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

1. 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).

2. 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.

3. 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.

4. The review applicant appeared before the Tribunal on 17 September 2021 to give evidence and present arguments.

5. The review applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

6. 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

7. 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.  

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 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

9. 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. 

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. As the visa applicant’s visa was refused, the delegate also refused the other two visa applicants, his wife Mrs Buu Linh Khuu and his daughter Ms Phung Han Pham.  All members of the family unit of the visa applicant were required to meet the health requirements of PIC 4005.  Given the visa applicant did not meet PIC 4005 and was subsequently refused, the visa applicants Mrs Buu Linh Khuu and Ms Phung Han Pham were also refused on 11 March 2020. 

16. On 11 May 2020 the review applicant lodged with the Tribunal a valid application for review of the decision by the delegate to refuse the visa applications.

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

17. 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.

18. 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.

19. 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).

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

21. 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 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).

    Is a MOC opinion required?

22. 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.

23. On 21 July 2020 the Tribunal wrote to the review applicant through his representative noting the decision to refuse to grant a visa was based on an opinion of a Medical Officer of the Commonwealth that the visa applicant did not meet the relevant health criterion.  A copy of the opinion dated 7 January 2020 was provided.  The Tribunal invited the review applicant to obtain a further opinion from the Medical Officer of the Commonwealth. The Tribunal requested that the completed forms for a further opinion from the MOC be returned by 21 August 2020. 

24. On 17 August 2020 the review applicant responded through his representative, requesting an extension of time to seek further medical opinion.  The Tribunal agreed, granting an extension until the review applicant was able to seek the medical opinion. 

25. On 9 December 2020 the Tribunal wrote to the review applicant through his representative noting a substantial period of time had elapsed and asking for an update. 

26. No response was received by the Tribunal until 4 March 2021, almost 4 months later where payment was provided to obtain a further opinion from the MOC.  Correspondence from the visa applicant’s oncologist dated 17 February 2021 was also submitted. 

27. On 19 March 2021 the Tribunal wrote to the Medical Officer of the Commonwealth informing them that the applicant wished to obtain a further MOC and had paid the requisite fees. All relevant medical documentation currently before the Tribunal was supplied to the MOC, including the report from the applicant’s oncologist.   

28. On 26 March 2021 the visa applicant was assessed by a Senior Medical Officer of the Commonwealth. 

29. On 29 March 2021 the Tribunal received correspondence from the Department noting that the visa applicant had been assessed. 

30. On 3 August 2021 the Tribunal wrote to the review applicant under the relevant provisions inviting him to comment or respond to the opinion by the Review Medical Officer of the Commonwealth dated 26 March 2021.   The Tribunal noted that at the request of the review applicant, the Tribunal had arranged a further opinion by the Review Medical Officer of the Commonwealth (RMOC).  The Tribunal noted the visa applicant did not meet the health requirements in PIC 4005 in the RMOC.  The Tribunal informed the review applicant that the RMOC opinion (which was also provided to the applicant in the Tribunal’s correspondence) stated: 

    The applicant is a 66 year old person with: advanced bowel cancer.

    Form and severity of the applicant’s condition: The applicant has an advanced form of bowel cancer with recurrent metastases to his mediastinal and retroperitoneal nodes.  He is being treated with chemotherapy and immunotherapy but the condition is advanced and further progression is likely. 

    Provision of services to a hypothetical person with the applicant’s condition: A hypothetical person with the same condition of a similar severity would be likely to recur and require further chemotherapy and medical services in the form of palliative care.  This condition is likely to be Progressive.      

    I consider that a hypothetical person with this disease or condition, with 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: Chemotherapy; Medical 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. 

31. The Tribunal noted in its correspondence of 3 August 2021 to the review applicant that this information was relevant because the Tribunal may find that the applicants did not meet the health requirements in PIC 4005.  The Tribunal noted that if the opinion was valid, it was binding on the Tribunal.  The Tribunal noted that it may then find that the applicants were subsequently not entitled to the grant of the Contributory Parent visas for which they had applied.   The review applicant was invited to give comments on or respond to this information in writing.

32. The review applicant responded through his representative on 17 August 2021, requesting an extension of time to provide a response.  The Tribunal agreed to an extension until 31 August 2021.

33. On 31 August 2021 the review applicant replied through his representative, providing a further letter from the visa applicant’s oncologist Dr Sem Liew dated 9 August 2021.  The correspondence again noted the visa applicant was diagnosed with Colon cancer – metastatic – Stage IV.  The correspondence stated he was the visa applicant’s treating oncologist.  He stated the visa applicant at present was off chemotherapy and the visa applicant’s disease was being monitored with serial blood tests and imaging.  The applicant’s representative stated the review applicant had tried to get further documents, but it wasn’t possible under the current circumstances.  The review applicant’s representative wrote that the visa applicant’s family had requested their application be put “on hold” so the primary applicant (presumably the visa applicant’s wife) did not lose her eligibility to proceed with the application.  The parties requested that the Tribunal could compassionately delay making a decision.   

34. Whilst the Tribunal sympathises with the review applicant and his family and understands their desire to delay proceedings, the Tribunal notes its aim to make its review process accessible, fair, just, economical, informal and quick.  A valid RMOC is before the Tribunal.  The Tribunal has provided considerable extensions of time to the review applicant to provide further medical opinions and information as part of the review process. The Tribunal was not prepared, on the basis of the evidence and claims before it, to delay the review process further. 

35. At the Tribunal’s hearing the review applicant stated that the visa applicant was no longer on chemotherapy and was doing well.  He said the visa applicant didn’t require any special support and was staying home with the review applicant and his family during the pandemic, doing things around the home like helping out with the housework.  He stated that the visa applicant would see his oncologist again in late October where a CT scan would be taken to examine his condition.  He stated he wished to present the results to the Tribunal. 

36. The review applicant stated that the visa applicant’s condition would get worse.  He explained they did not know when it would get worse but it would happen at some point. He expressed his desire to see the visa applicant enjoy his time in Australia with his family.  He stated that he understood that the Tribunal did not have the ability to waive the PIC 4005 requirements.  The review applicant pointed out the visa applicant had family and services to support himself, including health insurance to ensure he was not a burden on the Australian community.      

37. The review applicant’s representative reiterated that there was an understanding that no waiver provision existed in this review. The review applicant’s representative has expressed her concern previously on the impact of refusal on the application of the “primary applicant”, the visa applicant’s wife.  She urged the Tribunal to delay making a decision and to wait for the oncologist’s next report and reiterated the visa applicant was no longer undertaking chemotherapy.  The review applicant’s representative stated that if that was unfavourable then the parties would look at making the relevant approaches for Ministerial Intervention in this matter. 

38. The Tribunal has considered the submissions of the review applicant and his representative in relation to this matter and their desire for the Tribunal to delay making a decision in this matter.  The Tribunal is satisfied that the visa applicant lives with the review applicant and his family.  The Tribunal is satisfied that the review applicant is caring for the visa applicant, and the review applicant would provide ongoing support to the visa applicant if he were granted a visa to remain in Australia.  

39. However, these are not matters that the Tribunal is able to take into account in making its decision in relation to the review of the Subclass 143 visa application. If the visa applicant does not satisfy an essential criterion for the visa – in this case PIC 4005 –  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. No formal request was made to the Tribunal to refer this matter: the Tribunal notes that the review applicant and visa applicant may subsequently decide to do so. 

40. The Tribunal notes the review applicant’s statements to delay making a decision.  The Tribunal is not prepared to delay making a decision on this matter.  The Tribunal notes that the visa applicant was refused as not meeting PIC 4005 over 18 months ago and applied for review with the Tribunal in May last year.  The Tribunal has given significant extensions to the parties to make their submissions to the Tribunal.  The review applicant and visa applicant have been provided ample time to supply any further documentation they required in support of their case.  The Tribunal furthermore notes its role in this review is to be satisfied of the validity of the MOC.

41. The Tribunal notes that the Review Medical Officer of the Commonwealth (RMOC) has deemed the visa applicant did not meet the health requirements under PIC4005(c)(ii)(A).  

42. The Tribunal is satisfied the RMOC has applied the correct test in forming their opinion.  The MOC of 26 March 2021 identifies the medical condition to which the public interest criterion has been applied. The form or level of the condition suffered by the visa applicant has been identified. The RMOC has applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition.

43. The RMOC notes a hypothetical person with this condition, at the same severity as the visa applicant, is likely to require health care or community services for the period of a permanent stay in Australia.  The MOC states that the provision of these health care and/or community services would be likely to result in a significant cost to the Australian community in the area of health care and/or community services.  The opinion of the MOC was based upon available medical reports, assessments and associated investigations.

44. The Tribunal has had regard to the decisions in Robinson v MIMIA (2005) 148 FCR 182 and Ramlu v MIMIA [2005] FMCA 1735 and is satisfied that the RMOC did not apply the wrong test in this matter.

1. The Tribunal is satisfied that the RMOC opinion identifies the visa applicant’s condition to which the public interest criteria have been applied, has ascertained the form or level of the condition suffered by the visa applicant and has applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition. 

2. There is no provision for a waiver of public interest criteria 4005.

3. Accordingly, based on the opinion of the MOC dated 26 March 2021, the visa applicant does not satisfy public interest criterion 4005(1)(c) and on this basis does not meet the criteria for the grant of a Contributory Parent (Migrant) (Class CA) visa. As set out above, in accordance with r.2.25A(3), the Tribunal must take the MOC opinion to be correct.

4. As the visa applicant has not satisfied PIC 4005, he is unable to meet cl.143.225.

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

   The first-named and third-named visa applicants

6. Cl.143.229 requires that each member of the family unit who is an applicant must satisfy the public interest criteria 4005.

7. The Review Medical Officer of the Commonwealth (RMOC) deemed on 26 March 2021 that the visa applicant, Mr Vi Dan Pham, did not meet the health requirements under PIC4005(c)(ii)(A).  The Tribunal is satisfied the RMOC’s opinion was valid. 

8. The first-named visa applicant is the wife of the visa applicant, Mrs Buu Linh Khuu.  The third-named visa applicant is the visa applicant’s daughter, Ms Phung Han Pham.

9. 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

10. The Tribunal affirms the decision not to grant the visa applicants Contributory Parent (Migrant) (Class CA) visas.

    Justin Owen
    Senior 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.