emergency or that she could depend on a public association.
The Maldives Food and Drug Authority provided a letter dated 29 July 2019 stating Factor VIII can be imported with a valid prescription if stored at the correct temperature. A response from the Maldives Haemophilia Society dated 24 July 2019 states that Factor VIII can be imported and the World Federation of Haemophilia is supporting the community with the required Factor. There are 18 people with haemophilia in the Maldives and the Government provides treatment in Cochin, India when required. As pointed out by Ms Shizleen, the ability to import a drug does not mean that it is available.
A letter from Dr Shumra, Consultant in Paediatrics, Senahiya Hospital Maldives National Defence Force dated 19 May 2018 states that in the Maldives haemophilia cases are treated by paediatricians with Factor VIII supplied by the Haemophilia Society of the Maldives. The average time from contact with the haemophilia patient to administration of Factor VIII is estimated to be one hour. The Tribunal finds that Factor VIII is available in these circumstances for an acute bleed. The letter states the Maldives does not currently have a haematologist, a comprehensive haemophilia care centre or facilities specialising in paediatric neurology in the Maldives.
While Ms Shizleen has concerns about the supply of Factor VIII in the Maldives, the information before the Tribunal is that Factor VIII is available and is used in the Maldives to treat a bleed for a person with haemophilia. The Tribunal accepts it may not be readily available or available at all on a prophylactic basis. There is no prohibition on importing Factor VIII, however Ms Shizleen says she does not know how she would go about doing so.
A letter from the President of the Republic of Maldives states that the Maldives’ health system is not equipped to provide adequate medical treatment for haemophilia patients similar to those available in Australia. It is stated that if he returned to the Maldives, Kayban will not have access to paediatric specific healthcare and therapies and this will impair his quality of life and life expectancy. It is stated Kayban would face a life threatening situation if he were to discontinue his treatment in Australia. The Minister of Foreign Affairs in the Maldives states the high level of healthcare required for Kayban is not available in the Maldives. It is stated both that haemophilia treatment is not available and that Kayban would have no access to the prophylactic treatment he requires to survive, or to meet his rehabilitation needs.
Ms Shizleen sought comments from 34 doctors registered in paediatrics in the Maldives, and received three responses. The letter from Ms Shizleen lists Kayban’s conditions and the specialist medical and allied therapists who treat him in Australia. It asks whether Kayban’s care needs can be met in the Maldives. Given the degree of specialty listed for those involved in Kayban’s care, it is unsurprising that not all of these specialists are available in the Maldives. The letter from Ms Shizleen, while accurately listing Kayban’s conditions, provides an extensive list of specialist medical practitioners and therapists available to treat him in Australia as well as the equipment he uses in Australia. In providing this list it suggests the answer that these specialist medical practitioners and therapists and the equipment available to him in Australia will not be available to him in the Maldives. The letter written to the medical practitioners in the Maldives does not differentiate between optimal treatments and services that available to Kayban in Australia and meaningful or suitable treatment that may be available to him in the Maldives.
This is reflected in the response from Dr Niyahsha Ibrahim which states at IGMH they may not be able to offer all of the services as stated in Ms Shizleen’s letter as they did not include paediatric subspecialties, but that physiotherapy, occupational therapy and speech therapy are available.
A response from Dr Micheline Salonga states that the paediatrics team comprises one paediatrician, one paediatric infectious diseases specialist and two neonatologists. Specialists in neurology, orthopaedics and plastic surgery are available but not specifically in paediatrics. Therapies such as occupational therapy, physical therapy and speech therapy are available in the Maldives, however they are general therapists and not paediatric specific therapists.[15]
[15] Email from Dr Micheline Salonga dated 21 August 2019.
Ms Shizleen states she has attempted to obtain a further report from Dr Shumra and implies that Dr Shumra is unable to answer freely. A further email from Dr Shumra dated 22 August 2019 reiterates parts of the earlier letter and refers Ms Shizleen to the Minister of Health. The earlier letter (referred to above) states Factor VIII is available and is estimated to be administered within an average of one hour.
Dr Afeef, a senior consultant paediatrician, states that Kayban’s complicated conditions cannot be managed in the Maldives as they do not have a haematologist and do not have rehabilitative facilities.
On the basis of the information before the Tribunal, it finds that the treatment Kayban may need in the event of an acute bleed is available in the Maldives, as are medical specialists in neurological, orthopaedics and plastic surgery, however these doctors are not also specialists in paediatrics. Prophylactic treatment for haemophilia is not available.
Occupational, physical and speech therapists are available but again not specific to paediatrics. Ms Shizleen states that general therapy is not suitable because of Kayban’s multifaceted conditions of acquired brain injury, uncontrolled seizures and cerebral palsy, as unless the therapy is highly specialised it can do more harm than good.
Kayban has a complicated cluster of conditions, with the therapies to prevent contractures and scoliosis affected by his haemophilia and involving a risk that the therapy he receives will result in a bleed. However, the Tribunal finds that while the level of specialist treatment that would be available to Kayban in Australia is not available to him in the Maldives, this does not mean he would not receive any treatment for an acute bleed or that therapies, albeit not specific to children or to his specific cluster of conditions, would be unavailable to him. The Tribunal is not satisfied his life would be at immediate risk if he were to return to the Maldives.
Actual cost of Kayban’s treatment and care
The cost to the Australian community for State disability services is estimated by the MOC to be $236,000 for the four year period of the visa.
It is submitted this cost should be reduced as approximately a year has lapsed since the term of the visa. This would still result in a cost of $177,000. It is not suggested Kayban’s family have the financial resources available to meet this cost. What is argued is that the cost will not accrue.
It is stated that the therapies accessed by Kayban such as speech pathology, occupational therapy and physiotherapy are funded by his family, and the only remaining cost is the blood product required for prophylactic treatment for his haemophilia. Ms Shizleen states that the administration of the prophylactic Factor VIII at the Bunbury Hospital is funded by medical insurance, with the gap being paid by the family.
Ms Shizleen states the family pays the full cost of Kayban’s medication. As certain pharmaceuticals are excluded from consideration by the MOC, this has not been considered further.
Ms Shizleen gave evidence that the cost for specialist medical reviews at the Perth Children’s Hospital is covered by her health insurance. Letters and reports from the Senior Social Worker at the Princess Margaret Hospital for Children and from Dr Blakeman state that Kayban’s parents have privately funded his hospital visits. A letter from Kayban’s speech therapist and occupational therapist state that the costs of treatment they provide are met by Kayban’s family. Mr Jamshaad is Kayban’s primary carer and looks after him at home. Mr Jamshaad has recently commenced work to assist with the payment of Kayban’s expenses.
It is submitted that Kayban would not be eligible for state disability services as accessing the National Disability Insurance Scheme (NDIS) or State based disability services is contingent on being an Australian citizen or permanent resident. Therefore, it is stated the costs listed in the estimate of the MOC cannot accrue.
The NDIS[16] and Disability WA websites[17] state that eligibility is contingent on being an Australian citizen or permanent resident. The NDIS website states that those not eligible for the NDIS may be eligible for other services.[18]
[16] An area in which these services may be provided for Kayban could include specialist education services when he is of school age, which is within the term of the visa. Ms Shizleen said they had not yet considered schooling for Kayban, and there is insufficient information on which to determine what, if any, costs to the community would be incurred as a result of his education. Ms Shizleen’s other two children are eligible for public education. Ms Shizleen said that the children she works with who have neurological conditions and developmental delay either access specialist education or are home schooled.
101. Given the submissions of the family and the lack of definite information on the calculation of the cost of “state disability services”, the Tribunal requested further information from the Department on the type of services covered by “state disability services”; whether this would cover any services in Western Australia other than those provided by Disability WA; whether special education services are included in state disability services; and whether a temporary resident in Western Australia would be eligible for state disability services.
102. The Department advised that the MOC costing of state disability services is currently based on services funded in Victoria, as a representative of costs for services provided by non-government agencies involved in providing direct care and support to people with a disability. The Department is currently reviewing the implications of the NDIS on the MOC costing model. The Department advised that the cost of “state disability services” is based on those of a hypothetical person, and is therefore not specific to a person in Western Australia. The Department states that as Kayban was two years of age at the time of the assessment, he was too young to require special education services in the period. The Department acknowledges that temporary residents are not eligible for Western Australian disability services, however as the costing is for a hypothetical person, and temporary visa applicants are able to access some State and Territory health and disability services in Australia, they are currently included in the MOC costing.
103. The Department provided Notes for Guidance for disability services dated November 2017 which contains the services the Department expects the MOC to consider. These include state disability services in Victoria. It is not specified in the Notes for Guidance that a temporary resident is not eligible for these services, as is the case in Western Australia.
104. As a temporary resident who is located in Western Australia, the Tribunal finds Kayban is not eligible for services funded by the NDIS or through Disability WA. As Kayban would not be eligible for funding under the NDIS or for services provided by Disability WA, the Tribunal finds the actual costs of Kayban’s care will not be funded by State disability services in Western Australia.
105. At present, Kayban’s family are meeting the cost of his care, other than the Factor VIII required for prophylactic treatment of his haemophilia.
106. As a result, the Tribunal finds the actual costs of Kayban’s care to the community are minimal.
Occupational skills and location
107. Ms Shizleen came to Australia as a Department of Foreign Affairs and Trade sponsored student. She was subject to a condition to return to the Maldives to complete a two year return home obligation. This obligation was waived by the Department on compassionate grounds for the medical treatment of Kayban.
108. Ms Shizleen came to Australia as a student and completed a Bachelor of Social Work with Honours at Edith Cowan University. Professor Kathy Boxall from Edith Cowan University provided a letter in which she states Ms Shizleen is probably the most capable student she has ever worked with. Ms Shizleen worked part time as a research assistant and a community development officer while studying. After completing her degree, she worked with the Multiple Sclerosis Society in WA as a social welfare officer for approximately one year. She is currently employed by Andersons as a social worker with an annual salary of $61,000.
109. Ms Shizleen’s work includes being an NDIS co-ordinator for Andersons, a private company which provides allied health and supportive therapies. Her work includes advocating for Australian citizens or permanent residents who have complex neurological conditions.
110. Ms Anderson, a director of Andersons, gave evidence that Ms Shizleen has stepped into a unique role as NDIS is being rolled out in the Bunbury area. Ms Anderson said that the social work department for Edith Cowan University is based in Bunbury and a course is conducted there. Graduates are available locally. In terms of recruiting for the position, Ms Anderson said she needs a person with skills to communicate with her clients with the right tone and have a good understanding of what is available in the community locally as well as an understanding of NDIS. On being asked if she could recruit locally for this role, Ms Anderson said it was unusual to have a person with Ms Shizleen’s skills in Bunbury. She said she otherwise has new graduates apply, and it said it takes about 6 months to recruit. On being asked if there are Australian citizens and permanent residents who apply for these jobs, she said there are but few.
111. If Ms Shizleen and her family leave Australia, Ms Anderson said she would have to relocate files to the Perth clinic.
112. While the occupation of social worker is on the Medium and Long-Term Strategic Skills List it is not on skills shortages lists prepared by Department of Employment, Skills, Small and Family Business either nationally or in Western Australia.[19] There are graduates from the Social Work course in Bunbury, and in these circumstances, the Tribunal places little weight on this factor.
[19] That the family is settled in a regional area is a matter which supports the waiver.
Support of the community
114. Kayban and his family have the support of the local community, who have provided petitions, a Facebook campaign and letters to the Minister in support of Kayban and his family remaining in Australia.
Needs of the family unit
115. Ms Shizleen submitted that her entire family unit should be considered when looking to whether the costs to the Australian community are undue costs. Ms Shizleen and Mr Jamshaad have two older children, Kyara who is five, and Yoosef who is twelve.
116. The family unit will return to the Maldives if Kayban’s visa is refused. While the Tribunal does not doubt this decision will have a significant impact on the family, and on Kayban’s siblings, this is not the question before the Tribunal which is whether the grant of the visa would be unlikely to have an undue cost to the Australian community.
Return to the Maldives
117. Ms Shizleen’s two sisters and her parents live in the Maldives. If the family were to return to the Maldives, they would return to the capital Male.
118. Ms Shizleen said the job prospects in Male are not too bad given she has worked in Australia, but that given their financial circumstances both she and Mr Jamshaad would need to work full time to maintain rent and their family, and it would be impossible to keep up as a one income family. This is unlike in Australia, where they can manage on just her income.
119. She said both her parents and her sisters work to maintain rent and keep up with costs. They would provide emotional support but not much practical support. Ms Shizleen’s parents and one of her sisters live together, and her other sister is married and lives with her husband. They live in Male. If the family returned to Male they would live with her parents and sister. She said average wages are 8,000 MVR per month and the rent is 15,000 per month. Her parents are divorced but live separately in the same house which is a three bedroom apartment.
120. Before coming to Australia Ms Shizleen, her Mr Jamshaad and Kyara lived with her parents and sisters. If the family returned to the Maldives, Ms Shizleen has reasonable work prospects and the support of her family.
CONCLUSION
121. The care Kayban requires is complex due to the effect of his haemophilia on other therapies he can receive. As such, his family states specialist paediatric allied health services are required. While the treatment Kayban requires for an acute bleed is available in the Maldives, as are allied health therapists, the prophylactic treatment he currently receives and specialist paediatric allied health services are not available.
122. Kayban has complex health care needs that would result in a significant cost to the community if he were able to access these services. The Tribunal has found he cannot, and the actual costs that can accrue to the community are minimal.
123. For the duration of the visa, the actual costs to the community are minimal. The family are living in regional Australia, and there will be some effect on Kayban if he does not receive the specialist treatment available in Australia. As a result, the Tribunal finds that granting the visa would not result in an undue cost to the Australian community within the terms of PIC 4007(2)(b). Therefore PIC 4007(1)(c) is be waived subject to Kayban satisfying all other requirements for the visa.
124. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for the visa.
DECISION
125. The Tribunal remits the application for a Temporary Skills Shortage (Class GK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 482 (Temporary Skills Shortage) visa:
·PIC 4007(2)(b) for the purposes of cl.482.317 of Schedule 2 to the Regulations.
Kate Millar
Senior MemberATTACHMENT
Migration Regulations 1994
Schedule 4
4007(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) subject to subclause (2) — 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 (1A); 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.
(1A)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.
(1B)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 (1A)(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.
(2)The Minister may waive the requirements of paragraph (1)(c) if.
(a) the applicant satisfies all other criteria for the grant of the visa applied for; and
(b) the Minister is satisfied that the granting of the visa would be unlikely to result in:
(i)undue cost to the Australian community; or
(ii)undue prejudice to the access to health care or community services of an Australian citizen or permanent resident.
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