PELDEN (Migration)

[2019] AATA 494

PELDEN (Migration) [2019] AATA 494 (14 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Jangchu PELDEN
Mr Tshering TSHERING
Mr Kinley Wangyel WANGCHUK
Mr Tenzin JUNGNEY

CASE NUMBER:  1705215

DIBP REFERENCE(S):  BCC2015/3938259

MEMBER:Jennifer Cripps Watts

DATE:14 March 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants  Regional Employer Nomination (Permanent) visas.

Statement made on 14 March 2019 at 12:26pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) visa – Health criteria not met – third applicant with medical condition – no exclusion provision for permanent visas – cost to the Australian community – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359A

Migration Regulations 1994, Schedule 2 cl 185.235, Schedule 4 PIC 4005 r 2.25A(3)

CASES
Robinson v MIMIA (2005) 148 FCR 182
Ramlu v MIMIA [2005] FMCA 1735

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 (the delegate) on 14 March 2017 to refuse to grant the applicants Regional Employer Nomination (Permanent) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 18 December 2015. The delegate refused to grant the visa on the basis that the first named applicant (now referred to as the applicant) did not satisfy cl.185.235 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 visas were refused on 14 March 2017.  The applicants applied for review on 19 March 2017, within time, and provided the Tribunal with a copy of the primary decision refusing the visas.  It was requested by the Tribunal that a further opinion of a Medical Officer of the Commonwealth (MOC) be obtained.  The applicant confirmed he wished to obtain a further MOC opinion and made the required payment.

4. An opinion from the MOC, on form 884 and dated 23 January 2019, was received by the Tribunal and, on 15 February 2019, the applicant was sent a s.359A letter attaching the MOC opinion, inviting him to comment or respond.  The MOC’s opinion was that the third-named applicant, Kinley Wangyel Wangchuk (Kinley), does not meet the health requirement, PIC 4005(1)(c)(ii)(A) in Schedule 4 to the Regulations. The applicant was informed that a response was due no later than 1 March 2019.  On 25 February 2019, the applicants responded through their migration agent that they all wish to attend a hearing to give oral evidence.  No written comment on the information was made in response to the s.359A letter.

5. The applicants appeared before the Tribunal on 14 March 2019 to give evidence and present arguments. Mrs Jangchu Pelden, Mr Tshering and Mr Tenzin Jungney all gave oral evidence.  Kinley also attended but did not give evidence. 

6. The applicants were represented in relation to the review by their registered migration agent, Abdul Hasib Khan, Migration Agent Registration Number 0427601.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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 for whom the MOC opinion has been provided, is Kinley, the third-named applicant and child of the primary and second-named applicant.

9. The primary applicant for a Subclass 186 visa must satisfy all criteria at the time a decision is made on the application.  On the evidence, the Tribunal is satisfied that it is not in dispute that the child, third-named applicant Kinley, is a member of the family unit of the applicant, Mrs Janchu Pelden.

10. Regulation 186.235 requires that the applicant satisfies, among other things, PIC 4005, and also that each member of the family unit of the applicant who is an application for a Subclass 186 visa satisfies PIC 4005 (cl.185.235(1) and (2)), unless it would be unreasonable to require the family member to undergo assessment in relation to the criteria (cl.185.235(3)).  The person, Kinley, is a member of the family unit of the primary applicant and is included in the visa application and he has already undergone the relevant medical assessment.  The applicant must meet PIC 4005 as required by r.185.235.  There is no claim made or evidence before the Tribunal that indicates it would be unreasonable to require the family member to undergo assessment.

11. The applicants were told at the beginning of the hearing that the Tribunal would consider the evidence in reaching a view about whether the most recent MOC opinion is valid.  They were also told that there are no waiver provisions where a visa is refused for failure to meet PIC 4005.  Submissions were made that the MOC opinion obtained in January 2019 found the applicant’s condition to be one of moderate functional impairment, compared to the 2016 MOC opinion that the applicant had cerebral palsy (which was not mentioned in the most recent MOC opinion).  The Tribunal acknowledges the difference in each of the MOC opinions.  The Tribunal explained that it cannot substitute its own findings relating to the applicant’s medical condition for those of the MOC and that it is the most recent MOC opinion that, if the Tribunal finds that it is valid, must be accepted as correct.

12. On the evidence before the Tribunal, in the current and most recent opinion of the MOC, dated 23 January 2019, Kinley’s medical issues are identified and described by the MOC as follows; the applicant is an 18 year old person with:

    a.Moderate functional impairment of unclear aetiology but with a history of premature birth and suspected hypoxic encephalopathy; and

    b.Both cognitive and hearing impairment.

13. The MOC’s opinion is that the condition, based on a hypothetical person with the same disease or condition, is likely to be permanent.

    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. Relevant in this matter, is that 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 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).

18. An opinion of the MOC was sought and obtained.  It is dated 23 January 2019.  A copy was provided to the applicant for comment or response and they attended the Tribunal hearing to respond by way of giving oral evidence.

    Is a MOC opinion required?

19. The visa is a permanent visa, Subclass 187.  An opinion of a MOC was obtained at the time of application.  On the review, the applicant has requested, and the Tribunal has been provided with, a further opinion of an MOC.

20. The Tribunal must take the (most recent) 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.

21. The MOC opinion dated 23 January 2019 includes that the MOC, in preparing the opinion, has had regard, but not limited themselves, to the following documents relating to Kinley:

    a.Report from Dr Aleya Begum dated 26 March 2014

    b.Reports from Australian Hearing dated 5 May 2015 and 22 June 2016

    c.Report from Jacqui Duffee, psychologist, dated 8 July 2014

    d.MRI report dated 13 December 2016

    e.Referral letter from Dr Mohan Thampi dated 8 September 2016

    f.Report from Noel Eastwood, psychologist, date 25 November 2017

    g.Report from Dr Ram Malhotra dated 17 July 2017

    h.Report from Dr Pradeep Balasubramanian dated 22 February 2003

    i.Report from Dr Kinzang Tshering dated 25 November 2011

    j.Letter from Abdul H Khan dated 10 April 2018 and 17 December 2018

    k.Report of the examination conducted by the Panel Member on 17 March 2016

22. The MOC mentions in the opinion that other documentary relating to financial matters and case management were not relevant to the assessment.

23. The MOC states in the MOC opinion that:

    ‘The applicant has a moderate functional impairment of unclear aetiology but with a history of premature birth and suspected hypoxic encephalopathy, with both cognitive and hearing impairment.  Provision of services to a hypothetical person with the applicant’s condition:  A hypothetical person with the same condition of a similar severity would requirement lifelong Commonwealth and state disability services.  This condition is likely to be Permanent.

    I consider that a hypothetical person with this disease or condition, at the same severity as the applicant, would be likely to require health care or community services during the period specified above.

    These services would be likely to include:

    State disability services

    Commonwealth disability services.

    Provision of these health care and/or community services would be likely to result in a significant cost to the Australian community in the areas of health care and/or community services.’

24. The MOC then goes on to specify the information and documents they had regard to in reaching the opinion, listed above.

25. On the evidence, the Tribunal is satisfied that the MOC identified the medical condition/s to which the public interest criterion has been applied, and the form or level of the condition suffered by the applicant, and is satisfied that the MOC applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition.

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

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

    Secondary applicants

28. There is no information before the Tribunal that suggests any or all secondary applicants do not remain members of the primary applicant’s family unit.

29. As the primary applicant is found not to have met the prescribed criteria for the grant of the visa, the secondary applicants, as members of her family unit cannot satisfy the secondary criteria and the Tribunal must also affirm the decision to refuse their visas.

    Request for referral to the Minister

30. At the hearing, the applicant requested that, in the event of an unfavourable decision, the Tribunal refer the matter to the Minister.  The Tribunal acknowledges the request. 

31. The applicants are citizens of Bhutan.  They came to Australia in 2012 travelling on student visas.  Mrs Pelden said she was the primary visa holder and that she brought her family with her.  She was asked if Kinley had undergone a medical check for the grant of the student visa and said that he had.  The family has lived in Australia for about seven years holding temporary visas and the current bridging visas they hold relate to the Subclass 187 permanent visas that were refused on 14 March 2017.  The applicant holds qualifications in nursing and childcare.  Kinley is 17 years of age and attends school.  He is in year 11.  The applicant and her husband said they are both hard working.  The Tribunal has no reason to doubt this.

32. At the hearing three of the applicants, Mrs Pelden, Mr Tshering and Mr Jungney, gave oral evidence in support of the request for the Tribunal to refer the matter to the Minister.  The migration agent also made oral submissions.  Essentially, they submitted that the applicant, Kinley, is deaf and other than requiring a hearing aid, he would not be a burden to the community in terms of cost or services that may be provided to him.  Or at least, that the costs would be minimal in his circumstances.  They spoke of Kinley’s success at school and that his teachers give positive reports about his contribution to the classes he is in. They said he participates in sports such as archery and soccer and that he enjoys cycling, and that he has settled well into his life in Australia.  The applicant said that when they lived in Bhutan, Kinley did not communicate effectively and now he does, by signing and in other ways as well.  Additional evidence that was provided and that is on the file has been considered by the Tribunal in support of the request to refer the matter to the Minister. 

33. Under the Ministerial guidelines, the Tribunal may refer a case to the Department if the Tribunal member believes there are issues involved that fall within the unique or exceptional circumstances described in section 4 of the guidelines. The Tribunal has carefully considered the submissions and evidence but has decided not to make a specific recommendation of referral.  As there will be an appropriate existing decision in the applicants' case from the Administration Appeals Tribunal (Migration and Refugee Division), the applicant will be able to make a direct request to the Department for Ministerial intervention and have the request assessed against the Ministerial guidelines if she chooses to.

    DECISION

34. The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) visas.

    Jennifer Cripps Watts
    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.