Namdhari (Migration)

[2018] AATA 2321

Namdhari (Migration) [2018] AATA 2321 (30 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Nirmal Singh Namdhari
Mrs Surinder Kaur
Miss Mandeep Kaur

CASE NUMBER:  1607086

DIBP REFERENCE(S):  CLF2014/132948

MEMBER:Mary Urquhart

DATE:30 May 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Aged Parent (Residence) (Class BP) visas.

Statement made on 30 May 2018 at 2:39pm

CATCHWORDS
Migration – Aged Parent (Residence) (Class BP) visa – Subclass 804 (Aged Parent) – Health criteria – MOC opinion – Bilateral hearing impairment – Decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 2.25A, Schedule 2 c 804.226, 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 9 May 2016 to refuse to grant the applicants Aged Parent (Residence) (Class BP) visas under s.65 of the Migration Act 1958 (the Act).

2. The principal applicant, secondary applicant and dependent applicant applied for the visas on 3 November 2014. The delegate refused to grant the visa on the basis that as the dependent applicant (the applicant in this review) did not meet health criteria the first named applicant did not satisfy cl. cl.804.226 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 3 applicants appeared before the Tribunal on 30 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Navneet Kaur and Mr Aditya Singh The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Cl.804.226(1) requires each member of the family unit of the primary applicant who is an applicant for a sub-class 804 visa is a person who satisfies the public interest criteria PIC 4005. This may be referred to the “one fails all fail” criteria.

7. The issue in this review is whether the applicant Ms Mandeep Kaur, a national of India born 15 August 1975, meets Public Interest Criterion (PIC) 4005 as required by the criteria for the grant of the visa.

8. 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.

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

9. 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.

10. 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).

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

12. In determining whether a person meets PIC 4005(1)(a), (b) or (c) r.2.25A the Tribunal must 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).

    A MOC opinion

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

13. Department records report the applicant failed to meet health requirements. A report of an Officer of the Commonwealth (MOC) states the applicant was assessed on 24 April 2018 by a Medical Officer of the Commonwealth (MOC) as a 42 year old female with severe hearing impairment.  The opinion states the applicant has bilateral hearing impairment since birth-moderate to severe impairment in the right ear and severe to profound impairment in the left. She was unable to complete her education in school and has not worked in paid employment. Provision of services to a hypothetical person in Australia with the same condition as the applicant and at the same severity would be likely to require further medical services ( cochlear implant) and Commonwealth disability services (income support).The opinion states that her condition is likely to be permanent. And likely to result in a significant cost to the Australian community.

14. The opinion states her condition is a disease or condition that does not satisfy sub-paragraph 4005(1) (c) (ii) (A) in Schedule 4 of the regulations apply.

15. At the hearing the Tribunal discussed with the review applicant the history of the application including that following the refusal of the visa by the delegate a request for a further MOC opinion was made on 18 October 2017.

16. The Tribunal discussed with the review applicant and witnesses the recent finding of the MOC in April 2018. The Tribunal explained it was bound by the opinion of the MOC. The Tribunal explained that if the criteria for the visa are not met, the visa cannot be granted and the Tribunal must affirm the decision under review.

17. As discussed 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.

18. It was submitted by the representative on behalf of the parties that the MOC opinion given in February 2016 (on which the application was refused) and the MOC opinion in April 2018 were similar in wording. He sought to argue the MOC opinion was invalid as it differed from medical evidence contained in Medical reports submitted to the MOC. The Tribunal does not accept the submission.

19. The Tribunal has had regard to the Federal Court decisions and is satisfied that the MOC took account of the medical evidence provided and did not apply the wrong test in this matter.

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

21. For the reasons above, the Tribunal finds that the dependent applicant does not meet the criteria for a Subclass 804 visa. In respect of the other visa subclasses there is no material which would permit a finding that the applicant meets prescribed criteria for the visa sought.

22. The Tribunal has considerable sympathy for the applicant’s circumstances as the effect of being unable to meet the health criterion means she would need to return to India. It was clear on the evidence that the dependent applicant’s life is extremely limited. She spends her time doing housework and on the whole remains at home; walking the house and sometimes walking “locally”. The witnesses emphasised she could hear and required no hearing aids or devices. The Tribunal does not accept their assessments.

23. The Tribunal formed the view that little has been done to assist Ms Mandeep Kaur in regard to her disability. She has not been assisted to achieve any kind of independent life. However, these are not matters that the Tribunal can take into account in making a decision. As the applicant does not satisfy an essential criterion for the visa, the Tribunal has no choice but to affirm the decision under review. Only the Minister has the discretion to intervene and take these circumstances into account.

    Section 351   Minister May Substitute more favourable decision

24. Whilst the Tribunal is satisfied that the applicant's circumstances may invoke compassion no application for Ministerial intervention under Section 351of the Act was made to the Tribunal. This was  despite the Tribunal  asking the primary applicant and some witnesses their expectations of the review hearing in light of the MOC opinion. Be that as it may it is open to the applicants to approach the Minister and seek Ministerial Intervention for a more favourable outcome, but this is a matter for them and would be entirely at the Minister’s discretion.

25. As the dependent applicant has not satisfied the requirements of PIC 4005, the primary and secondary applicant cannot satisfy the requirements for the visa and the Tribunal must affirm the decision under review.

    DECISION

26. The Tribunal affirms the decision not to grant the applicants Aged Parent (Residence) (Class BP) visas.

    Mary Urquhart
    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.