Pramono (Migration)

[2018] AATA 2828

Pramono (Migration) [2018] AATA 2828 (12 April 2018)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ari Pramono
Miss Azka Inayah
Miss Khoirunnisa Raudhatul Alliyah
Ms Yanialti Bachtiar Pramono
Mr Aimana Amirulhaq

CASE NUMBER:  1607856

DIBP REFERENCE(S):  BCC2015/2363137

MEMBER:Antonio Dronjic

DATE OF DECISION:  12 April 2018

DATE CORRIGENDUM

SIGNED:21 May 2018

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

The words ‘For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. As no submissions were provided to the Tribunal as to why should this matter be referred to the Minister, the Tribunal decided’ at paragraph 21 should be replaced with ‘For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. As no submissions were provided to the Tribunal as to why should this matter be referred to the Minister, the Tribunal decided not to refer the matter to the Minister’.

Antonio Dronjic
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ari Pramono
Miss Azka Inayah
Miss Khoirunnisa Raudhatul Alliyah
Ms Yanialti Bachtiar Pramono
Mr Aimana Amirulhaq

CASE NUMBER:  1607856

DIBP REFERENCE(S):  BCC2015/2363137

MEMBER:Antonio Dronjic

DATE:12 April 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled Nominated (Permanent) visas.

Statement made on 12 April 2018 at 2:09pm

CATCHWORDS
Migration – Skilled Nominated (Permanent) visa – Subclass 190 (Skilled (Nominated)) – Requirement for members of the family unit of the primary applicant to meet the health criteria – Where primary applicant’s child does not meet health criteria – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351, 359A
Migration Regulations 1994 (Cth), r .2.25A, Schedule 2, cl 190.216, Schedule 4, PIC 4005

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 Immigration on 25 May 2016 to refuse to grant the applicants Skilled Nominated (Permanent) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 16 August 2015. The delegate refused to grant the visa on the basis that the applicants did not satisfy cl.190.216 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 visa applicants were requested to undertake medical examinations and the results were referred to the Medical Officer of the Commonwealth (MOC) assessment. On 26 November 2015 the MOC provided his/her opinion that the primary applicant’s son Aimana Amirulhaq does not meet the health requirement.

4. The applicant sought review of the delegate’s decision on 31 May 2016.  A copy of the delegate’s decision accompanied the review application.

5. On 14 September 2016, the Tribunal sent a copy of MOC opinion dated 26 November 2015, to the review applicant, pursuant to s.359A of the Act, inviting them to comment on or respond to that information. The invitation noted that, pursuant to r.2.25A, the Tribunal must take an opinion of the Medical Officer of the Commonwealth to be correct. With the same letter, the applicant was offered an opportunity to obtain a further MOC opinion.

6. On 10 November 2016, the applicants wrote to the Tribunal advising that they will seek further MOC opinion. The applicants enclosed evidence of payment of related MOC fees to the Department and additional documentary evidence (Tribunal folios 49-53). On the same day, the Tribunal wrote to the MOC requesting further medical opinion and enclosing documentary evidence provided in support of this request by the applicants.

7. The outcome of the second MOC opinion dated 14 November 2016 reflected the same result as the first MOC opinion.

8. The matter was constituted to the current Tribunal on 7 December 2017. By that time, the second MOC opinion was more than 12 months old.  

9. On 13 December 2017, the Tribunal sent a copy of MOC opinion dated 14 November 2016, to the review applicant, pursuant to s.359A of the Act, inviting them to comment on or respond to that information. The invitation noted that, pursuant to r.2.25A, the Tribunal must take an opinion of the Medical Officer of the Commonwealth to be correct. With the same letter, the applicant was offered an opportunity to obtain a further MOC opinion.

10. On 21 December 2017, the applicants provided their comments on or response to the Tribunal’s letter of 13 December 2017.(Tribunal folios 81-101)

11. On 2 January 2018, the Tribunal wrote to the applicants offering another opportunity to obtain a further MOC opinion.

12. On 3 January 2018, the Tribunal wrote to the applicants advising that it had considered all the material before it relating to the applications but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicants to give oral evidence and present arguments at a hearing on 12 April 2018.

13. On 12 January 2018, the applicants wrote to the Tribunal advising that they will seek further MOC opinion. The applicants enclosed evidence of payment of related MOC fees to the Department and additional documentary evidence (Tribunal folios 117-121). On 17 January 2018, the Tribunal wrote to the MOC requesting further medical opinion and enclosing documentary evidence provided in support of this request by the applicants.

14. The outcome of the third MOC opinion dated 7 February 2018 reflected the same result as the first and the second MOC opinion.

15. On 8 February 2018, the Tribunal sent a copy of MOC opinion dated 7 February 2018, to the review applicants, pursuant to s.359A of the Act, inviting them to comment on or respond to that information. The invitation noted that, pursuant to r.2.25A, the Tribunal must take an opinion of the Medical Officer of the Commonwealth to be correct.

16. On 21 February 2018, the applicants provided their comments on or response to the Tribunal’s letter of 8 February 2018. (Tribunal folios 138-139)

17. The applicants appeared before the Tribunal on 12 April 2018 to give evidence and present arguments. The Tribunal began the hearing by explaining the role of the Tribunal; and the purpose of the Tribunal hearing. The Tribunal informed the review applicants that the reason why the delegate had refused to grant the visas was because Mr Pramono’s son was unable to meet the health criteria in Public Interest Criterion (‘PIC’) 4005 of Schedule 4 to the Regulations.

18. I explained that, based on the evidence before me I am satisfied that the MOC opinion in this case was required and that the MOC opinion dated 7 February 2018 is valid. I further explained that I have no discretion in this matter and I am bound to accept it as correct under r.2.25A (3). The Tribunal noted there is no waiver provision available in the applicants’ case.

19. I indicated that the applicants can seek ministerial intervention in this matter pursuant to s.351 of the Act which gives the Minister discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicants, if the Minister thinks that it is in the public interest to do so.

20. Soon after the hearing, the primary applicant wrote to the Tribunal seeking the recommendation to the Minister to exercise his discretion under s.351 of the Act. There are no submissions or sufficient documentary evidence before me that will warrant the referral. However, there is nothing to prevent the applicants to approach the Minister directly.

21. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. As no submissions were provided to the Tribunal as to why should this matter be referred to the Minister, the Tribunal decided

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. 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. In this case, a MOC found that the applicant’s son does not meet PIC 4005(1)(c)(ii)(A). The Tribunal notes that if one applicant fails to meet the criteria, all applicants are considered to not meet the criteria for the grant of the visa.

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

23. 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.

24. 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 certain temporary visas, the applicant is excluded from the requirement to be free from a disease or condition likely to result in significant cost in the areas of health care and community services: PIC 4005(3).

25. As the applicant in this case has applied for a permanent visa, the exclusion provision in PIC 4005(3) does not apply and the applicant in this case must satisfy PIC 4005(1)(c)(ii)(A).

26. 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).

27. The applicants are nationals of Indonesia, the country specified by the Minister in the relevant instrument (IMMI 13/161)

28. Mr Aimana Amirulhaq is the son of the primary visa applicant (Mr Pramono) and was included in the visa application. Mr Aimana Amirulhaq is a member of the primary visa applicant's family unit and must therefore meet the health requirements in PIC 4005 for the purposes of cl.190.216.

    Is a MOC opinion required?

29. On the evidence before the Tribunal, a MOC opinion is required.  As noted above, the Tribunal must take the MOC opinion as correct, but first must 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.

30. The Tribunal has a MOC opinion in respect of Mr Aimana Amirulhaq dated 7 February 2018. The MOC noted that the applicant was assessed against PIC 4005 for the period of a permanent stay in Australia. The Tribunal considers that the period of assessment meets PIC 4005(2).

31. The opinion identifies 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 statutory criteria is applied by reference to the “hypothetical person” test.  The services identified were State Disability Services and Commonwealth Disability Services, the provision of which would be likely to result in a significant cost to the Australian community in the areas of health care and/or community services.  The MOC indicated that in preparing the opinion, he or she had regard to the information about the applicant available to date which included, but was not limited to, the reports available in the first and second MOC opinions.

32. It was indicated that the officer is “a Medical Officer of the Commonwealth for the purposes of providing an opinion on whether prescribed health criteria under the Migration Regulations 1994 are met” and set out the officer’s position number.

33. The Tribunal considers that the MOC opinion, dated 7 February 2018, addresses whether the applicant is free from a disease or condition in relation to which a person who has it would be likely to require health care or community services during the period commencing when the application was made and that the opinion has been properly made.

34. Accordingly, based on the opinion of the MOC the Tribunal finds that the primary applicant’s son Mr Aimana Amirulhaq does not satisfy PIC 4005(1)(c).

35. Having determined that Mr Aimana Amirulhaq, as a member of a family unit of the primary applicant does not meet the health criteria for this visa, the Tribunal has to consider the remaining applicants. As a member of the family unit failed to meet PIC 4005, all the applicants do not meet the sub regulations of the 190 visa. Therefore all the applicants do not meet the criteria for the provision of the 190 visa.

36. As the applicants have not satisfied the requirements of PIC 4005 for the purposes of cl.190.216, the Tribunal must affirm the decisions under review.

    DECISION

37. The Tribunal affirms the decision not to grant the applicants Skilled Nominated (Permanent) visas.

    Antonio Dronjic
    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.