Moshi (Migration)

[2018] AATA 4921

Moshi (Migration) [2018] AATA 4921 (25 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Albert Moshi

VISA APPLICANTS:  Mr Namroud Odisho
Mrs Fadhila Kaka
Mr Milad Moshe

CASE NUMBER:  1613187

DIBP REFERENCE(S):  2013/062173 OSF2013/062173

MEMBER:Nicholas McGowan

DATE:25 October 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Contributory Parent (Migrant) (Class CA) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 143 (Contributory Parent) visa:

· PIC 4005 for the purposes of cl.143.229 of Schedule 2 to the Regulations.

Statement made on 25 October 2018 at 2:12pm

CATCHWORDS

MIGRATION – Contributory Parent (Migrant) (Class CA) – Subclass 143 (Contributory Parent) – medical assessment – moderate to severe impairment – medical opinion of the Commonwealth required – decision under review remitted for reconsideration

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 2.25A Schedule 2 cl 143.229 Schedule 4 PIC 4005

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 decisions made by a delegate of the Minister for Immigration on 10 June 2016 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 24 December 2013. 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.143.229 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 on 4 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from other witnessed present at the public hearing (audio recording available). The Tribunal hearing was conducted with the assistance of an interpreter in the Assyrian and English languages.

4. The review applicant was represented in relation to the review by his registered migration agent.

5. For the following reasons, the Tribunal has concluded that the [matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 has a moderate-to-severe intellectual impairment due to Downs syndrome.

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

7. 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.

8. 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).

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

10. 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?

11. 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.

12. An opinion was provided on 21 June 2018 after a request from this Tribunal for an updated MOC. This ‘new’ MOC was a ‘desk’ review conducted without any contact whatsoever with the applicant or review applicant. It was based entirely off data and information obtained during the last medical advice and reports (all of which date back to 2014). Reasonably, the opinion of the MOC cannot be taken to be correct.

13. In the absence of a correct MOC, the Tribunal is bound under section 353 of the Act to “..pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick”. Moreover, s.353(2) of the Act makes it clear to this Tribunal that in reviewing decisions it is “not bound by technicalities, legal forms or rules of evidence; and shall act accordingly to substantial justice and the merits of the case.” It follows therefore that this tribunal is satisfied that the applicant satisfies public interest criterion 4005.

14. Given the findings above, the appropriate course is for the Tribunal to remit the matter to the Minister for reconsideration of the remaining criteria for the visa.

    DECISION

15. The Tribunal remits the application for Contributory Parent (Migrant) (Class CA) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 143 (Contributory Parent) visa:

    ·PIC 4005 for the purposes of cl.143.229 of Schedule 2 to the Regulations.

    Nicholas McGowan
    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.