Jayasena (Migration)

[2021] AATA 2473

Jayasena (Migration) [2021] AATA 2473 (22 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Inuka Udeni Jayasena

VISA APPLICANT:  Mr Hawari Hewage Alfred Jayasena

CASE NUMBER:  1837037

HOME AFFAIRS REFERENCE(S):          BCC2018/4292490

MEMBER:John Longo

DATE:22 April 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 22 April 2021 at 11:46am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – applicant does not satisfy PIC 4005(1)(c) – health criteria not met – valid MOC opinion –decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, r 2.25A, Schedule 2, cl 600.213, Schedule 4, PIC 4005

CASES
Ramlu v MIMIA [2005] FMCA 1735
Robinson v MIMIA (2005) 148 FCR 182

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 December 2018 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 2 October 2018. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.600.213 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 review applicant appeared before the Tribunal on 29 March 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Hawari Hewage Alfred Jayasena, who is the review applicant’s father and visa applicant. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this review is whether the visa applicant (the applicant) meets PIC 4005 as required by the criteria for the grant of the visa. Public Interest Criterion 4005, as it applies to this case, is extracted in the attachment to this decision. It requires the applicant, in certain circumstances, to undergo medical assessment, and to be free of certain diseases or conditions that may impact on the community. The applicant in this case has been diagnosed with severe chronic renal disease.

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

6. Public interest criterion 4005(1)(a) and (b) require the applicant to be free from tuberculosis and free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community.

7. Public interest criterion 4005(1)(c) requires the 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; and provision of the health care or community services (regardless of whether it will actually be used in connection with the applicant) would be likely to: result in a significant cost to the Australian community in the areas of health care and community services; or prejudice access of an Australian citizen or permanent resident to health care or community services. For specified temporary visas, certain specified health care and community services are excluded from this consideration: PIC 4005(3).

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 to be correct: r.2.25A(3).

   Is a MOC opinion required?

9. 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.

10. The applicant provided to the Tribunal a copy of the primary decision record. On 8 November 2018 the Medical Officer of the Commonwealth assessed the applicant as not meeting PIC 4005. On 26 November 2018 the applicant was invited to provide additional medical information and comment on the report provided by the MOC. On 3 December 2018, additional information was provided to the delegate by the review applicant, including reports from Dr. A.W.M. Wazil (Consultant Nephrologist) and Dr. Rohini Tennakoon (Consultant Cardiologist). On 12 December 2018 the delegate proceeded to make a decision based on the MOC opinion of 8 November 2018.

11. The Tribunal gave the review applicant an opportunity to seek a review MOC (RMOC) opinion. The review applicant stated that they did not want to obtain a RMOC and did not provide any additional medical information regarding the applicant’s medical condition. The review applicant confirmed that his father suffers from severe chronic renal disease. He stated that his father commenced Continuous Ambulatory Peritoneal Dialysis (CAPD) about seven to eight months ago which he undergoes himself at home with the necessary medications. The review applicant conceded that his father’s condition has not improved since the MOC report was provided to the Department on 8 November 2018 but due to the CAPD it is stable. The review applicant stated that at the time of the MOC, his father was not undertaking any dialysis.

12. The review applicant stated that as his father is only expected to visit for a short stay, he does not think that it will have much of an impact. He stated that his father undergoes dialysis daily, for about an hour each time, twice per day. The applicant stated that he is able to undertake the dialysis without assistance. The review applicant stated that his father will bring his own medication and equipment to continue his dialysis while in Australia.

13. The Tribunal notes the review applicant’s submissions regarding his father’s ability to manage treatment without assistance and that he will have the necessary medication and equipment for his treatment with him. The review applicant stated at the hearing that due to the short stay, he did not think there would be any cost. The Tribunal notes that it is not necessary for the MOC to consider the financial circumstances or the applicant’s particular circumstances in the consideration of the ‘hypothetical person test’.

14. The Tribunal notes that the MOC opinion of the form and severity of the condition is consistent with the medical reports provided by the applicant to the Department. The Tribunal therefore finds that the MOC opinion has correctly identified both the medical condition and the form and severity of the condition to be considered in the ‘hypothetical person test’.

15. The Tribunal further notes that PIC 4005 specifically states that such considerations are to be determined regardless of whether health care or community services will actually be used in connection with the applicant. The Tribunal notes the applicant has access to medication and equipment for treatment. The Tribunal also notes that the applicant would likely have medical insurance as part of his visa conditions and the assistance of family, but these are not relevant considerations to determine the validity of the MOC opinion.

16. The Tribunal has formed the view that the MOC opinion obtained was required and that the MOC has applied the correct test in forming the opinion. In particular, the Tribunal is satisfied that the opinion identified the medical condition to which the public interest criterion has been applied, including the form or level of the condition suffered by the applicant, and the MOC has applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition. Based on the opinion of the MOC, the applicant does not satisfy PIC 4005(1)(c).

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

    DECISION

18. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

    John Longo
    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.