Kyrtellis (Migration)

[2021] AATA 1573

Kyrtellis (Migration) [2021] AATA 1573 (17 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Konstantinos Kyrtellis

CASE NUMBER:  2003364

HOME AFFAIRS REFERENCE(S):          BCC2015/3265032

MEMBER:Justin Owen

DATE:17 March 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Contributory Parent (Temporary) (Class UT) visa.

Statement made on 17 March 2021 at 3:18pm

CATCHWORDS

MIGRATION – Contributory Parent (Temporary) (Class UT) visa – Subclass 173 (Contributory Parent (Temporary)) – heath criteria – medical assessment by the Medical Officer of the Commonwealth – Greek medical report – decision under review affirmed      

LEGISLATION

Migration Act 1958, ss 65, 359, 363
Migration Regulations 1994, Schedule 2 cl 173.224; Schedule 4; Public Interest Criteria 4005; r 2.25

CASES

Hasran v MIAC [2010] FCAFC 40
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 14 February 2020 to refuse to grant the applicant a Contributory Parent (Temporary) (Class UT) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 6 November 2015. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.173.224 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. On 21 February 2020 the Tribunal received a valid application from the applicant for a review of delegate’s refusal.  The applicant included the delegate’s decision record of 14 February 2020.

4. On 8 June 2020 the Tribunal wrote to the applicant noting that the decision to refuse to grant him a Contributory Parent (Temporary) (Class UT) visa was based on an opinion of a Medical Officer of the Commonwealth (MOC) dated 11 December 2019 that he did not meet the relevant criterion.  The Tribunal offered the applicant the opportunity to obtain a further opinion.  The Tribunal noted that it could arrange for a further opinion to be obtained from a MOC.  The applicant was informed  there was a $520 fee payable for the MOC, and the form setting out whether the applicant wished to arrange for a further opinion from a MOC was due to be returned to the Tribunal by 22 June 2020. 

5. On 9 June 2020 the Tribunal received correspondence from the applicant stating he would have contact with his doctor in Athens, Greece, for his next medical test and would be available on 12 October 2020.  He requested until November 2020 to send the results of his medical test to the Tribunal. 

6. On 23 June 2020 the Tribunal wrote to the applicant, granting his request for an extension to provide information until 3 November 2020. 

7. On 23 October 2020 the applicant wrote to the Tribunal.  The applicant provided a completed and valid form requesting a further opinion from a Medical Officer of the Commonwealth as well as a receipt for the $520 payable for the MOC.  The applicant also provided a Greek medical report, along with the English translation, of a blood test dated 12 October 2020 from the University of Athens’ University Medical School with ‘results of immunophenotypic investigation by flow cytometry’, signed by Professor Ioannis G. Panagiotidis.  The Tribunal subsequently sent the relevant information, including the report submitted, to the Department on 5 November 2020. 

8. On 10 November 2020 the new MOC was completed. The Medical Officer of the Commonwealth found that the applicant did not satisfy Public Interest Criteria 4005(1)(c)(ii)(A) in Schedule 4 to the Migration Regulations. The MOC was received by the Tribunal on 11 November 2020.

9. On 24 December 2020 the Tribunal wrote to the applicant pursuant to section 359A of the Act inviting him to comment on or respond to certain information that the Tribunal considered would, subject to his comments or response, be the reason, or part of the reason for affirming the decision under review. The Tribunal stated that the particulars of the information were the opinion from a Medical Officer of the Commonwealth that the applicant did not meet Public Interest Criteria 4005(1)(c).  A copy of the MOC dated 11 November 2020 was attached. 

10. The Tribunal noted that the information was relevant to the review because a criterion for the visa (cl.173.224 in Schedule 2 to the Migration Regulations) required that the applicant meets Public Interest Criteria 4005 (PIC 4005). The Tribunal noted that if this criterion is not met, the visa could not be granted and the Tribunal must affirm the decision under review.

11. The Tribunal noted that the opinion, if valid, was binding on the Tribunal. The Tribunal noted that the information was relevant to the review because the Tribunal may find the applicant did not meet the health requirement in PIC 4005. The Tribunal stated that if it relied on the information in making its decision, the Tribunal may find the applicant did not meet cl.173.224 as a result, the Tribunal would be obliged to affirm the decision to refuse the visa applicant a Contributory Parent (Temporary) (Class UT) visa.

12. The applicant was invited to comment on or respond to this information by 14 January 2021.

13. The Tribunal is satisfied that the review applicant was sent an invitation to comment on information under section 359A of the Act.  The invitation, dated 24 December 2020, was sent to the last address for service provided by the applicant in connection with his application for review.

14. Where an applicant is invited to comment on or respond to information under section 359A and fails to provide those comments within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information (subsection 359C(2)).  In these circumstances, the applicant is not entitled to appear before the Tribunal (subsection 360(3) and section 363A).  Crucially, the effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit the applicant to appear: Hasran v MIAC [2010] FCAFC 40.

15. The Tribunal has found that the applicant did not provide comments within the prescribed period.  No request for an extension of time to provide comments was received from the applicant.  The Tribunal has decided in this case to now proceed to make a decision on the review without taking further action to obtain comments from the applicant and without inviting the applicant to appear before the Tribunal. 

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The issue in this review is whether the visa applicant meets Public Interest Criterion (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.

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

18. 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.

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

20. In the present case, the temporary visa the applicant is seeking is specified in Legislative Instrument IMMI 16/067.  As such the health care and community services listed in instrument IMMI 11/073 are not excluded from consideration.

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

    Is a MOC opinion required?

22. 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.

23. On 11 November 2020 a Form 884 was received by the Tribunal from the MOC. The Medical Officer of the Commonwealth noted in the Form 884 dated 10 November 2020 that the applicant had been assessed against PIC 4005 and found to not meet PIC 4005(1)(c)(ii)(A).  The MOC noted that the applicant was a 54-year old person with asymptomatic HIV infection.  The MOC noted the condition was likely to be permanent. The MOC considered that a hypothetical person with the disease or condition, at the same severity as the applicant, would be likely to require long-term specialist health care services, including but not limited to antiretroviral pharmaceuticals and medical supervision.  Provision of these health care and/or community services would be likely to result in a significant cost to the Australian community in the areas of health care and/or community services.  The MOC had regard to the information available to date concerning the applicant including, but not limited to, reports from Dr Antoniadou, Associate Professor Antonios Papadopoulos, the report of the immigration medical examination and various blood tests.  The MOC concluded that s/he was not satisfied PIC4005(1)(c)(ii)(A) had been met.

24. On 24 December 2020 the Tribunal wrote to the applicant pursuant to section 359A of the Act inviting him to comment on or respond to certain information that the Tribunal considered would, subject to his comments or response, be the reason, or part of the reason for affirming the decision under review. The Tribunal stated that the particulars of the information were the opinion from a Medical Officer of the Commonwealth that the applicant did not meet Public Interest Criteria 4005(1)(c).  A copy of the MOC dated 11 November 2019 was attached.  No response to the invitation to comment on or respond was received.  The Tribunal notes the validity of the MOC of 10 November 2020 has not been challenged by the applicant.  

25. The Tribunal is satisfied that the Officer’s assessment dated 10 November 2020 is valid, in that it identifies the medical condition to which the Public Interest Criterion has been applied; specifies the form or level of the condition suffered by the applicant and has applied the statutory criteria by reference to a hypothetical person who suffers from the form or level of the condition. The Tribunal is satisfied that the Officer has applied the correct test and is bound to accept the medical opinion to be correct. 

26. Accordingly, based on the opinion of the MOC, the applicant does not satisfy public interest criterion 4005(1)(c).

27. The Tribunal notes from the delegate’s decision record the applicant provided that the applicant has previously provided a personal statement outlining the nature of their illness, treatment, medication and their ability to cover medical costs in Australia via travel insurance as well as the copy of a travel insurance policy valid until 24 November 2020.  The Tribunal appreciates the applicant’s desire to remain in Australia, but having found the MOC has applied the correct test in forming the opinion, the Tribunal must take the MOC to be correct.    

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

    DECISION

29. The Tribunal affirms the decision not to grant the applicant a Contributory Parent (Temporary) (Class UT) visa.

    Justin Owen
    Senior 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.