Mayank (Migration)

[2018] AATA 403

Mayank (Migration) [2018] AATA 403 (1 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Master Mayank

CASE NUMBER:  1702056

DIBP REFERENCE(S):  CLF2016/4874

MEMBER:Nicholas McGowan

DATE:1 March 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Child (Residence) Class BT (Subclass 802) visa with the direction that the applicant meets PIC 4007(2)(b) for the purposes of cl.802.223.



Statement made 01 March 2018 at 1:18pm

CATCHWORDS
Migration – Child (Residence) Class BT visa – Subclass 802 (Child) – Applicant did not meet the health criteria – Undue cost to the Australian community – Family in Australia – Communities interest to allow for family reunion

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, r .2.25A Schedule 4 Criteria 4005, 40006A, 4007 Schedule 2 cl 802.223

CASES

Bui v MIMA (1999) 85 FCR 134
Ramlu v MIMIA [2005] FMCA 1735
Robinson v MIMIA (2005) 148 FCR 182

REVIEW AND STATEMENT OF REASONS

1. The applicant applied for the visa on 21 January. On 18 January 2017 the Minister for Immigration refused to grant the visa applicant a Child (Residence) (Class BT) Subclass 802 visa under s.65 of the Migration Act 1958 (the Act). On 1 March 2018 a public hearing was conducted with the applicant’s father providing oral evidence on behalf of his son.

   CONSIDERATION OF CLAIMS AND EVIDENCE

2. The issue in this case is whether the applicant satisfies public interest criteria (PIC) 4007(1)(c)(ii)(A), and if not, whether the waiver provision should apply.

3. Relevantly in this case, Regulation 2.25A requires the Tribunal to seek the opinion of a Medical Officer of the Commonwealth (‘MOC’) in determining whether a person meets the requirements of PIC 4005(1)(a), 4005(1)(b), 4005(1)(c), 4006A(1)(a), 4006A(1)(b), 4006A(1)(c), 4007(1)(a), 4007(1)(b), or 4007(1)(c) of Schedule 4 to the Regulations.

4. In deciding whether a person meets the requirements of PIC 4007(1)(a), (1)(b) or (1)(c), in circumstances where an opinion of a MOC must be sought, the Tribunal is to take the opinion of the MOC to be correct: r.2.25A (3).

5. The Tribunal has the following documents:    Dept. of Immigration Border Protection file.

   
     

   MRT case file 1702056

   Waiver of PIC 4007(1)(c)

6. The health criterion in PIC 4007(1)(c) may be waived under PIC 4007(2) 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.

7. The Full Court of the Federal Court considered the operation of the health waiver in the case of Bui v MIMA (1999) 85 FCR 134 (‘Bui’). In the context of the relevance of ‘compelling or compassionate circumstances’ when considering waiver, the Court stated at [46] - [47]:

   ....There are obviously broad judgments to be made in determining what amounts to ‘undue cost’ and ‘undue prejudice’. Reading together the criteria in Item 4007(1)(c)(i) and the criterion for waiver in Item 4007(2)(b)(i) it is apparent that the occasion for the exercise of the waiver will only arise where it is already established that the cost to Australia, if the visa is granted, is likely to be ‘significant’. The Minister will therefore need to be satisfied that a likely ‘significant’ cost will nevertheless not be ‘undue’. In the former determination he or she is evidently to be bound by the opinion of a Medical Officer of the Commonwealth.

8. The evaluative judgment whether the cost to the Australian community or prejudice to others, if the visa is granted, is ‘undue’ may import consideration of compassionate or other circumstances. It may be to Australia's benefit in moral or other terms to admit a person even though it could be anticipated that such a person will make some significant call upon health and community services. There may be circumstances of a ‘compelling’ character, not included in the ‘compassionate’ category that mandate such an outcome. But over and above the consideration of the likelihood that cost or prejudice will be ‘undue’ there is the discretionary element of the ministerial waiver. And within that discretion compassionate circumstances or the more widely expressed ‘compelling circumstances’ may properly have a part to play.

9. If satisfied that the granting of the visa would not result in such undue cost or prejudice, and the applicant meets all the other criteria for the grant of the visa, the decision maker may exercise the discretion to waive PIC 4007(1)(c).

10. Departmental policy contained in the Procedural Advice Manual 3 (‘PAM3’) provides guidance on the exercise of this discretion, and factors that should be taken into account when considering exercise of the power. 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.

    MOC assessment

11. The MOC obtained by the delegate and assessed on 11October 2016 states an opinion that the applicant does not meet the health criteria in PIC 4007.

12. The MOC assessment was completed by a Medical Officer of the Commonwealth who considered that the applicant was a person to whom 4007(1)(c) applied on the basis that he has a severe functional impairment on a background of cerebral palsy.

13. The MOC stated that the applicant’s condition is likely permanent and would require residential care services; special education services; Commonwealth disability services, and state disability services, during the period of a permanent stay in Australia.

14. The MOC stated that provision of these services would be likely to result in a significant cost to the Australian community in the areas of health care and/or community services.

15. The MOC opinion also stated that it would not be likely to prejudice access of an Australian citizen or permanent resident to health care or community services. The MOC based his opinion on available medical and other reports.

16. The Tribunal has had regard to the decisions in Robinson v MIMIA (2005) 148 FCR 182 and Ramlu v MIMIA [2005] FMCA 1735 and is satisfied that the MOC did not apply the wrong test in this matter.

17. The Tribunal is satisfied that the MOC opinion identifies the applicant’s condition to which the public interest criteria have been applied, has ascertained the form or level of the condition suffered, and has applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition.

18. The Tribunal is therefore bound to accept the final assessment of the MOC to be correct for the purposes of deciding whether the son satisfies the relevant health criterion, unless the requirements of PIC 4007(1)(c) are waived under PIC 4007(2).

    Would the grant of the visa result in undue cost to the Australian community?

19. The Tribunal notes the MOC found that the issuance of a visa would not result in undue prejudice to the access to health care or community services of an Australian citizen or permanent resident. Having taken this opinion, and all the other circumstances of this case into consideration, the Tribunal is satisfied no undue prejudice to the access to health care or community services of an Australian citizen or permanent resident would be caused by the issuance of a visa. Accordingly, PIC 4007 (2)(b)(ii) is met.

20. Therefore, the question for the Tribunal is whether granting the visa would be unlikely to result in undue cost to the Australian community: PIC 4007(2)(b)(i). The MOC has stated that provision of health services would be likely to result in a significant cost to the Australian community as outlined in paragraph 13. Whether or not the Tribunal considers the cost of health and community services identified in the MOC to be an undue cost to the Australian community is a vexing question because undue is not defined in legislation.

21. In making its assessment of whether the cost to the Australian community is ‘undue’, the Tribunal has taken into consideration the fact that the sponsor, who is the applicant’s father, is an Australian citizen, as are his permanent resident wife (the applicant’s mother) and the applicant’s sister, who is an Australian citizen.

22. The Regulations do not define ‘undue’ in relation to undue cost in PIC 4007(2)(b)(i). The Oxford Dictionary defines undue as: Unwarranted or inappropriate because excessive or disproportionate.

23. The Tribunal has placed significant weight on the unique circumstances of this case. For an Australian citizen to be required to be separated from his son indefinitely, obviously adversely affects that citizen’s interests. Further, for the applicant’s Australian citizen sister and permanent resident mother to be potentially permanently separated from the applicant and barred from participating in the family life he will build will have a significant impact on their interests. The Tribunal believes that it is in the Australian communities interest that visas be granted to allow for family reunion and only be withheld where there are clear countervailing reasons. The cost, while significant for the services identified, does not in itself justify having the Australian citizens and permanent resident’s interests so significantly affected when it has long been recognised that uniting families is in the best interests of all Australians, not just the applicant and his family.

24. Given the above circumstances, and in addition to the application of a degree of compassion driven by the interests of two Australian citizens and one permanent resident involved and their emotional well-being, the Tribunal finds that the granting of the visa would be unlikely to result in undue cost to the Australia community. Therefore, PIC 4007(2)(b)(i) is met.

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