Pham (Migration) - [2021] AATA 3841

Pham (Migration) [2021] AATA 3841 (23 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Van Sy Pham
VISA APPLICANTS:  Mrs Buu Linh Khuu
Mr Vi Dan Pham
Ms Phung Han Pham
CASE NUMBER:  2008123
HOME AFFAIRS REFERENCE(S):          BCC2016/168170
MEMBER:SM Justin Owen
DATE:23 September 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the visa applicants Contributory Parent (Migrant) (Class CA) visas.

Statement made on 23 September 2021 at 1:40pm

CATCHWORDS
MIGRATION – Contributory Parent (Migrant) (Class CA) visa – Subclass 143 (Contributory Parent) – health requirement – medical assessment – likely significant cost to the Australian community – further Medical Officer of the Commonwealth opinion – several requests for postponement – correct test applied – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cls 143.225, 143.229; Schedule 4; Public Interest Criteria 4005; r 2.25
CASES
Ramlu v MIMIA [2005] FMCA 1735
Robinson v MIMIA (2005) 148 FCR 182
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 11 March 2020 to refuse to grant the visa applicants Contributory Parent (Migrant) (Class CA) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 11 January 2016. The delegate refused to grant the visa on the basis that the second named visa applicant, Mr Vi Dan Pham (now referred to as the visa applicant), did not satisfy cl.143.225 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.
The Tribunal exercised its discretion to hold the hearing by teleconference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the review applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the review applicant was given a fair opportunity to give evidence and present arguments.
The review applicant appeared before the Tribunal on 17 September 2021 to give evidence and present arguments.
The review applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Consideration of claims and evidence
At the time of decision, the visa applicant is 66 years-old. He is a Vietnamese national. An application was made for a Contributory Parent (Subclass 143) visa for himself, his wife Mrs Buu Linh Khuu and his daughter Ms Phung Han Pham. The sponsor…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pham (Migration)

Details

AGLC: Pham (Migration) [2021] AATA 3841
Case: [2021] AATA 3841
Decision Date: 23 September 2021

CaseChat Overview and Summary

This matter concerned an application for a Contributory Parent (Migrant) (Class CA) visa, Subclass 143, made by a 66-year-old Vietnamese national, his wife, and his daughter. The sponsor was the visa applicant's Australian citizen son. The central issue before the Tribunal was whether the visa applicant met Public Interest Criterion (PIC) 4005, which pertains to health requirements.

The Tribunal was required to determine if the visa applicant had a disease or condition that would likely result in significant cost to the Australian community through the need for health care or community services, or prejudice access to such services for Australian citizens or permanent residents. This assessment was based on a Medical Officer of the Commonwealth (MOC) opinion, which found the applicant had advanced bowel cancer with recurrent metastases, likely to require ongoing chemotherapy, immunotherapy, and palliative care.

The Tribunal's reasoning affirmed the delegate's decision. The MOC's assessment, based on the applicant's condition and its likely progression, concluded that a hypothetical person with the same severity of illness would likely require substantial health care and pharmaceuticals, leading to significant costs for the Australian community. The Tribunal noted that no further medical evidence was provided by the review applicant in response to the MOC's findings.

Consequently, the Tribunal affirmed the decision not to grant the visa applicants Contributory Parent (Migrant) (Class CA) visas, as the primary visa applicant did not meet PIC 4005, rendering the other applicants ineligible under related criteria.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCEConsideration of claims and evidence At the time of decision, the visa applicant is 66 years-old. He is a Vietnamese national. An application was made for a Contributory Parent (Subclass 143) visa for himself, his wife Mrs Buu Linh Khuu and his daughter Ms Phung Han Pham. The sponsor of the visa, and review applicant in this hearing, is the visa applicant’s son Mr Van Sy Pham who is an Australian citizen. 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 visa applicant, in certain circumstances, to undergo medical assessment, and to be free of certain diseases or conditions that may impact on the community. Delegate’s decision On 7 January 2020 the Medical Officer of the Commonwealth found that the visa applicant did not meet the health requirement PIC 4005. The MOC assessed the visa applicant against PIC 4005 for a period of a permanent stay in Australia. The MOC found that the visa applicant had advanced bowel cancer. The MOC found that the visa applicant had an advanced form of bowel cancer with recurrent metastases to his mediastinal and retroperitoneal nodes. The MOC noted the visa applicant was being treated with chemotherapy and immunotherapy but only had partial response. The MOC considered that a hypothetical person with this disease or condition, at the same severity as the visa applicant, would be likely to require health care or community services during the period specified. These services were likely to include medical services and pharmaceuticals. The MOC found that a hypothetical person with the same condition of a similar severity as the visa applicant would be likely to recur and require further chemotherapy and medical services in the form of palliative care. The MOC noted the condition was likely to be progressive. The MOC found that a hypothetical person with this condition, at the same severity as the visa applicant, was likely to require health care or community services during the period specified. These services were likely to include medical services and pharmaceuticals. Provision of these health care and/or community services was likely to result in a significant cost to the Australian community in the areas of health care and/or community services. The delegate wrote to the review applicant inviting him to comment on or respond to the MOC of 7 January 2021. According to the decision record the review applicant provided, no further medical evidence was provided. Based on the evidence and information before the delegate, the delegate was satisfied the visa applicant did not meet PIC 4005. As the MOC found that the visa applicant did not meet the health requirement as outlined by PIC 4005, the delegate found the visa applicant did not meet cl.143.225 and refused the visa application on 11 March 2020.

Decision

Reasons for decision

As the second-named applicant or visa applicant, Mr Vi Dan Pham, does not meet PIC 4005 for the reasons outlined previously in this decision record, and does not satisfy the criteria for the visa, the first-named and third-named visa applicants are subsequently unable to meet cl.143.229. The Tribunal must therefore affirm the decision under review in relation to the first-named and third-named visa applicants. DECISION The Tribunal affirms the decision not to grant the visa applicants Contributory Parent (Migrant) (Class CA) visas.Justin OwenSenior MemberATTACHMENTMigration Regulations 1994Schedule 44005(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.

Ratio Decidendi

Legal Principle Established

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