Perveen (Migration)

[2024] AATA 673

Perveen (Migration) [2024] AATA 673 (24 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Khalida Perveen

CASE NUMBER:  2103681

HOME AFFAIRS REFERENCE(S):          BCC2020/1901578

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Peter Emmerton

DATE:24 January 2024

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for a Sponsored Parent (Temporary) (Class GH) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 870 - Sponsored Parent (Temporary) visa:

·PIC 4007(2)(b) for the purposes of cl 870.228(3) of Schedule 2 to the Regulations.

Statement made on 31 January 2024 at 12:01pm

CATCHWORDS

MIGRATION ­– Sponsored Parent (Temporary) visa – subclass 870 visa –– applicant does not satisfy PIC 4007 – valid MOC opinion – a substantial potential cost to the Australian community associated with appropriately supporting the applicant – family’s capacity to financially cover any of medical costs – there are strong compassionate considerations affecting Australian citizens – PIC 4007(1)(c) may be waived subject to the applicant satisfying all other requirements for the visa – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5, 65, 360

Migration Regulations 1994, r 2.25, Schedule 2, cl 870.228, Schedule 4, Public Interest Criterion (‘PIC’) 4007

CASES
Bui v MIMA (1999) 85 FCR 134
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 Home Affairs on 12 March 2021 to refuse to grant the applicant a Sponsored Parent (Temporary) (Class GH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 14 July 2020. The delegate refused to grant the visa as the applicant did not satisfy cl 870.228(3) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4007 of Schedule 4 to the Regulations was not met.

3. The applicant appeared before the Tribunal on 31 January 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Naila Khan, the visa applicant’s daughter and Mr Imran Kahn the visa applicant’s son.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal has read and carefully considered all the evidence previously provided to the delegate and the Department.

6. The Tribunal has read and carefully considered all the evidence provided to it as detailed below.

   • New MOC Outcome 11 January 2024
   • Letters of Naila Khan, 19 January 2024
   • Statutory declaration of Naila Khan, 22 December 2023
   • ING Loan Statement, N Khan, 1 January 2023 to 31 December 2023 & Transactions
   • N A Khan, Third Quarter Rates, City of Marion 2023/2024
   • Naila Khan Income Statements 2022-2023 & Super Fund Details
   • N A Khan Earnings Advice, Department of Education SA 23 November & December 2023
   • Letter of Rachel Turnbull, Trott Park Kindergarten, Dept of Education, undated
   • Letter of Maureen O’Donnell, Trott Park Kindergarten Dept of Education, undated
   • Letter of Tursinay Muhammad, undated
   • MOC Outcome 20 October 2020
   • Letter of Dr Alexander Rodgers, SA Group of Specialists, 21 September 2023
   • Submission letter of Naila Khan, 21 December 2023
   • Copy of Naila Khan Stat Dec
   • SA Health letter, Peter Litwin, General Medical Registrar, Royal Adelaide Hospital, 14 October 2022
   • Letter of Dr Tim Bright, Flinders Medical Centre, 23 December 2020
   • Letter of Lawrence Kim, Radiation Oncologist, 17 December 2020
   • Letter of Carol Jonas, Patient Accounts Officer, Genesis Care, 14 October 2020 & Tax Receipts
   • Letter of Dr Niladri Saha, Eyemedics, May 5 2022
   • Kingswood Eye Centre Referral, printed 17 November 2022
   • Adelaide Day Surgery, Informed Financial Consent
   • BUPA Overseas Visitor Cover 28 December 2023
   • Diagnosis of Dr Tim Slimming, Orthopaedics SA, 3 October 2023
   • Additional family photographs, 29 January 2024

7. The issue in this review is whether the visa applicant meets Public Interest Criterion (PIC) 4007 as required by the criteria for the grant of the visa. Public Interest Criterion 4007, 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. This last requirement may be waived in certain circumstances. The applicant in this case was assessed by the MOC to have the Moderate Consequences of Stroke.

   Is the applicant free from the relevant diseases or conditions (PIC 4007(1)(a), (b), (c))?

8. Clauses 4007(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. The Tribunal is satisfied that the applicants is 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. Therefore, they meet the requirements of PIC 4007(1)(a) and (b).

9. Clause 4007(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.

10. For specified temporary visas, certain specified health care and community services are excluded from this consideration: PIC 4007(1B). The requirement may also be waived in certain circumstances.

11. In this case the temporary visa the applicant is seeking is specified in Legislative Instrument LIN 22/014. As such health care and community services listed in the instrument LIN22/014 are excluded from consideration.

    Specified health care and community services for subclauses 4005(3) and 4007(1B) of Schedule 4 to the Regulations

12. The following health care and community services are specified: (a) social security payments; (b) benefits derived from holding a health care card or pensioner concession card; (c) provision of pharmaceuticals listed under the pharmaceuticals benefits scheme that if the person ceases to take would not be seriously detrimental to their life or wellbeing; (d) services provided under the National Disability Insurance Scheme.

13. In determining whether a person meets PIC 4007(1)(a), (b) or (c), reg 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: reg 2.25A(3).

    Is a MOC opinion required?

14. 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.

15. The Tribunal is satisfied that the MOC Opinion is valid.

16. The Tribunal is 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 has identified the medical condition to which the public interest criterion has been applied and stated the form or level of the condition suffered by the applicant. The MOC has applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition. The MOC Opinion is for the relevant 3-year period.

17. It is further noted by the Tribunal that the provision of any health care or services is unlikely to prejudice access of an Australian citizen or permanent resident to health care or community services. This was likewise identified in the earlier no longer current MOC Opinions.

18. On 25 January 2024 the MOC provided the following MOC opinion.

    ‘The applicant has been assessed against Public Interest Criterion (PIC) 4007 [see attached extract] for the period of 3 years.

    The applicant does not satisfy sub-subparagraph PIC 4007(1)(c)(ii)(A) in Schedule 4 to the Migration Regulations.
    At the time of visa application, the applicant was a 65 year old person. During the health assessment, this applicant has been assessed with:

    - Moderate Consequences of stroke

    .
    Form and severity of the applicant's condition: the applicant has moderate functional impairment after a stroke as evidenced by right hemiparesis and urinary incontinence with the requirement of a suprapubic urinary catheter. Besides, her mobility has further limited by recent left arm fractures after falls. Currently, she mobilises with a walking aid or wheelchair and requires significant assistance or a carer for activities of daily living. Provision of services to a hypothetical person in Australia with the same condition as the applicant at the same severity: a hypothetical person in Australia with the same condition as the applicant at the same severity would be likely to require community services including
    but not limited to home care package. 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:

    Community care 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.

    Estimated total cost is $179,430.00

    Breakdown as follows:

    Community care services - $660.00 x 1.0 Units
    ACAT/ACAS assessment; Cost estimate based on Supported Care
    Notes for Guidance November 2023, including but not limited to
    scenario 3. $660.00

    Community care services - $59,590.00 x 3 Years
    HCP Level 4; Cost estimate based on Supported Care Notes for
    Guidance November 2023, including but not limited to scenario 3. $179,430.00

    This costing is calculated on the basis of the applicant’s specific condition, and guided by the
    information contained within the Department of Home Affairs’ Notes for Guidance.

    A visa applicant cannot be found to satisfy the sub paragraph referred to above if they have a disease or condition that is likely to:

    ● result in a significant cost to the Australian community in the areas of health care or community services.’…

19. The Tribunal has carefully considered the information provided by the MOC Report which indicates a substantial potential cost to the Australian community associated with appropriately supporting the temporary visa applicant.

20. It in addition observes that many of the healthcare and service costs are excluded by the provision of LIN 22/014 as outlined in paragraph 12 of this decision.

21. Based on the opinion of the MOC and the applicant’s submission, the Tribunal determines the applicant does not satisfy PIC 4007(1)(c). 

    Should the requirements of PIC4007(1)(c) be waived?

22. The requirement in PIC 4007(1)(c) to be free of a disease or condition that would impact on health or community services, may be waived if among other things, the decision maker is satisfied that the granting of the visa would be unlikely to result in either ‘undue cost’ to the Australian community or ‘undue prejudice’ to the access to health care or community services of an Australian citizen or permanent resident: 4007(2).

23. The evaluative judgment of whether the cost to the Australian community or prejudice to others is ‘undue’ may import considerations of compassionate or other circumstances: Bui v MIMA (1999) 85 FCR 134 (‘Bui’) at 47. Over and above the consideration of the likelihood that cost or prejudice will be ‘undue’ there is also the discretionary element of the ministerial waiver. And within that discretion, compassionate circumstances or compelling circumstances may be relevant: Bui at 47. Department policy provides guidance on factors that may be relevant to this, including: the need for, and availability of, a live organ donor; an ability to access private health treatment; close family, social, emotional and community ties to Australia; the impact on any Australian citizen minor children; occupational skills of the applicant or family members; and the potential contribution to Australia by the applicant or family members.

24. As stated in paragraph 6 of this decision there is a substantial body of evidence provided to indicate that the medical costs of the applicant and home care arrangements are not falling as a burden on the Australian community.

25. There are multiple letters from the treating Physicians and Specialists and their ancillary supporting technology practitioners that clearly indicate the visa applicant’s costs not covered by her substantial Visitor Medical Insurance policy with BUPA are being met by the applicant and her family’s financial resources. This was tested in the hearing and the Tribunal is satisfied that both the applicant and her daughter were able to demonstrate that this is what has taken place and can be expected to continue. It was discussed at the hearing that the private hospital stays are principally covered by the BUPA medical insurance.

26. The Tribunal notes the Statutory Declaration made by the visa applicant’s daughter, dated 22 December 2023, which states she will take care of all her mother’s medical care and home care needs and costs. If necessary, she is prepared to sell her home to fulfill this obligation. The Tribunal has been provided with a copy of the visa applicant’s daughters current Council Rates and current mortgage loan account which show there is adequate equity in the home to fulfil this promise in the unlikely circumstance it was necessary. It notes that the substantial comprehensive visitor medical cover insurance policy held by the applicant makes such an event unlikely. This was verified at the hearing.

27. The Tribunal has been provided with financial statements and Pay Slips for the applicant’s daughter. It has assessed that she has a substantial permanent position with the South Australian Education Department at a level of remuneration that indicates her capacity to meet any costs associated with her mother’s care as claimed. The visa applicant’s son who has substantial full-time employment likewise offered his pay Slips at the hearing to further demonstrate the family’s capacity to financially cover any of her costs.

28. It is noted that applicant lives with and is cared for by her daughter and granddaughter when in Australia. This care is supplemented by her son, his wife and his extended family. It is likewise observed this is a temporary visa, to allow the applicant to spend time with her family here in Australia as well as spending time with her aged infirm mother and aging siblings in her home country. She has substantial personal ties within her home country which subsequently supports a view that the applicant is not seeking a permanent residency. It is noted that the applicant wishes to return to Pakistan to live but wants the option to enable her to also visit her family in Australia when possible.

29. The Tribunal is satisfied by the written statements provided by the visa applicant’s daughter and adult granddaughter, (a Pharmacist), both of whom care for her needs in their home, that they are currently and will continue to care for the applicant’s needs in their shared home. There is no Home Care Package support provided or utilised. This was pursued under oath during the hearing to corroborate the claims. The Tribunal accepts as accurate the written claims by both the applicant’s daughter and granddaughter that strong cultural norms indicate that care by the family is expected and undertaken. The alternative is not even a possible consideration. Again, this was explored during the hearing and corroborated to the Tribunal’s satisfaction.

30. It is evident to the Tribunal that there are strong very close family and emotional ties to Australia. This is demonstrated in the letters of support from friends and work colleagues as well as the medical practitioners attending to the visa applicant, in addition to the letters provided by the daughter and granddaughter. The demeanour of the applicant’s daughter, son and stepdaughter throughout the hearing in conjunction with the testimony of the applicant herself leaves the Tribunal in no doubt that to permanently separate this family in the twilight of the applicant’s life would be lacking in compassion and the Tribunal views this as compelling.

31. The Tribunal further notes that as per the evidence given at the hearing and previously in written form, to separate the visa applicant from her family on a permanent basis would cause the substantial extended Australian citizen members of the applicant’s family a great deal of distress and stress. In addition, the financial burden placed upon them so that they could have some contact with their mother in her final years of life is in the opinion of the Tribunal compelling and a cause for compassion.

32. Whist it is possible the granting of the visa could result in ‘undue cost’ to the Australian community, when considering the ‘hypothetical person’ as determined by the MOC, there is substantial evidence to reassure the Tribunal this has not taken place and is unlikely to take place in the foreseeable future.

33. The Tribunal is convinced there are strong compassionate considerations affecting Australian citizens in this case, namely the visa applicant’s daughter and granddaughter.

34. For these reasons, the Tribunal is satisfied that the granting of the visa would be unlikely to result in undue cost or undue prejudice within the terms of PIC4007(2)(b). Therefore PIC 4007(1)(c) may be waived subject to the applicant satisfying all other requirements for the visa.

35. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for the visa.

    DECISION

36. The Tribunal remits the application for a Sponsored Parent (Temporary) (Class GH) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 870 - Sponsored Parent (Temporary) visa:

    ·PIC 4007(2)(b) for the purposes of cl 870.228(3) of Schedule 2 to the Regulations.

    Peter Emmerton

    
    

    Member

    ATTACHMENT

    Migration Regulations 1994

    Schedule 4

    4007(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)      subject to subclause (2) — 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 (1A); 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.

    (1A)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.

    (1B)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 (1A)(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.

    (2)The Minister may waive the requirements of paragraph (1)(c) if.

    (a)     the applicant satisfies all other criteria for the grant of the visa applied for; and

    (b)     the Minister is satisfied that the granting of the visa would be unlikely to result in:

    (i)undue cost to the Australian community; or

    (ii)undue prejudice to the access to health care or community services of an Australian citizen or permanent resident.