Morris (Migration)

[2020] AATA 3059

Morris (Migration) [2020] AATA 3059 (21 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Dorothy May Elizabeth Morris

CASE NUMBER:  1914943

DIBP REFERENCE(S):  CLF2015/30530

MEMBER:Hugh Sanderson

DATE:21 July 2020

PLACE OF DECISION:  Sydney

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

Statement made on 21 July 2020 at 11:20am

CATCHWORDS

MIGRATION – Contributory Aged Parent (Residence) (Class DG) visa – Subclass 864 (Contributory Aged Parent) – health criteria – opinion of medical officer of commonwealth – cognitive impairment and age-related debility requiring residential care services – now severely frail with limited life expectancy – unfit for any travel – referred to department for consideration by minister – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 25A(3), Schedule 2, cl 864.223, 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 20 May 2019 to refuse to grant the applicant a Contributory Aged Parent (Residence) (Class DG) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 19 May 2015. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.864.223 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.

   Background

3. The applicant is a citizen of the United Kingdom. She is currently 83 years old. She is sponsored by her daughter who is an Australian citizen.

4. The applicant entered Australia holding a Subclass 600 Visitor visa in December 2014. As she was not the holder of a substituted Subclass 600 Visitor visa at the time of the application she was required to undergo a health assessment conducted by the Medical Officer of the Commonwealth (MOC).

5. The report from the MOC dated 14 August 2018 stated that the applicant suffered from moderate functional impairment. This was based on a cognitive impairment and age-related debility. The MOC found that a hypothetical person with the same condition of similar severity would require residential care services. The MOC found that the applicant did not meet the health requirement.

6. The delegate who consider the application noted that as the MOC found that the applicant did not meet the health requirement the applicant not meet the criteria in PIC 4005. Accordingly, the delegate found that the applicant did not meet the criteria in cl.864.223 and refused the application.

   Information to the Tribunal

7. On 18 June 2019 the Tribunal wrote to the applicant giving her an opportunity to obtain a further opinion from the MOC. The applicant provided submissions made by her daughter together with further reports from Dr Obeid and Dr Bhatt.

8. The report from Dr Bhatt stated that the applicant was permanently medically unsuitable to travel internationally and was a resident at Hammond Care. The report from Dr Obeid provided details of the applicant’s continuing care. It stated that she was suffering from severe dementia and was functionally highly dependent. She had suffered a number of accidents resulting in a fracture to her hip. She was assessed as being severely frail. It was stated that she was unfit for any air or sea travel.

9. The submissions from the applicant’s daughter stated that her mother was in receipt of private healthcare cover. It was stated that as a citizen of the United Kingdom she had reciprocal healthcare rights in Australia. It was noted that the applicant had savings that would offset any expenses incurred and her daughter had lodged a $20,000 bond in accordance with the application for the Contributory Parent visa.

10. No request was made for a further opinion to be obtained from the MOC.

11. The applicant’s daughter and her son-in-law appeared before the Tribunal on 21 July 2020 by telephone to give evidence and present arguments. The applicant was not able to give evidence. The applicant was represented in relation to the review by her registered migration agent.

12. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. 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. The applicant in this case the applicant is suffering from multiple age-related debility.

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

14. 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.

15. 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).

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

17. 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 a MOC opinion required?

18. 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.

19. The Tribunal is satisfied that the MOC applied the correct test when assessing the applicant and that their opinion is valid. On the information provided by the applicant since the MOC provided their report dated 14 August 2018 it appears that the applicant’s condition has deteriorated and would still not meet the health criterion. As anticipated by the MOC, the applicant is now in full time residential care.

20. Accordingly, based on the opinion of the MOC, the applicant does not satisfy public interest criterion 4005(1)(c).

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

    Ministerial intervention

22. Although the Tribunal has found the applicant does not meet the criteria for the grant of the visa, the Tribunal supports an application for Ministerial intervention in the circumstances of the applicant. The Tribunal believes the unique and exceptional circumstances of the applicant would justify the granting of the visa.

23. The basis of supporting an application for Ministerial intervention are as follows:

    ·At the time of the application in 2015 the applicant did not display any of the medical conditions which lead the MOC to conclude that she did not meet the health criteria;

    ·The applicant is now suffering from multiple medical conditions and is restricted to residing in a high care section at Hammond Care;

    ·The applicant has been assessed as suffering from severe dementia, is highly dependent, wheelchair or bedbound and fully dependent upon nursing home staff;

    ·The applicant’s doctor has assessed her as being severely frail with a limited life expectancy;

    ·The applicant’s only close family is her daughter who is a citizen of Australia and lives in Australia;

    ·The applicant’s daughter spends extended time with her mother and provides voluntary assistance at Hammond Care;

    ·The applicant’s daughter is assisting in meeting the costs of the applicant’s medical treatment and care in Australia;

    ·The applicant does not have any close relatives who would be able to provide any assistance or emotional support to her in the United Kingdom;

    ·The applicant has been assessed as being unfit for any air or sea travel; and

    ·The current restrictions as to travel and the health concerns, particularly for the elderly, caused by the COVID 19 pandemic would mean the transfer of the applicant from her current care arrangements would be catastrophic for her.

24. The applicant has provided further medical reports which support the claim that it would be impossible for the applicant to be safely transferred out of her current care arrangements. This includes the following:

    ·Report of Dr John Obeid, consultant physician and geriatrician, dated 25 September 2019; and

    ·Report of Dr Ketan Bhatt, geriatrician, dated 9 July 2019.

25. For the above reasons, the Tribunal is satisfied that it would be impossible for the applicant to be moved from her current care arrangements for return to the United Kingdom. For these reasons, the Tribunal supports the application for Ministerial intervention.

    DECISION

26. The Tribunal affirms the decision not to grant the applicant a Contributory Aged Parent (Residence) (Class DG) visa.

    Hugh Sanderson
    Member

    
    

    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.