Lee (Migration)

[2021] AATA 2194

Lee (Migration) [2021] AATA 2194 (11 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Addison Jun Sheng Lee

CASE NUMBER:  1909638

DIBP REFERENCE(S):  BCC2018/5485540

MEMBER:Dr Jason Harkess

DATE AND TIME OF

ORAL DECISION AND REASONS:         11 May 2021 at 9:24 am (VIC time)

DATE OF WRITTEN RECORD:                1 June 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 1 June 2021 at 8:31am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – health criteria – Medical Officer of the Commonwealth opinion – need for disability support services – private funding of education – decision under review affirmed          

LEGISLATION

Migration Act 1958
Migration Regulations 1994, Schedule 2, cl 500.217; Schedule 4 Public Interest Criterion 4005; r 2.25

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 17 April 2019 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 590 visa under the Migration Act 1958 (the Act).

2. At the hearing on 11 May 2021 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an application for review brought by Aik Lee Seng in case number 1909641, and there is also another matter which I am hearing at the same time, which is Addison Jun Sheng Lee, 1909638. 

4. The applicant in that case, if I can refer to them as Addison, is an applicant for a Student visa.  He made an application for a subclass 500 Student visa on 6 December 2018, he is a citizen of Malaysia, and ultimately the application for the subclass 500 Student visa was refused. 

5. Now, the reason it was refused is set out in a decision record of a delegate of the Minister who came to assess him, as the primary Student visa applicant, against the criteria contained in part 500 of schedule 2 of the Regulations. Now, clause 500.217 requires the applicant to meet a number of public interest criteria. Clause 500.217 requires the applicant to satisfy public interest criterion 4005. That particular criterion is set out in schedule 4 of the Migration Regulations.

6. It requires, amongst other things, that the applicant 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 visa period, were a visa to be issued to him.

   (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 healthcare or community services will actually be used in connection with the applicant.

7. That is the basis upon which the applicant, Addison’s, visa was ultimately refused by the delegate at first instance when the delegate made the decision.  The medical officer of the Commonwealth had assessed and determined that the applicant, Addison, did not satisfy that criterion, and that was based on a medical report dated 11 February 2019.  At that time, it was found by the Commonwealth medical officer, in the officer’s opinion, that the applicant at that time was 14 years old with a moderate functional impairment, quote:

   Form and consideration of the applicant’s condition:  the applicant has moderate functional and cognitive impairment due to intractable epilepsy and associated learning and behavioural difficulties and requires educational support and supervision with daily activities.  Provision of services to a hypothetical person in Australia with the same condition as the applicant and of the same severity:  a hypothetical person in Australia with the same condition as the applicant at the same severity would be likely to require disability support services including, but not limited to, special education and state disability 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 special education services and state disability 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. 

8. That is the finding of the medical officer, and he has had reference to reports of Dr Jeremy Freeman, dated 25 October 2016, Dr Derrick Chan, 2 February 2017, and a further medical assessment dated 11 December 2018.  Now in this case, Ms Agnes Lee - the applicant, Addison’s, sister - appeared in support of her brother’s application and spoke on his behalf as well as her mother’s behalf, who is the applicant in the other matter.

9. She is now a permanent resident, and is also a nurse, so the tribunal accepts that she was in a position to communicate with respect to the application, and she acknowledged that the condition is permanent.  She also made clear that the cost of the applicant’s education in Australia is being borne privately by the family, and I accept that, and it is pointed out that even that does not allow them to avoid the operation of the requirement which requires strict adherence to public interest criterion in 4005.

10. I have had regard to the letter dated 23 April 2021, from Dr Jeremy Freeman, who confirms that the applicant, Addison, is attending a Monash Special Developmental School, a school which is of a kind that simply does not exist in Malaysia, and I accept also that the applicant, Addison, is receiving significant benefit in being able to attend that school in Australia. 

11. The difficulty is that even though they are paying for that themselves, the test contained in application of criterion 4005 does not leave any room to avoid the application of the criterion, even if an applicant is prepared to pay for the fees themselves.  The reality is that a spot in that particular school, which no doubt has a long waiting list, is being taken up by somebody who does not have priority according to the law of Australia.

12. The application of public interest criterion 4005, which I am now to apply, is premised on the fact that priority is to be given to Australian citizens and Australian permanent residents.  The applicant, Addison, does not have priority, and that is why the test, in one view, is so harsh. 

13. In all of these circumstances, as I am bound to apply the law, I cannot be satisfied that the applicant, Addison, meets public interest criterion 4005 for the reasons I have articulated, and therefore, for that reason, the time now being 9.33am on 11 May 2021, I affirm the decision not to grant the subclass 500 visa in case number 1909638 to Addison Jun Sheng Lee.

14. In relation to case number 1909641, where the applicant is Aik Lee Seng, who is the mother of the applicant Addison, she has sought a Student Guardian visa, the success of which is dependent entirely on the successful outcome of her son Addison. 

15. The tribunal has affirmed the decision in relation to Addison.  As a necessary consequence, she does not meet the criteria for a subclass 590 visa, which requires the existence of a nominating student who holds a visa he does not.  So, I affirm also the decision in relation to her.

    DECISION

16. The Tribunal affirms the decision under review.

    Dr Jason Harkess
    Member