Lee (Migration)

[2019] AATA 2881

Lee (Migration) [2019] AATA 2881 (20 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Dr Ka Wai Lee

VISA APPLICANTS:  Mr Kin Hung Lee
Mrs Yim Yee Kwong (see ‘Other matter’)

CASE NUMBER:  1813766

DIBP REFERENCE(S):  OSF2014/071107

PLACE:Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicants Contributory Parent (Migrant) (Class CA) visas.



Statement made on 20 March 2019 at 12:19pm

CATCHWORDS
MIGRATION – Contributory Parent (Migrant) (Class CA) visa – Subclass 143 – health criteria not met – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994, Schedule 2, cl 143.225, Schedule 4, Public Interest Criterion 4005

CASES
Ramlu v MIMIA [2005] FMCA 1735
Robinson v MIMIA (2005) 148 FCR 182

WRITTEN STATEMENT

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 9 March 2018 to refuse to grant the visa applicants Contributory Parent (Migrant) (Class CA) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 30 October 2014. The delegate refused to grant the visa on the basis that the first named visa applicant (now referred to as the visa applicant) did not satisfy cl.143.225 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. The review applicant appeared before the Tribunal in a public hearing on 20 March 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. 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))?

5. Relevantly in this case, 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.

6. 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, this tribunal must take it be correct: r.2.25A(3).

   Is a MOC opinion required?

7. On the evidence before this 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.

8. On 3 July 2017 a Form 884 was received from the MOC. The MOC deemed the applicant does not meet the health requirement under PIC4005(c)(ii)(A). This MOC hs been provided to this tribunal by the applicant as part of the applicant’s application for review of the Minister’s decision. The MOC opinion stated (in-part) as follows: “The applicant is a 61 year old person with asymptomatic chronic viral Hepatitis B.” The MOC continues to state that the “…condition is likely to be permanent.” (MOC at folios 5-6).

9. It is also stated in the MOC that in preparing this opinion, reports from the Panel Physician dated 28 June 2017, and that of Dr Chan Man Chun, Associate Consultant, Department of Medicines and Geriatrics, were had regard to.

10. This tribunal has considered the applicant’s submission, and other documents provided as part of this review. While the immigration department has not attached to its file a copy of Dr Chun and the Panel Physicians report (this may have assisted this tribunal in making an assessment about whether the MOC was correctly made), the key question of whether the applicant has viral Hepatitis B cannot said to be disputed (page 6 of the applicant’s submission (folio16 reverse of this tribunal’s file)), although the severity and the costs associated with the disease is.

11. Further, it is clear that additional medical information was provided to the MOC, and a further MOC, dated 29 August 2017 made. This MOC also took into account the previous evidence, it states, and a medical report from Dr Kwan Wai Keung, three non-medical reports consisting of two health insurance policy schedules and a statutory declaration dated 4 August 2017. It is this MOC which forms the basis for this review as was discussed formally during this tribunal’s public hearing held 20 March 2019.

12. On 18 December 2018 this tribunal sent to the applicant a letter which outlined an opportunity to obtain a further ‘Opinion’. The applicant declined this opportunity via email dated 31 December 2018 (folios 38-39).

13. This tribunal is satisfied that the Officer’s assessment dated 18 December 2018 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 (in this case a person where the treatment has had “good effect” for “more than five years”). The Tribunal is satisfied that the Officer has applied the correct test and is bound to accept the medical opinion to be correct.

14. Given the above, and based on the MOC, the applicant does not satisfy public interest criterion 4005(1)(c)(ii)(A).

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

    Other matter

16. The review applicant has advised this tribunal that his mother, the second named applicant, has sadly passed away. Documentation was provided to this tribunal from the review applicant, and will be shared with the immigration department.

    *  *  *  *  *

    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.