Pine (Migration)

[2021] AATA 5631

Pine (Migration) [2021] AATA 5631 (25 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Susan Martha Pine
Mr Charles Victor Pine

CASE NUMBER:  1823807

HOME AFFAIRS REFERENCE(S):          CLF2015/34220

MEMBER:David Crawshay

DATE:25 June 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Aged Parent (Residence) (Class BP) visas.

Statement made on 25 June 2021 at 9:15am

CATCHWORDS

MIGRATION – Aged Parent (Residence) (Class BP) visa – Subclass 804 (Aged Parent) – health requirements – member of family unit – second applicant’s advanced chronic disease likely to require long-term specialist health-care services – cost to community and prejudice of access to citizens or permanent residents – treatment currently in short supply – private health insurance and assistance from family – age, deteriorating health and limited life expectancy – significant family ties to Australia and no family or home in home country – opinion of review medical officer of commonwealth taken as correct – no discretion to waive requirement – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A

Migration Regulations 1994 (Cth), r 2.25A(3), Schedule 2, cls 804.226, 804.322, Schedule 4, criterion 4005(1)(c)(ii), (3)

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 31 July 2018 to refuse to grant the applicants Aged Parent (Residence) (Class BP) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 10 June 2015. The delegate refused to grant the visas on two bases:

   ·

   Firstly, the delegate refused to grant the visa for the first-named applicant, Mrs Susan Martha Pine (now referred to as the applicant) because she did not satisfy cl.804.226 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Specifically, the delegate was not satisfied that each member of the family unit of the applicant was a person who satisfied the relevant public interest criteria which includes public health criterion 4005 of Schedule 4 to the Regulations (PIC 4005). In this regard, the applicant’s husband, the second-named applicant, Mr Charles Victor Pine, was attached to the application as a secondary applicant. He was found by a Medical Officer of the Commonwealth (MOC) not to satisfy PIC 4005 in a MOC opinion dated

   
   

   18 July 2016;

   ·Secondly, and because of this finding by the MOC in respect of the second-named applicant, the delegate refused to grant the visa for the second-named applicant because he did not satisfy cl.804.322. Clause 804.322 requires the second-named applicant to satisfy the relevant public interest criteria which includes PIC 4005.

3. The applicants appeared before the Tribunal on 24 June 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Antony Pine, who is the son of the applicants and their sponsor, as well as the applicants’ daughter, Ms Lee-Ann Pine. Other witnesses were Mrs Aagje Stanley and Mrs Rhyl Beggin. Mrs Stanley is a friend of the applicant. Mrs Beggin is a person who receives care from the applicant.

4. The applicants were represented in relation to the review by their registered migration agent.

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

   consideration of Claims and evidence

6. As the applicants were not the holders of substituted Subclass 600 visas at the time of application, they are required to satisfy PIC 4005. The issue in this review is whether the second-named applicant meets 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 second-named applicant in this case suffers from advanced chronic renal disease.

   Is the second-named applicant free from the relevant diseases or conditions

   
   

   (PIC 4005(1)(a), (b), (c))?

7. Public interest criterion 4005(1)(a) and (b) require an applicant to be free from tuberculosis and free from a disease or condition that is, or may result in the second-named applicant being, a threat to public health in Australia or a danger to the Australian community.

8. Public interest criterion 4005(1)(c) requires an 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). However, as the second-named applicant in this case has applied for a permanent visa, the exclusion provision in PIC 4005(3) does not apply.

9. 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).

   Is a MOC opinion required?

10. 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.

11. On 2 December 2020, a Review Medical Officer of the Commonwealth (RMOC) gave an opinion in relation to the second-named applicant after an opinion was requested by the applicant. The opinion relevantly provided as follows:

    The applicant has been assessed against Public Interest Criterion (PIC) 4005 [see attached extract] for the period of a permanent stay in Australia.

    The applicant does not satisfy sub-subparagraphs PIC 4005(1)(c)(ii)(A) and 4005(1)(c)(ii)(B) in Schedule 4 to the Migration Regulations.

    The applicant is a 71 year old person with:

    -Advanced chronic renal disease.

    Form and severity of the applicant's condition: the applicant has advanced chronic renal disease with severe renal failure which currently requires regular renal dialysis. Provision of services to a hypothetical person with the applicant's condition: A hypothetical person in Australia with the same condition as the applicant, at the same severity, would be likely to require long term specialist health care services, including, but not limited to renal replacement services in the form of dialysis. I consider that the provision of health care services to the hypothetical person in the circumstances defined above would also be likely to result in a significant prejudice to access to the Australian community in the area of health care. This is because dialysis, based on advice from the Department of Health, is currently a service in short supply; that is, there are already insufficient resources available to meet current national demand and failure to obtain required access to this service would be likely to seriously disadvantage current Australian citizens and permanent residents. This condition is likely to be Stable.

    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:

    Medical services

    Dialysis

    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, and prejudice the access of an Australian citizen or permanent resident to health care or community services.

    [bracketed words in original]

12. Based on the RMOC opinion, on 18 December 2020 the Tribunal sent a s.359A letter to the applicants seeking their comment on or response to the opinion. On 23 December 2020, the applicants’ representative responded by acknowledging the Tribunal’s invitation and seeking an extension until 18 January 2021 which the Tribunal granted.

13. On 14 January 2021, the applicants submitted a letter dated 12 January 2021 which relevantly stated as follows:

    1.     The health care that Charles is receiving is for dialysis treatments, an illness that is neither transferrable nor infectious or contagious and therefore, there will not be any risks to the Australian.

    2.     We are currently using private health insurance and together with our family, who are Australian, will reduce the high costs which may occur above the average health care costs. Our children have signed legal documents where they declared that they will always provide for our wellbeing.

    3.     We are aware that dialysis is on ongoing treatment for kidney failure. but Charles has expressed and convinced us as a family that he does not wish to be on organ recipient and he would like to continue with the natural process of his life without organ replacement.

    4.     Charles is over 71 years of age with end stage kidney failure. He has a very limited life expectancy and therefore, health care would certainly not be for an extended period and in no way for as long as that of a younger person having the same treatment.

    We strongly believe that the grant of a Visa would be unlikely to result in undue cost to the Australian community or prejudice access to medical care.

    5.     Charles’s health is deteriorating and according to his doctors is unable to travel. Sending him back to South Africa will not only be detrimental to his health causing him a much earlier death but will also cause great stress financially, physically and emotionally for the entire family. Returning to Africa will certainly cause health problems for both of us which would also be additional financial responsibilities for our children. The limited resources coupled with the high rate of COVID19 will certainly subject us to the Virus and other health issues and without the resources that Australia has available, it is inevitable that we will succumb sooner than later. With the current limitations on international travel, our children would be unable to support us.

14. This letter follows a similar letter dated 8 August 2018 that was written by the applicants at the time of applying for a review of the delegate’s decision. That letter stated that the applicants would receive assistance with medical bills, food and accommodation from their children. It stated that the applicants wish to be able to see their grandchildren, whom they love and enjoy. It stated that the applicant volunteers in several capacities. The letter also alluded to the health difficulties for the second-named applicant associated with him flying to South Africa, the unliveable way of life there and the fact that they do not have family or a home to go to there.

15. At hearing, the Tribunal heard mainly from the applicant who reiterated much of what was contained in these letters. She also revealed that she is now employed as a carer.

    
    

    Mrs Lee-Ann Pine asked the Tribunal if it could apply a “health waiver” as the applicants’ children are confident that they can cover the expenses. The applicant said that the second-named applicant’s condition is not a disease and will not affect Australia, and because the cost of treatment is covered by health insurance they are not prejudicing Australians. The Tribunal pointed out that there is no waiver of PIC 4005. Mrs Lee-Ann Pine responded by seeking the opportunity to pay an amount that the Department could specify in order to get the applicants to stay. The sponsor told the Tribunal that he has a son who is on the spectrum and who has a special relationship with the applicants but especially the applicant.

16. The Tribunal heard from Mrs Stanley that the applicant is a very brave woman. She said that the applicant would be returning to a country where she would not have her children to help her. She said that the applicant is a very good and honest person who tries very hard.

    
    

    Mrs Beggin said that she had grown very fond of the applicant through her care which was “top notch”. She said that she had been cared for by the applicant for two years and she held her in high regard. She said that the applicant is a wonderful woman who has coped admirably with the downturn in her life. She said that the applicant has been well cared for by her family.

17. The Tribunal lastly heard from the representative who told it that the applicants have significant ties to the Australian community. The Tribunal earlier heard that two of the applicants’ children are Australian citizens and one is a permanent resident who is married to an Australian citizen, and the applicants have seven grandchildren. He requested additional time to submit more information, being medical information. When asked why this information was needed, he said that the information would show that the second-named applicant would be able to get better medical attention in Australia than in Zimbabwe or South Africa. The Tribunal accepted that this would probably be the case. The sponsor at this stage said that they had previously attempted to get more information from the doctor but were told that there is no more to add to his previous letter. Based on this information, the Tribunal has not consented to the representative’s request for additional time.

18. The Tribunal has considered the RMOC opinion. It has considered that it identifies the medical condition to which the public interest criterion has been applied and the form or level of the condition. It has considered that the RMOC has referred to the hypothetical person who suffers from the form or level of the applicant’s condition.

19. The Tribunal is satisfied that the RMOC has applied the correct test in relation to the second-named applicant and is valid. It should therefore be taken to be correct.

20. The Tribunal has considered the evidence before it, including the applicants’ letters of August 2018 and January 2021, as well as their testimony at hearing and the witness testimony of the sponsor, Mrs Lee-Ann Pine, Mrs Stanley and Mrs Beggin. It acknowledges the difficult circumstances facing the applicants and their family. However, it reiterates that there is no waiver for PIC 4005 as there may be for other criteria such as PIC 4007. Moreover, it is not aware of there being any opportunity to pay a sum of money in order to allow the applicants to stay as was suggested by Mrs Lee-Ann Pine at hearing. In short, there is no discretion in relation to an RMOC opinion that the Tribunal finds has applied the correct test.

    CONCLUSION

21. Accordingly, based on the opinion of the RMOC, the second-named applicant does not satisfy public interest criterion 4005(1)(c). As the second-named applicant has not satisfied the requirements of PIC 4005, he does not satisfy cl.804.322 and the Tribunal must affirm the decision under review in respect of him.

22. As there is a member of the family unit of the applicant who does not satisfy PIC 4005, the applicant does not meet the requirements of cl.804.226 and the Tribunal must affirm the decision under review in respect of her.

    decision  

23. The Tribunal affirms the decision not to grant the applicants Aged Parent (Residence) (Class BP) visas.

    David Crawshay
    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.