Lawrence (Migration)

[2018] AATA 4634

Lawrence (Migration) [2018] AATA 4634 (16 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Master Godric Adam Lawrence

CASE NUMBER:  1805964

DIBP REFERENCE(S):  CLF2017/4369

COUNTRY OF REFERENCE:                  New Zealand

MEMBER:Kira Raif

DATE:16 August 2018

PLACE OF DECISION:  Sydney

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

Statement made on 16 August 2018 at 12:05pm

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) visa – Public Interest Criterion (PIC) 4007 – applicant did not meet the health requirements in PIC 4007 – applicant and his mother can remain in Australia permanently irrespective of the outcome of this visa application – child is receiving adequate health care and support – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 65

Migration Regulations 1994, r 2.25A, Schedule 2, cl 802.223, Schedule 4, Public Interest Criterion (‘PIC’) 4007

CASES
Bui v MIMA (1999) 85 FCR 134
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 Immigration on 1 March 2018 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of New Zealand born in May 2015. The applicant applied for the visa on 5 January 2017. The delegate refused to grant the visa as the applicant did not satisfy cl.802.223 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. The applicant seeks review of the delegate’s decision.

3. The applicant (through his mother) appeared before the Tribunal on 15 August 2018 to give evidence and present arguments. The applicant’s mother informed the Tribunal that she is unsure who the father of the child is and there is no father recorded on the child’s birth certificate. There is no evidence before the Tribunal that the child’s father is a permanent resident of Australia or an Australian citizen and on the evidence before it, the Tribunal does not consider the child to be an Australian citizen.

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

   Relevant law

5. 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, 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.

6. 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.

7. 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.

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

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

10. On the evidence before the Tribunal, a MOC opinion is required. 

11. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant undertook health examinations during the processing of the visa application. In July 2017 the MOC formed an opinion that the applicant did not meet the health requirements in PIC 4007(1)(c). The MOC opinion indicates that

    The applicant is a 2 year old person with moderate developmental delay. Form and severity of the applicant’s condition: the applicant has a moderate global development delay on a background of Trisomy 21. Provision of services to a hypothetical person with the applicant’s condition: a hypothetical person with the same condition of a similar severity would require Commonwealth and state disability services as well as special education and early intervention 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. The service would be likely to include: commonwealth disability services, state disability services, early intervention services, special education 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.

12. The MOC provided the following costing information for the purpose of the waiver.

    The estimated cost to the Australian community of the services identified in the 884 is likely to be

    Early intervention services                   $18,000

    Commonwealth disability services          $2,427,500

    State disability services  $2,709,000

    Special education services                  $300,000

    Total cost  $5,454,500

13. The delegate wrote to the applicant seeking comments on the above information and for the purpose of the waiver and the applicant provided additional evidence to the delegate. The delegate concluded that the potential costs were outweighed by compassionate and compelling circumstances or mitigating factors.

14. 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. 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?

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

16. 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.

    Negative impact on Australian citizen children (particularly those children of the relationship if a Partner visa has been applied for or those children who are already residing in Australia)

17. There are no other children affected other than the visa applicant. The impact on the visa applicant is addressed below.

    Result in immediate family members living apart.

18. The sponsor told the Tribunal that she came to Australia in 1996 with her parents. Her parents returned to New Zealand but she preferred to stay in Australia. Because she had no family support in Australia, she travelled to New Zealand to give birth to her son and returned to Australia when her child was two months old.

19. The sponsor told the Tribunal that she is holding the subclass 444 visas and hopes to get the Australian citizenship. The applicant is also holding the subclass 444 visa. The Tribunal finds that as a holder of the Special Category visa, both the applicant and his mother can remain in Australia permanently irrespective of the outcome of this visa application. The Tribunal finds that immediate family members will be required to live apart even if the applicant is not granted the visa for which he has applied.

    Whether, if an Australian citizen sponsor were forced to relocate, it would negatively impact on their health

20. The sponsor told the Tribunal said that most of her family in New Zealand are involved in gangs and that is why her family moved her to Australia. She does not want her son to grow up in that environment and she has no family support in New Zealand, no place to live and no car to get around and she will be homeless.  The Tribunal is mindful that if the sponsor were to move to New Zealand, she may be entitled to some level of government support in the same way she has accessed such support in Australia, although the Tribunal accepts that it may take some time to establish. The Tribunal accepts that relocation to New Zealand may cause a degree of hardship to the sponsor although the Tribunal is not satisfied that it would negatively impact on her health.

    Whether the applicant and/or other working family members have occupational skills in high demand (refer to the Skilled Occupation List or the Consolidated Sponsored Occupation List for guidance)

21. The visa applicant is three years old and has no occupational skills.

22. The sponsor told the Tribunal that she does not work and was not working before she gave birth to her son. The sponsor told the Tribunal that in the future, she plans to open her own business and employ her son. The Tribunal does not consider that the applicant and other family members have occupational skills in high demand.

    Whether the applicant and/or other family members have substantial assets or an ability to mitigate the costs/prejudice to access involved - for example, due to private care arrangements and/or support being available:

23. The sponsor told the Tribunal that at present, the child cannot walk or talk and is vulnerable. When he learns to walk and talk, he can attend school and she would find a job. When the child is older, she wants to run her own business. The sponsor said that at present, she relies on Centrelink payments and they have access to medical services free of charge.

24. There is no evidence that at present, the sponsor has any assets or ability to mitigate the costs involved, although the Tribunal acknowledges her intention to obtain a job in the future. There are no private care arrangements and no other support available.

    Whether an Australia citizen sponsor would not be able to migrate to the applicant’s home country (for example, because same-sex migration to that country is not available)

25. The sponsor told the Tribunal that she has been living in Australia for most of her life and she does not know New Zealand well. She has no family support in New Zealand and would find it hard to re-settle. She would have no accommodation and no car to take the child to medical appointments. She has some contact with her sister in New Zealand but not with other relatives. She is established in Australia and has support networks here. The Tribunal accepts that the sponsor has been living in Australia for a long time and considers Australia her home. The Tribunal also accepts that she prefers to remain in Australia. However, there is no reason why the sponsor – who is a New Zealand citizen – cannot return to New Zealand. The Tribunal acknowledges that it may take time for her to re-establish herself in New Zealand but the Tribunal does not consider this to be an unsurmountable task.

    Whether the applicant has significant family links in Australia.

26. The child’s mother lives in Australia. The sponsor told the Tribunal she has cousins, uncles and aunts in Australia but she has ‘little contact’ with them. The sponsor said she has contact with her sister in New Zealand but very little contact with other family members and she does not know them well.

27. The Tribunal finds that other than his mother, the applicant has very little family links in Australia.

    Significant support from family or community groups

28. The sponsor referred to having a support network in Australia. She told the Tribunal she sees counsellors and medical professionals and she said she has made friends. She states they make her feel connected to the community and make her feel like she has a place in Australia. The Tribunal accepts that the sponsor has accessed support from community groups and accepts that there is some level of professional support provided to the family.

    The potential contribution of the visa applicant and their family to Australia including skills, qualifications, English language ability and employment prospects that may assist the applicant and any dependants once in Australia

29. The applicant is three years old and the Tribunal does not consider that at that age, he is likely to make a meaningful contribution to Australia in the foreseeable future.

30. The sponsor told the Tribunal that she has not worked for a number of years and has been relying on Centrelink. She hopes that once her child is older, she will get a job and make a contribution and later on she plans to open her own business in event planning and management and offer employment to her son.

    Any other compelling or compassionate factors including the location and circumstances of the applicant and/or sponsor’s family members

31. The sponsor told the Tribunal that she cannot relocate to New Zealand for a variety of reasons. However, her evidence is that she is a holder of the Special Category visa and so is the visa applicant. It appears that there would be no need for the applicant and his mother to leave Australia while they continue to hold the Special Category visas. The sponsor suggested that her son may not be able to access NDIS if he is not the holder of a permanent visa but she also said that at present at least, they are able to access adequate services. The Tribunal does not accept on the evidence before it that the child’s medical treatment would be adversely affected unless he holds a Child visa or a permanent residence.

    The immigration history of the applicant (and sponsor/proposer, if applicable), including, for example, compliance to date with immigration requirements and any undertakings and

32. Nothing adverse is known about the sponsor’s immigration history. Her evidence to the Tribunal is that she came to Australia as a child in 1996 and has lived in Australia since.

    The applicant, sponsor and their immediate family can reside in a third country with no particular hardship

33. The applicant is a holder the Special Category visa. His mother is a New Zealand citizen and both can return to, and live in, New Zealand. The fact that both hold Special Category visas means that both the applicant and his mother can remain in Australia.

    A lack of family links to Australia and a lack of ties to Australia more generally

34. The applicant came to Australia at the age of two months while his mother has been living here since 1996. The Tribunal accepts there are strong ties in Australia. The applicant has limited immediate family in Australia, other than his mother, and has extended family in New Zealand, although the sponsor’s evidence to the Tribunal is that she has limited contact with them.

35. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view, having regard to the MOC opinion, that the applicant does not pass the health requirement. The Tribunal accepts that the applicant has lived almost his entire life in Australia and his mother has been living in Australia for over twenty years and they have strong ties to Australia. There is some degree of community support. However, the Tribunal also notes that the sponsor can relocate to New Zealand as she is a citizen of New Zealand and although she refers to a degree of hardship, the Tribunal is of the view that such matters can be resolved with time. The Tribunal is not satisfied the applicant or his family members have the skills or the capacity to make a significant contribution to Australia. The Tribunal does not consider that the applicant or the sponsor have any capacity to mitigate the costs and the costs are significant. Neither the applicant nor the sponsor have skills in high demand. The Tribunal places weight on the fact that the applicant is a holder of a Special Category visa irrespective of the outcome of this application and the sponsor’s evidence to the Tribunal is that they would not leave Australia. In practical terms, the Tribunal does not consider that hardship would be caused if the waiver is not applied and it would not adversely impact the applicant. The sponsor’s evidence is that the child is receiving adequate health care and support and he will be able to continue to access such support in the future.

36. The Tribunal is not satisfied that the granting of the visa would be unlikely to result in undue cost or undue prejudice within the terms of PIC4007(2)(b). Therefore PIC 4007(1)(c) cannot be waived.

    Conclusion

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

    DECISION

38. The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

    Kira Raif

    
    

    Senior Member