Lim (Migration)

[2020] AATA 2995

Lim (Migration) [2020] AATA 2995 (13 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Cha Boh Lim

CASE NUMBER:  1927163

DIBP REFERENCE(S):  CLF2016/38950

MEMBER:Kira Raif

DATE:13 July 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Aged Parent (Residence) (Class BP) visa.

Statement made on 13 July 2020 at 3:45pm

CATCHWORDS
MIGRATION – Aged Parent (Residence) (Class BP) visa – Subclass 804 (Aged Parent) – health criteria – relevant disease or condition – opinion of medical officer of commonwealth taken as correct – all applicant’s children live in Australia – undertaking to provide support – no discretion to waive criterion on compassionate grounds – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), r 2.25A, Schedule 2, cl 804.225, Schedule 4, criterion 4005(1)(c)

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 a decision made by a delegate of the Minister for Immigration on 25 September 2019 to refuse to grant the applicant a Aged Parent (Residence) (Class BP) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 28 June 2016. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.804.225 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 Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

4. The applicant appeared before the Tribunal on 13 July 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s son. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages. The applicant was represented in relation to the review by her registered migration agent. 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) 4005 as required by the criteria for the grant of the visa. Public Interest Criterion 4005, 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.

6. 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).

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

8. 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, the Tribunal must take it be correct: r.2.25A(3).

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

9. There is no evidence that the applicant was the holder of a substituted subclass 676 visa and the Tribunal finds that the applicant is required to meet PIC 4005.

10. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that in April 2019 the Medical Officer of the Commonwealth found that the applicant did not meet the health requirements. The Tribunal gave the applicant the opportunity to undertake another health assessment and in June 2020 RMOC again formed the opinion that the applicant did not meet the health requirements.

11. In response to the Tribunal’s s. 359A letter the applicant states, through her representative, that her family can contribute to the cost of her treatment and that for a variety of reasons she cannot return to her home country. The applicant and her son gave the same oral evidence to the Tribunal. The Tribunal acknowledges that evidence but has no discretion to waive the health requirements.

12. 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.

13. The Tribunal considers the MOC opinion to be a valid one. Based on the opinion of the MOC, the applicant does not satisfy public interest criterion 4005(1)(c). The visa applicant does not meet cl. 804.225.

14. In oral evidence, the applicant told the Tribunal that all her children live in Australia and she cannot return to Australia. There are statements from other family members undertaking to provide support to the applicant. The Tribunal acknowledges the applicant’s submission that her family can provide the necessary care and cover the costs of care. Mr Khoo’s evidence to the Tribunal is that all the children are in Australia and have been taking care of their mother and all are contributing members of the society and are able to continue to provide the necessary support. However, as the Tribunal has explained in the course of the hearing, the Tribunal has no discretion to waive the health requirements on compassionate grounds and is unable to have regard to such matters.

15. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) but has decided not to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister.

    Conclusion

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

    DECISION

17. The Tribunal affirms the decision not to grant the applicant a Aged Parent (Residence) (Class BP) visa.

    Kira Raif
    Senior Member