KAUR (Migration)

[2018] AATA 2704

KAUR (Migration) [2018] AATA 2704 (15 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANTS:  Mrs KIRANDEEP KAUR
Mr AJIT SINGH AJIT SINGH

VISA APPLICANT:  Master GUNEET SINGH GUNEET SINGH

CASE NUMBER:  1712264

DIBP REFERENCE(S):  OSF2015/079363

COUNTRY OF REFERENCE:                  India

MEMBER:Ann Duffield

DATE:15 June 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 15 June 2018 at 9:49am

CATCHWORDS
Migration – Extended Eligibility (Temporary) (Class TK) visa – Subclass 445 (Dependent child) – Health requirement – Significant costs to Australian community – Medical entitlement – Severe impairment – Lifetime care – Misrepresentation of applicant’s circumstances – Removal of applicant off as non-migrating child – No valid transfer of custody – Awareness of applicant’s condition – Employment prospects – Available savings – Credibility concerns – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.05, Schedule 2 cl 101.223, Schedule 4 PIC4007

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 on 4 April 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 applied for the visa on 19 November 2015. The delegate refused to grant the visa as the visa applicant did not satisfy cl.101.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4007 of Schedule 4 to the Regulations was not met.

3. The review applicants appeared before the Tribunal on 8 May 2018 to give evidence and present arguments.

4. The review applicants were represented in relation to the review by their registered migration agent who also attended the hearing.

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

   BACKGROUND

6. The parties provided the Tribunal with a copy of the delegate’s decision along with their application for review.

7. The applicant is a citizen of India born on 19 August 2006 (11 years old). The applicant suffers from severe [medical] impairment. He requires assistance in activities of daily living. The Commonwealth Medical Officer assessed the applicant as imposing a cost of almost $7 million on the community for relevant health care and other services over his lifetime.

8. The review applicants are citizens of Australia by grant on 29 July 2015 having first arrived in Australia in 2008.

9. The sponsors claim that they left the applicant in India because his grandparents were very attached to him and they thought that the applicant’s condition would get better. In a statement dated 11 July 2016 the review applicants state that the visa applicant came to Australia and was seen by a [specialist] who confirmed that the visa applicant was “already getting the best treatment from India and even if we wanted to continue his treatment in Australia; the same treatment would be continued here too”.

10. When the sponsors migrated to Australia they removed the applicant as a non-migrating child when health checks were requested, with evidence provided to the delegate that the applicant was in full custody of his paternal grandparents.

11. The delegate formed a view that the applicant was deliberately represented to the Department as a non-dependent family member to avoid a potentially unfavourable outcome for all, given the applicant’s health condition. If the applicant failed the health requirement, then all would fail and the visas would not have been granted.

12. The sponsors claim that they did not intentionally avoid including the visa applicant in their permanent visa applications because the applicant was living with his grandparents who had full custody of the applicant.

13. However, since the applicant’s grandparents have become sick, the sponsor claims that they (the grandparents) are unable to look after the applicant. The sponsor is a citizen now and wishes to remain in Australia. She claims that she and her husband cannot return to India to reunite with the applicant because it would be difficult for them to reintegrate after such a long time away.

14. The delegate formed the view that the sponsor and her husband have been born and raised in India and therefore eligible for an OCU card which will allow them to stay indefinitely in India. The delegate did not find it likely that they would face discrimination as they have lived in India for the majority of their life. The delegate formed a view that there did not appear to be any impediments to them returning to India to reside with the applicant.

15. The delegate refused the application on the basis that the applicant failed to meet the health requirements and as the costs to the Australian community are likely to be undue he did not exercise the power to waiver this requirement as there were no compassionate or compelling reasons.

16. The application was refused under PIC4007(1)(c)(ii)(A)

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The issue in this review is whether the visa applicant meets Public Interest Criterion (PIC) 4007 as required by the criteria for the grant of the visa. Public Interest Criterion 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. The applicant in this case suffers from a severe [medical] impairment which the Medical Officer of the Commonwealth (MOC) assessed would cost the Australian community almost $7 million over his lifetime.

    Is the applicant free from the relevant diseases or conditions (PIC 4007(1)(a), (b), (c))?

18. Clauses 4007(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.

19. Clause 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.

20. 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.

21. As the applicant in this case has applied for a permanent visa, the exemption provision in PIC 4007(1B) does not apply.

22. In determining whether a person meets PIC 4007(1)(a), (b) or (c), r.2.25A requires the Tribunal to seek the opinion of a Medical Officer of the Commonwealth (MOC) unless: the application is for a temporary visa and there is no information known to Immigration to the effect that the person may not meet those requirements; or the application is for a permanent visa and made from a specified country and there is no information known to Immigration to the effect that the person may not meet those requirements. Where an opinion of a MOC is required, the Tribunal must take it be correct: r.2.25A(3).

    Is a MOC opinion required?

23. 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.

24. Importantly, the MOC opinion must address the applicant’s satisfaction or lack of satisfaction of the requirement in PIC 4005(1)(c), 4006A(1)(c) and 4007(1)(c) at the time of the Tribunal’s decision. The MOC opinion was received on 27 April 2016.  As there has been a significant lapse in time since the MOC opinion, the Tribunal discussed with the sponsor at the hearing whether the circumstances of the case required that, in order to meet this requirement at time of decision, the Tribunal would need to obtain a further opinion.

25. The sponsor’s submission to the Tribunal was that she did not think another MOC would be significantly different to the existing one in that the applicant’s long term prognosis has not changed. Whilst they hope for an improvement the applicant, at the age of 11 years, he has only just begun to crawl and cannot speak.

26. The Tribunal asked the sponsor’s if they wanted to obtain another MOC and gave them an opportunity to consider their options and respond. The sponsors agreed that another MOC would not be required and accepted the validity of the MOC.

27. Despite their hopes that the applicant’s condition may improve, all agree that there is no realistic expectation that the applicant will ever be able to live independently and he requires 24/7 care for his daily needs for the rest of his life. The sponsor told the Tribunal that the applicant is incapable of receiving an education hence these costs should be deducted from the almost $7 million. The Tribunal suggested that the component of the total costs that could be expected to be reduced would not be significant and even though it accepted that they claimed they would pay for all the applicant’s needs, the Tribunal pointed out that as a permanent resident or citizen the applicant would have an entitlement to the medical and community care enumerated and they as his parents, could not sign away that entitlement.

28. In any case, the sponsors agree that the applicant has significant and permanent [impairments] that require a lifetime of 24/7 care.

29. Based on the evidence before it the Tribunal is satisfied that the MOC have applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition.

30. Accordingly, based on the opinion of the MOC, the applicant does not satisfy PIC 4007(1) (c).

    Should the requirements of PIC4007(1)(c) be waived?

31. 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 of health care or community services of an Australian citizen or permanent resident: 4007(2).

32. 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 Procedures Advice Manual (‘PAM3’). 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.

33. The Tribunal put to the sponsors that it had considered the delegate’s view that the sponsors had deliberately misrepresented the circumstances of the applicant so that they would be eligible for their own visas. The Tribunal put to the sponsors that if they had told the delegate that the applicant was a dependent family member, none of their visas would have been granted. The Tribunal put to the sponsors that whilst the matter was not directly material to the matter before it, the Tribunal’s concerns about the reliability and truthfulness of their evidence were a concern. The Tribunal put to the sponsors that if it formed a view that they had misrepresented the applicant’s circumstances in order for them to be granted their own visas, it may form a view that they have or will misrepresent other aspects of their evidence. If the Tribunal formed that view, it put to the sponsors that it may find their evidence unreliable and affirm the decision under review.

34. The sponsors argued that they did not deliberately misrepresent their circumstances at the time only that they had changed since the application was made. They claim that the applicant was in the lawful custody of his paternal grandparents. The Tribunal asked the applicants if there were formal documents drawn up to give those arrangements effect and they claimed that there were. Asked when they reclaimed full legal custody of the applicant the sponsors became evasive and then confused. They suggested that “culturally” these matters did not require legal documents, but merely an affidavit. The Tribunal suggested to them that if that were indeed the case, they appear to have misled the Department of immigration. The sponsors claim that the arrangements were agreed to and as the applicant’s parents the full legal custody of the applicant fell naturally to them. The Tribunal put to the sponsors again, that if that were indeed the case, then they misrepresented those arrangements to the department and that caused it some concern in relation to their credibility.

35. The Tribunal also discussed with the sponsors the time at which they became aware of the seriousness of the applicant’s condition and that he would not fully recover. The sponsors claimed that they still hoped that the applicant would improve. Asked if he would ever be capable of independent living the sponsors again became evasive and suggested that they, as parents, still held out hope that his condition would improve. Asked if, at the time of their own migration, they had any intention of ever reuniting with the applicant they said that they did not. They claimed that he and his paternal grandparents had formed a very strong bond and they were his legal guardians. Pressed again as to when they knew that the applicant would not recover the sponsors said that they continued to hope that he would. The Tribunal put to the sponsors that at the time of their migration to Australia the applicant was over 12 months old and at the time of their application for permanent residency in 2013, which was also the time that they handed full legal custody to his paternal grandparents, the applicant was around six years of age. The Tribunal put to the sponsors that according to their evidence the applicant was not able to speak and only recently began to crawl. He cannot stand and needs 24/7 care for all his needs. The Tribunal put to them that they nevertheless gave legal custody of their son to his paternal grandparents when he was six and it must have been evident that his condition was permanent and hence that his grandparents would have to look after him for the rest of his life. The Tribunal put to the sponsors that they had nevertheless placed the burden on the applicant’s paternal grandparents knowing that he would continue to require 24/7 care for the rest of his life and that they, eventually, would get old and/or frail and/or sick and at some point possibly die before the applicant came of age. The sponsors maintain that they did not have any intention of applying for the applicant to migrate to Australia but things changed when the applicant’s grandparents fell ill.

36. The Tribunal asked the sponsor if there was any contemporaneous medical evidence of the applicant’s condition at the time they migrated to Australia or at the time that they handed custody to his paternal grandparents in 2013. They said that they were not sure. The Tribunal gave them two weeks to locate any relevant documentary evidence, including documents relating to the alleged custody arrangements, the medical condition and prognosis for the applicant’s grandparents and any other evidence to support their claim that the PIC 4007 should be waived.

37. The Tribunal also put to the sponsors and their representative its concerns about their credibility and the fact that their evidence was evasive and at times implausible, particularly in relation to the legal arrangements for their son and that it appeared that they may well have mislead the department about their future intentions relating to the migration of their son. The Tribunal put to the sponsors that depending upon their response to these concerns they would form the reason or part of the reason for affirming the decision under review.

38. The Tribunal asked the sponsors why they could not return to India to reunite with the applicant. The Tribunal put to them that they had not had anything to do with his upbringing or care for the past ten years or more. The Tribunal put to the sponsors that in a previous statement they had said that the applicant was receiving the same level of specialised care in India that he would receive in Australia. The Tribunal put to the sponsors that there did not appear to be any impediments to them living in India.

39. The sponsors and their representative told the Tribunal that both sponsors were working full time and had developed detailed plans for looking after the applicant should he be allowed to migrate to Australia. More importantly, the sponsors have given birth to a daughter in November 2017 and she is an Australian citizen. The sponsors and their representative argue that the rights of this Australian citizen child should be foremost in the Tribunal’s mind.

40. The sponsors claimed that they would be able to contribute substantially for the care of the applicant themselves. They claim that they cannot go back to India to live because they would not get work and the situation for women and girls was particularly dangerous. The sponsors said that they were happy and settled in Australia and would not take their daughter back to India to live as it would be detrimental to them all. The sponsor said he did not think that his daughter should suffer because of her brother’s illness.

    The Second Tribunal Hearing

41. The parties requested a second hearing where they could present the Tribunal with additional information and further argument. The Tribunal agreed and a second hearing was conducted on 14 June 2018

42. At the second hearing the sponsors and their representative re-iterated the arguments presented at the first hearing, emphasising that the interests of their Australian citizen child should be paramount. They also provided some documents from the applicant’s [specialist] and other parties, including the applicant’s grandparents. The Tribunal has considered this information.

1. The parties argued that the Australian citizen child would be severely disadvantaged in terms of education, health and opportunities if she were required to return to India with them in the event the applicant’s visa was refused. The sponsors also argued that they would not be able to get well paid jobs if they returned and would also be actively discriminated against and harassed as foreigners if they were forced to return to India. The sponsors claimed that they would are no longer Indian citizens and would not have access to government services or jobs. The Tribunal asked them if there was any reason they could not avail themselves of Indian citizenship and they said that the card they would receive would allow them to enter and depart without a visa.

2. The Tribunal asked the parties if they had any evidence to support these claims and they said that it was well known that women and girls would be harassed and be in danger in India.

3. The Tribunal has carefully considered the interests of the Australian citizen child and the re union of the family in weighing up the factors it is required to consider when coming to a view about waiving the requirements of PIC4007. The Tribunal in particular notes the following as weighing against the parties:

   a.The sponsors have lived in Australia for ten years and prior to that were born, raised, educated and lived in India for around thirty years unmolested. They speak the language, have acquired additional skills whilst in Australia and have family and a family home to return to. There is no evidence to support the sponsor’s claims that they could not get jobs in their chosen professions aside from their mere assertions to that effect.

   b.There is no evidence before the Tribunal supporting the claims of the sponsors that they or their Australian citizen child will suffer such hardship that would amount to a reason to waive the requirements of 4007 if they were required to live in India. The Tribunal accepts that they will have a different quality of life.

   c.The parties have saved over AUD$100,000 whilst in Australia which would assist them greatly if they decided to resettle in India or assist in the continued care and support of the applicant should the sponsors decide to remain in Australia.

   d.The parties have left the applicant in the care of their parents for over ten years and visited once a year. They have not provided any financial assistance towards the care of the applicant. It seems to the Tribunal that their continued separation from the applicant would not cause such hardship that would move the Tribunal to waive the requirements of 4007.

   e.The parties have accepted the MOC as valid and therefore that the costs associated with the migration of the applicant to Australia would be in excess of $7 million.

   f.The Tribunal notes that the sponsor’s claim that they will meet all the costs associated with the applicant’s care, nonetheless, the MOC has been accepted as valid and therefore the estimate of the costs are also accepted. The Tribunal pointed out to the sponsors that they could not disenfranchise the applicant, should he become an Australian permanent resident or citizen, from the entitlement to those benefits.

   g.The Tribunal also notes evidence from the parties that the applicant’s condition had been diagnosed prior to their migration to Australia. The prognosis was that the applicant would improve over time but there does not appear to be any suggestion that the applicant would ever be in a position to live independently. As such, it seems to the Tribunal that the sponsors were well aware at the time of their migration and at the time that they made a non-judicially binding agreement with the applicant’s grandparents that they would look after him, that the applicant would never pass the medical requirements for migration to Australia and that is the only reason that they made the informal arrangement with their parents to take charge of the applicant’s care.

   h.There is no evidence before the Tribunal that the applicant would suffer such harm as would be a compelling reason to waive the requirements. Indeed, the evidence before the Tribunal is that the care received by the applicant is equal to that which could be provided in Australia. In this context the Tribunal notes the most recent evidence from the applicant’s [specialist] stating that the applicant would have a better quality of life in Australia.

   i.The parties provided affidavits from the applicant’s grandparents, firstly stating that they had the sole care of the applicant and secondly stating that they were unable to care for the applicant and that custody therefore reverted to the sponsors. These are non-judicial documents and can change at any time for any reason. It is incomprehensible to the Tribunal that such a document was accepted by the Department as some kind of valid transfer of custody for the purposes of accepting the sponsor’s migration application. The Tribunal gives these documents no weight for the reason that they carry no authority nor do they compel or commit any party to any long term arrangement.

   j.The Tribunal notes that the applicant’s grandparents are advancing in age. It seems to the Tribunal that this knowledge was inescapable at the time the sponsors asked their parents to look after the applicant and the Tribunal is at a loss as to why the sponsor’s did not consider this fact at the time of their migration. To now claim that the applicant’s grandparents are no longer able to look after the applicant and to produce a non-judicial affidavit to that effect strongly suggests to the Tribunal that the sponsors did not sponsor the applicant at the time of their own migration because they knew that their applications would fail. If their intention was to have the applicant raised lawfully by their parents, it seems to the Tribunal that a more legally binding document would have been sought and gained.

4. The Tribunal is not satisfied that there are compassionate circumstances or compelling circumstances that are relevant to the present case. The Tribunal has considered the applicant’s family links in Australia and the impact on family members and these weigh in favour of the parties.

5. The Tribunal has also considered the occupational skills of the applicant or family members and notes that the applicant will never live an independent life and is unlikely to acquire skills that may benefit the community in an economic sense. The Tribunal notes that the sponsors have skills that are easily transferrable to India should they decide to return to look after the applicant. The sponsors have considerable assets that could either be utilised to mitigate the costs or prejudice to access to care or services involved or to assist the family resettle in India, however the Tribunal is not satisfied that such mitigation would amount to even a fraction of the estimated total cost of almost $7 million.

6. The sponsors have some family in Australia and who could assist in the care of the applicant. The sponsors have demonstrated that they have contributed to Australia in terms of their skills and hard work. These are favourable considerations but do not, in the Tribunal’s view outweigh the significant cost to the Australian community associated with the lifetime support required for the applicant.

7. The Tribunal is moved by the conundrum the sponsors face in relation to the success or failure of the applicant’s visa and has weighed all the circumstances, individually and cumulatively, very carefully. However, for the reasons above, the Tribunal is satisfied that the granting of the visa would result in undue cost or undue prejudice within the terms of PIC4007(2)(b). Therefore PIC 4007(1)(c) cannot be waived.

   CONCLUDING PARAGRAPHS

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

   DECISION

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

   Ann Duffield

   
   

   Senior Member

   ATTACHMENT

   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.