Laosuwan (Migration)

[2020] AATA 2832

Laosuwan (Migration) [2020] AATA 2832 (11 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Vipa Laosuwan
Mr Somchai Laosuwan

CASE NUMBER:  1930905

DIBP REFERENCE(S):  CLF2008/96160

MEMBER:Helena Claringbold

DATE:11 March 2020

PLACE OF DECISION:  Sydney

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

Statement made on 11 March 2020 at 12:48pm

CATCHWORDS
MIGRATION – Aged Parent (Residence) (Class BP) visa – Subclass 804 (Aged Parent) – health criteria – severe functional impairment – residential aged care services – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.25A; Schedule 2, cls 804.225, 804.322; 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. On 2 May 2008, Mrs Vipa Laosuwan, the applicant, applied for an Aged Parent (Residence) (Class BP) visa.  The application was made on the basis of her parental relationship with Ms Suvimol Laosuwan, the sponsor. Mr Somchai Laosuwan, the applicant’s dependent spouse, and the sponsor’s father, was included in the application as a secondary applicant.

2. On 18 October 2019, a delegate of the Minister for Immigration and Home Affairs refused to grant the visas. The delegate was not satisfied that the applicant met cl.804.225 of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act). The delegate was not satisfied that the secondary visa applicant met cl.804.322 of Schedule 2 to the Regulations. On 31 October 2019, the applicant provided the Tribunal with a copy of the delegate’s Decision Record. This is a review of the delegate’s decision.

3. On 14 February 2020, the applicants were invited to attend a hearing before the Tribunal. On 27 February 2020, the applicant advised the Tribunal that the applicants declined the invitation to attend a Tribunal hearing and requested a decision on the papers. The Tribunal will proceed to make a decision on the papers.

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

   ISSUE

5. The issue in this review is whether the visa applicants meet public interest criterion (PIC) 4005 as required by the criteria for the grant of the visas. 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.

   BACKGROUND ON THE EVIDENCE

6. The applicant was born in 1944 in Thailand. At the time of application, she declared having seven siblings who lived in Thailand.

7. The secondary visa applicant was born in 1940 in Thailand. At the time of application, he declared having five siblings who lived in Thailand and two siblings who lived in the USA.

8. The applicant and secondary visa applicant are partners. There are two children as a result of their relationship, the sponsor who was born in 1974 and lives in Australia and another daughter who was born in1980 who lives in Thailand.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The Tribunal has taken into consideration, individually and as a whole, all the evidence in the Department of Home Affairs’ (the Department’s) case file and the Tribunal’s case file.

10. Clause 804.225 of Schedule 2 to the Regulations requires that:

    The applicant satisfies the public interest criteria mentioned for the applicant in the item in the table that relates to the applicant. In this case one of the items in the table is PIC 4005.

11. Clause 804.226 of Schedule 2 to the Regulations requires that:

1) Each member of the family unit of the applicant who is an applicant for a Subclass 804 visa is a person who satisfies the public interest criteria mentioned in the item in the table that relates to the applicant. In this case one of the items in the table is PIC 4005.

1. Clause 804.322 of Schedule 2 to the Regulations requires that:

   The applicant satisfies the public interest criteria mentioned for the applicant in the item in the table that relates to the applicant. In this case one of the items in the table is PIC 4005

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

2. PIC 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.

3. PIC 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 certain temporary visas, the applicant is excluded from the requirement to be free from a disease or condition likely to result in significant cost in the areas of health care and community services: PIC 4005(3).

4. As the applicant in this case has applied for a permanent visa, the exclusion provision in PIC 4005(3) does not apply and the applicant in this case must satisfy PIC 4005(1)(c)(ii)(A).

5. 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 an MOC is required, the Tribunal must take it be correct: r.2.25A(3).

   Is an MOC opinion required?

6. 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.

7. On 27 July 2018, the Department requested that the applicants provide information including documentation and health assessments.

8. On 5 November 2019, the Tribunal wrote to the applicants and advised the following: that on 1 July 2019, the Department up dated its procedural instructions for the MOC assessing health criteria: PIC 4005 and 4007. The changes may have effect on all MOC opinions made before 1 July 2019 based on the old procedure. The applicants were asked to advise whether they wished to have a further MOC. On 6 November 2019, the sponsor advised the Tribunal that the applicants did not wish to obtain a further MOC.

9. On 1 May 2019, the MOC found that Mr Laosuwan, the secondary visa applicant, did not meet the requirements of PIC 4005(1)(c)(ii)(A). 

10. The Tribunal considered the MOC as detailed below and is satisfied that it is valid. The MOC stated the following:

    ‘The applicant is a 78 year old person with: - Severe functional impairment. Form and severity of the applicant’s condition: The applicant has severe functional impairment associated with dementia and a hemiplegia resulting from a stroke, resulting in significantly impaired communication and mobility and a requirement for assistance with most activities of daily living. Provisions of services to a hypothetical person in Australia with the same condition as the applicant and at the same severity: a hypothetical person in Australia with the same condition as the applicant, at the same severity would require community services, including but not limited to residential aged care services. This condition is likely to be permanent.

    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:

    Residential 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 examination and assessment of activities of daily living dated 29 April 2019, a brief health summary and a report from optometrist Mr Anthony Roccon dated 26 April 2019.

11. In October 2019, the sponsor wrote to the Tribunal and stated the following: it is impossible for the applicants to return to Thailand. They sold their property in Thailand and lived in Australia for 11 years and are settled. In October 2016, her father, the secondary visa applicant, had a stroke which left him disabled. The applicant needs the assistance of the sponsor and her partner to provide care to the secondary visa applicant. The sponsor pays for all of the expenses to care for her father and can continue to do so. Her parents are getting older and she wants them to remain in Australia.

12. The Tribunal is satisfied that the MOC applied the correct test. Accordingly, based on the opinion of the MOC, the secondary visa applicant does not satisfy PIC 4005(1)(c)(ii)(A), therefore he does not meet cl.804.322 of Schedule 2 to the Regulations. As a result the applicant does not meet cl.804.226 of Schedule 2 to the Regulations. Therefore, the Tribunal must affirm the decision under review.

13. Although, the Tribunal is sympathetic to the applicants’ circumstances, it is bound to accept the MOC opinion.

    DECISION

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

    Helena Claringbold
    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)Sub-subparagraph (1) (c) (ii) (A) does not apply if:

    (a)the applicant would not be eligible for the provision of the health care or community services; and

    (b)the ineligibility would be due to the temporary visa for which the applicant is applying being of a particular subclass; and

    (c)the subclass is not specified by the Minister in an instrument in writing made under subparagraph (2) (b) (ii).