Meyer (Migration)

[2018] AATA 1884

Meyer (Migration) [2018] AATA 1884 (9 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Emeleen Winifred Janet Meyer

CASE NUMBER:  1611933

DIBP REFERENCE(S):  CLF2013/284463

MEMBER:Kira Raif

DATE:9 May 2018

PLACE OF DECISION:  Sydney

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

Statement made on 09 May 2018 at 1:06pm

CATCHWORDS
Migration – Aged Parent (Residence) (Class BP) visa – Subclass 804 (Aged Parent) – Valid Medical Officer of the Commonwealth assessment – Cost of the medical treatment – Private health insurance – Compelling circumstances – Capacity for independent living – Strong connection to Australia – Ministerial intervention referral – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 351
Migration Regulations 1994, r 2.25A Schedule 2 cls 804.225 Schedule 4 Criterion 4005, 4007

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 18 July 2016 to refuse to grant the applicant an Aged Parent (Residence) (Class BP) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of Zimbabwe born in May 1936. The applicant applied for the visa on 1 November 2013. 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. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 7 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s family. 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

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, 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.

5. Public interest criterion 4005(1)(a) and (b) require the applicant to be free from tuberculosis and 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.

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. The applicant was a holder of the Subclass 600 visa when the application was made but there is no evidence that it was a substituted Subclass 600 visa. The Tribunal finds that the applicant was not the holder of a substituted subclass 600 visa and must meet the PIC 4005.

10. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was requested to undertake health checks. In June 12016 a Medical Officer of the Commonwealth assessed the applicant as not meeting the health criteria in PIC 4005. On the evidence before the Tribunal, a MOC opinion is required.

11. In January 2018 the Tribunal wrote to the applicant to give her an opportunity to undertake a further assessment by RMOC but the applicant advised the Tribunal in February 2018 that that she did not wish to do that and on 9 May 2018 the applicant confirmed that she did not wish to obtain another MOC opinion. However, in her submissions to the Tribunal of 2 May 2018 and 7 May 2018 the applicant raised several concerns with the MOC opinion, stating it is invalid because the process leading to the opinion. The applicant’s representative states that the opinion does not take account of the severity of the condition and the costs of the treatment should not be considered as significant. The representative argues that the recognition that the applicant suffers only from moderate dementia indicates there has been an error in the calculation of the costs and the Tribunal has the power to reconsider the cost of the treatment as being less than significant. The representative submits that the procedures associated with the form and level of the costs is inaccurate and the Tribunal can make a finding that the costs are not significant without disturbing the finding about the applicant meeting the health criteria.

12. The Tribunal acknowledges the applicant’s submissions concerning the medical opinion, her condition and what the representative believes the costs would be. However, and contrary to the representative’s submissions, the Tribunal does not consider that it has the power to reconsider the cost of the treatment or substitute its own opinion in lieu of that of the medical officer. The applicant does not dispute that she has a medical condition and that the MOC assessment in that regard is correct. The applicant’s issue is with the cost of the treatment. The applicant has not satisfied the Tribunal that the MOC failed to have regard to the applicant’s circumstances in calculating the cost of the treatment or that such calculations are incorrect. The applicant has not satisfied the Tribunal that the MOC opinion is invalid.

13. The applicant submitted that she meets the costs of her treatment and has private health insurance. The applicant referred to the waiver of the health requirement in PIC 4007 but the Tribunal notes that the relevant provision in this case is PIC 4005 and there are no waiver provisions that apply.

14. 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. In this case, the Tribunal has formed the view that the opinion has been validly formed. Having regard to the MOC opinion, the Tribunal finds that the applicant does not meet PIC 4005. The Tribunal is not satisfied the applicant meets cl. 804.225.

15. The Tribunal has had regard to the applicant’s circumstances. The applicant is an elderly person with strong connections in Australia and limited connections and support in her home country. Her health condition is likely to affect her capacity for independent living. Having considered the ministerial guidelines relating to the Minister’s discretionary power under s.351, set out in the Department’s Procedures Advice Manual (PAM3) the Tribunal has formed the view that there are strong compassionate considerations in this case. The Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention.

    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 an Aged Parent (Residence) (Class BP) visa.

    Kira Raif
    Senior Member