LANGTON (Migration)

[2022] AATA 1392

LANGTON (Migration) [2022] AATA 1392 (10 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Frederick Langton
Mrs Yvonne Wilson Langton

REPRESENTATIVE:  Ms Nathalie Chu Yan Fui (MARN: 0960710)

CASE NUMBER:  2100478

HOME AFFAIRS REFERENCE(S):          CLF2017/46322

MEMBER:Christine Kannis

DATE:10 May 2022

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicants Aged Parent (Residence) (Class BP) visas.

Statement made on 10 May 2022 at 5:51am

CATCHWORDS
MIGRATION – Aged Parent (Residence) (Class BP) – Subclass 804 (Aged Parent) – health criteria – disease or condition likely to require health care or community services resulting in significant cost to community – moderate cognitive impairment likely to be progressive – opinion of medical office of commonwealth taken as correct – consent to decision without hearing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2), (3)
Migration Regulations 1994 (Cth), Schedule 2, cl 804.225, Schedule 4, criterion 4005(1)(c)(ii)(A)

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 decisions made by a delegate of the Minister for Home Affairs on 4 January 2021 to refuse to grant the applicants Aged Parent (Residence) (Class BP) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 29 June 2017. The delegate refused to grant the visas on the basis that the first named applicant (now referred to as the applicant) did not satisfy cl 804.225 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the health criteria in public interest criterion (‘PIC’) 4005 of Schedule 4 to the Regulations was not met. This was based on an opinion by a Medical Officer of the Commonwealth (MOC) dated 14 July 2020 that the applicant did not meet the health requirement. Specifically, the MOC stated that the applicant did not meet PIC 4005(1)(c)(ii)(A).

3. The Tribunal noted the date of the MOC and provided the applicant with the opportunity to obtain a further current MOC. The applicant, through his representative, advised that he did not wish the Tribunal to obtain a further opinion.

4. In response to the Invitation to attend a hearing the Tribunal was provided with:

   ·Response to hearing invitation indicating the applicant would not participate in a hearing and that he consented to the Tribunal making a decision on the papers without taking further steps to allow him to appear. The response also indicated that the second named applicant and the representative would not participate in a hearing.

   ·An order dated 29 August 2019 made by the State Administrative Tribunal appointing the second named applicant as the limited guardian of the applicant and the plenary administrator of his estate. The order is due to be reviewed in 2024 and the Tribunal is satisfied that the order operates at present.

5. The applicants were represented in relation to the review.

6. The Tribunal notes that the applicant has indicated that he has provided consent to the Tribunal to finalise the case without a hearing. The Tribunal is satisfied that the necessary consent has been given under s 360(2) of the Act and that, pursuant to s 360(3), the applicant is no longer entitled to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this review is whether 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 is said to have moderate cognitive impairment in the context of Alzheimer’s disease and normal pressure hydrocephalus.

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

9. Public interest criteria 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.

10. 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). As the applicant in this case has applied for a permanent visa, the exclusion provision in PIC 4005(3) does not apply.

11. In determining whether a person meets PIC 4005(1)(a), (b) or (c) reg 2.25A requires the Tribunal to seek the opinion of an 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 an MOC is required, the Tribunal must take it be correct: reg 2.25A(3).

    Is an MOC opinion required?

12. On the evidence before the Tribunal, an 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 PIC has been applied, and the form or level of the condition suffered by the applicant, and the MOC must have applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition.

13. The MOC dated 14 July 2020 relevantly provided as follows:

    The applicant has been assessed against Public Interest Criterion (PIC) 4005 [see attached extract] for the period of a permanent stay in Australia.

    The applicant does not satisfy sub-subparagraph PIC 4005(1)(c)(ii)(A) in Schedule 4 to the Migration Regulations.

    The applicant is an 80-year-old person with:

    - Moderate cognitive impairment.

    Form and severity of the applicant's condition: the applicant has moderate cognitive impairment in the context of Alzheimer's disease and normal pressure hydrocephalus. The applicant has a falls history and requires supervision with mobility and activities of daily living, and a person with their condition would be likely to require aged care services in Australia. Provision of services to a hypothetical person with the applicant's condition: A hypothetical person in Australia with the same condition as the applicant, at the same severity, would be likely to require community services, including but not limited to home-based community care services. This condition is likely to be Progressive.

    .

    I consider that a hypothetical person with this disease or condition, at the same severity as the applicant, would be likely to require health care or community services during the period specified above.

    These services would be likely to include:

    Community care services

    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.

    In preparing this opinion, I have had regard to the information available to date concerning the

    applicant, including, but not limited to the visa medical assessment (with associated Mini Mental State Examination and Activities of Daily Living Assessment) dated 10 July 2020.

    This opinion is provided following additional medical information being received from the visa applicant following the opinion of 13 July 2020. This comprises a Discharge Summary from Joondalup Health Campus (discharge date 3 July 2019), pathology results (dated 12 June 2019), and an MRI report (dated 11 June 2019).

14. The Tribunal notes that the MOC has deemed the applicant did not meet the health requirements under PIC 4005(c)(ii)(A).

15. The Tribunal has considered the MOC opinion. It has considered that it identifies the medical condition to which the PIC has been applied and the form or level of the condition. It has considered that the MOC has referred to the hypothetical person who suffers from the form or level of the applicant’s condition. The MOC notes a hypothetical person with this condition, at the same severity as the applicant, is likely to require health care or community services for the period of a permanent stay in Australia. The MOC states that the provision of these health care and/or community services would be likely to result in a significant cost to the Australian community in the area of health care and/or community services. The opinion of the MOC was based upon available medical and other reports.

16. The Tribunal is satisfied that the MOC has applied the correct test in relation to the applicant. It should therefore be taken to be correct.

17. There is no provision for a waiver of PIC 4005. Accordingly, based on the opinion of the MOC dated 14 July 2020, the applicant does not satisfy PIC 4005(1)(c). As he has not satisfied the requirements of PIC 4005, he does not satisfy cl 804.225.

18. For the reasons above, the Tribunal finds that the applicant does not meet the criteria for an Aged Parent (Residence) (Class BP) Subclass 804 visa and the Tribunal must affirm the decision under review in respect of him. As the second named applicant is not a member of a family unit of someone who, having satisfied the primary criteria, is the holder of a Subclass 804 visa, the Tribunal must also affirm the decision under review in respect of her.

    DECISION

19. The Tribunal affirms the decision not to grant the applicants Aged Parent (Residence) (Class BP) visas.

    Christine Kannis
    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.