Oboro (Migration)

[2022] AATA 2658

Oboro (Migration) [2022] AATA 2658 (23 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Dr Omolola Folasade Oboro
Dr Victor Oyenkekaibe Oboro
Miss Taiwo Oboro
Miss Victoria Nwankaego Oboro
Master Daniel Chukwuemeka Oboro
Mr Lawrence Chika Oboro

CASE NUMBER:  2101019

HOME AFFAIRS REFERENCE(S):          BCC2020/2472958

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:         23 June 2022 at 2:48 pm (VIC time)

DATE OF WRITTEN RECORD:                4 July 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions under review.

Statement made on 04 July 2022 at 4:49pm

CATCHWORDS
MIGRATION – Skilled Nomination (Permanent) (Class SN) visa – Subclass 190 (Skilled – Nominated) – medical criteria – condition likely to result in significant cost to community – child secondary applicant’s developmental condition – opinion of medical officer of commonwealth taken as correct – no discretion to waive criterion or consider circumstances – parents specialist and general medical practitioners in remote area – significant improvement in child’s condition – referred for ministerial consideration – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351(1)
Migration Regulations 1994 (Cth), Schedule 2, cl 190.216, Schedule 4, criterion 4005

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 14 January 2021 to refuse to grant the visa applicants Skilled Nominated (Permanent) Subclass 190 visas under the Migration Act 1958 (Cth) (the Act).

2. At the hearing on 23 June 2022 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. Dr Omolola Oboro you applied for a Subclass 190 Skilled Nominated visa on 15 October 2020.  On 14 January 2021 a delegate for the Minister made the decision to refuse your visa on the basis she found there was evidence in the form of an opinion of a Medical Officer of the Commonwealth (MOC) that said that your son Lawrence, who is an eight year old child, suffered from a condition, being autism, that would require ongoing support and help at an expense to Australia and, therefore, found that you did not satisfy PIC 4005.  Therefore, your application was refused.

4. You appealed that decision to be reviewed by this Tribunal and with your application you included a copy of the primary decision.  It was apparent that you had read and clearly understood the decision and that was apparent from a number of things, not the least of which were the substantial number of submissions made on your behalf and by you about the issues in this case.

5. As I said to you, this is not a matter in which the Tribunal has discretion.  The Tribunal must consider whether or not the MOC opinion provided is valid, and if so then that opinion must be accepted by the Tribunal.  For a MOC opinion to be valid it needs to have asked the correct questions and to have considered all the issues. 

6. There were a number of medical opinions.  The original MOC opinion was written in 2018.  There were opinions in January and October 2020 and the most recent MOC opinion was dated 31 March 2021.  That opinion stated it had been made with regard to a range of previous information including specialist reports from the paediatrician in 2018, a letter from the primary applicant here, the mother of the child Lawrence in question and it is noted that the primary applicant, Dr Omolola Oboro is a child psychiatrist who has chosen to work in a remote area of Australia being in the Pilbara region.  I am currently reading from a reference from the Chief Executive of the government of Western Australia that was sent to the Minister.  It says that:

   Western Australian Country Health engages Dr Oboro through a medical services agreement as a fulltime senior medical practitioner in psychiatry in the Pilbara, working in the child and adolescent mental health sector.

   Dr Oboro is the only fulltime psychiatric practitioner for the entire Pilbara region with only one other psychiatry practitioner employed part-time, and I believe that other practitioner referred to is the doctor from whom we received a reference earlier on today.  There is no question that Australia, particularly the Pilbara region, would be very significantly disadvantaged if this decision were to be upheld and the primary applicant and her family were forced to leave Australia.

7. The question for the Tribunal is whether or not the MOC opinion considered all of the issues and reading from that opinion which refers to all the medical reports including recent specialist reports from a paediatrician in November 2020, and the findings of a panel physician, Dr Holzhauzer, in January 2021.  It states:

   There is a consistent finding of significant speech and communication impairment and specialist recommendation of active target intervention services.

8. From the evidence available, the Tribunal is satisfied that the MOC opinion is valid.  That opinion states the applicant does not meet the health requirement and it refers to Lawrence Chika Oboro, birth date [Date], is the child of the primary applicant, Dr Omolola Oboro and her husband Dr Victor Oboro who is also a medical practitioner in general practice in a busy general practice where he sees a very large number of patients on a daily basis.

9. As I said this is not a matter in which the Tribunal has discretion. Based on the MOC opinion the Tribunal finds that Lawrence Oboro does not satisfy PIC 4005 for the purposes of cl. 190.216 and as PIC 4005 is a “one-in/all-in” provision meaning that if one member of the family unit fails to satisfy PIC 4005, all members of the family are deemed not to meet the condition, it means that the rest of the family do not satisfy PIC 4005 and, therefore, the primary applicant, Dr Omolola Oboro does not satisfy 190.216 which is a prerequisite for the grant of a visa. 

10. In the circumstances, the Tribunal must affirm the decision under review.

11. The Tribunal notes there has been a request that the matter be referred for ministerial intervention pursuant to section 351(1), a section that gives the Minister the personal non-compellable power to replace a decision of the Tribunal with a decision that is more favourable to the applicant if the Minister thinks it is in the public interest to do so.

12. Historically, I am reticent to provide section 351 ministerial referrals, however, this is a case in which I am making an exception and I do so because I believe there are unique and exceptional circumstances that mean that the Minister should consider this case.

13. The Tribunal notes you have submitted copies of emails from the Chief Executive of the government of Western Australia Country Health Service and from Senator Pratt from Western Australia the originals of which have been sent directly to the Minister.

14. The circumstances are that the primary applicant is a child psychiatrist with very specific specialisation which she provides to the people, predominantly children and adolescents of the Pilbara, a large very lightly populated region of Western Australia, and if she were not there all the evidence suggests it would be of a huge loss to that area.  Equally, her husband is a GP providing services to up to 50 patients a day which is clearly in this time a service that is immensely valuable.

15. Recognising that in considering the primary decision the delegate must consider the hypothetical person taking out the requirement or perhaps even the opportunity to look at the circumstances iof a specific individual or applicant, in this case it is difficult to do because the child has been found to have moderate autism and it happens to be a subject in which his mother has very significant specialisation, perhaps unparalleled in the area.  Up until now his mother has provided the medical support that is required and assures the Tribunal that she will continue to do so.

16. Additionally, there is a substantial gap between the time of different assessments and there is no question there has been significant increase in the health and wellbeing of Lawrence and a significant diminishing of his evidence of autism. 

17. Evidence has also been provided which shows that recent objective analysis shows that the severity of autism can change substantially in young people, particularly up until the age of 11. The results of this now well accepted recent research conflicts with the traditional medical view which was that the severity of diagnosis when it was first made was how you would be for the rest of your life.  Recent studies have shown that is not the case and, in fact, there is evidence of cases where people previously diagnosed with autism have after some years been found to be autism-free.

18. On those combined grounds the parents provide support for the child which significantly decreases the cost to the Australian community.  But leaving that aside for the moment, the exceptional circumstances that prevail are the work that the parents do, have done and continue to do in Western Australia.  It is because of those circumstances supported by the other things that I mentioned that I believe that this matter should be referred to the Minister for consideration of ministerial intervention under section 351.

19. Therefore, my decision that this matter is to be affirmed, however, with a recommendation that it be referred to the Minister for consideration under section 351. 

20. This decision was made at 2.48 pm on this, 23 June 2022.  Thank you for your time here today, Dr Omolola Oboro.  Thank you, Dr Victor Oboro.  Thank you, Dr McNeill.  This hearing is concluded.

    DECISION

21. The Tribunal affirms the decisions under review.

    Tim Connellan
    Member