Punjani (Migration)

[2023] AATA 3276

Punjani (Migration) [2023] AATA 3276 (20 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Malek Sultan Punjani

CASE NUMBER:  2219033

HOME AFFAIRS REFERENCE(S):          BCC2021/787681

MEMBER:Michael Judd

DATE AND TIME OF

ORAL DECISION AND REASONS:         20 September 2023 at 11:38 am (WA time)

DATE OF WRITTEN RECORD:                3 October 2023

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision under review.

Statement made on 03 October 2023 at 1:26pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – health requirement – Medical Officer of the Commonwealth assessment – additional medical assessments – disability issues – medical transfer – family funded care and treatments – referral for Ministerial Intervention – decision under review affirmed          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 600.213; Schedule 4, Public Interest Criterion 4005; rr 1.03, .16, 2.25

APPLICATION FOR REVIEW

ORAL DECISION OF MEMBER JUDD       [11.55 AM]

1. MEMBER: This has been an application for review of a decision that was made by a delegate of the Minister for Home Affairs. The decision was made on 16 December 2022. The decision was to refuse to grant you a visitor (Class FA) visa. You have applied for the visa on 7 January 2022. Your delegate refused to grant the visa on the basis that the delegate found you did not satisfy clause 600.213 of schedule 2 to the Migration Regulations, because the health criteria and public interest criterion PIC 4005 of schedule 4 to the Regulations was not met.

1. You appeared before the Tribunal today, 20 September 2023, and at 10 am West Australian time, to give evidence and present arguments.  I received the primary evidence from your Australian-based son, Mr Misar Junior Punjani.  I was aware that your two other sons, Misar Punjani and Noor Ali Punjani, were present at the commencement of the hearing, and were in a position to give me evidence if I required it.  For reasons that will become clearer, I do not require that evidence, because the things they would be in a position to tell me about were fully articulated through Mr Misar Junior Punjani.

As I said at the beginning of the hearing today, I am not required to just blindly accept the reasoning or the findings of fact of the delegate.  In this case, I have assessed all of the evidence independently and cumulatively to arrive at this decision.  The hearing today was conducted with the assistance of an interpreter in Urdu and English languages.  The issue has been, or is, whether you meet public interest criterion 4005 as required by the criteria of the grant of the visa. I think it is helpful to summarise or read out what were the reasons why your application was refused.  Just bear me with me a minute.  So I am reading from the decision record.

1. The delegate stated in the decision record that they were not satisfied that clause 600.2013 in schedule 2 of the Migration Regulations was satisfied at the time of the decision. This clause provides that the applicant satisfies various public interest criteria or criterion, and that includes criterion 4005. After considering the information, the delegate was not satisfied you met criterion 4005.

1. Non-citizens entering Australia are required to meet the health requirement that is defined under Australian migration law.  The intent of the health requirements is to help maintain Australia’s high health standards.

1. I am still reading from the delegate’s decision here.  The delegate stated: It is important for Australia and for the continuation of many successful visa programs that public health risks and health costs are not unduly increased by visa holders.  They include whether the visa holders are permanent or temporary.

1. The decision record states: For this reason, applicants for visas to visit or migrate to Australia are required to meet the health requirements.  These health requirements help ensure that risks to the public health in the Australian community are minimised, public expenditure on health and community services is contained, and thirdly, Australian residents have access to health and other community services.

   I must say that there is no evidence or information before me, and this is the Tribunal, that you present as a risk to the public health of the Australian community.  As far as I am aware, there are no communicable diseases suffered by you that would present as a risk to public health.  And there’s no evidence or information that Australian residents would be impacted from having access to the health and other community services by reason of your previous care in Australia and your current care.  I think the issue clearly is the public expenditure on health and community services is contained in this particular matter. I continue to read from the decision record.

   As the applicant is in the class of persons specified by the Minister in an instrument on the public interest criterion 4005(1)(aa)(i), the applicant is required to complete health assessments as identified by the instrument. The applicant undertook medical examinations in July 2022. Of course, you were in Australia at that point…..the applicant does not meet criteria PIC 4005(1)(c)(ii)(A). Furthermore, the applicant was reassessed for a reduced length of stay, and she still did not meet the health requirements. A Natural Justice letter was sent on 8 November 2022, giving the applicant 28 days to respond. She requested further time. A further seven days was given, and no further information was provided. Therefore, I am not satisfied that the applicant meets public interest criterion 4005(1)(c)(ii)(A), and consequently clause 600.213 of the Regulations.

1. So that explains why the delegate made the decision that they did.  I am satisfied that you did undergo the medical assessment, and that you are free of diseases that would impact upon the community.  The question is:  Are you free from relevant diseases or conditions?  Public interest criterion 4005(1)(a) and (b) require an applicant to be free from tuberculosis.  Well, there is no suggestion you have tuberculosis.  And to be free from a disease or condition that is or may result in you being a threat to public health in Australia or a danger to the Australian community. 

1. Public interest criterion 4005(1)(c) requires the applicant to be free from a disease or condition which would be likely to require healthcare or community services, or which would meet the medical criteria for provision of a community service during the specified period.

1. In your case, the specified period would be the period for which the visa would be granted, and there is information to suggest that the visa would have been granted for a period of about three months.  That is the specified period.  I continue: Provision of the healthcare 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 healthcare and community services, or prejudice access of an Australian citizen or permanent resident to healthcare or community services.

1. For specified temporary visas, certain specified healthcare and community services are excluded from this consideration.  There is no suggestion or information that you would prejudice the access of any Australian citizen or permanent resident to healthcare or community services.  As I have said, the issue is whether you have a condition which would be likely to require healthcare or community services, and whether provision of the healthcare and community services would likely result in a significant cost to the Australian community in the areas of healthcare and community services. 

1. So I hope that sets out the legal background to some extent.  I am going to refer to the opinion of the medical officer of the Commonwealth.  There was an opinion dated 25 October 2022, and I am going to read that out.

The applicant has been assessed against public interest criterion PIC 4005 for the period of three months. That is the specified period. The applicant does not satisfy subparagraph PIC 4005(1)(c)(ii)(A) in schedule 4 to the Migration Regulations. The applicant is a 74‑year‑old person with severe functional impairment. The form and severity of the applicant’s condition is that she has a severe functional impairment on a background of a B cell lymphoma affecting her brainstem. Ongoing management is supportive only. She has limited mobility, requires support with activities of daily living, and is currently in a residential care facility. 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 community services, including but not limited to residential aged care services. This condition is likely to be progressive.

1. The medical officer of the Commonwealth states further:

I consider that a hypothetical person with this disease and condition at the same severity as the applicant would be likely to require healthcare or community services during the period specified above.  These services would be likely to include community care services, residential care services.  Provision of these healthcare and/or community services would be likely to result in a significant cost to the Australian community in the areas of healthcare and all community services. In preparing this opinion, I have had regard to the information available to date concerning the applicant, including but not limited to the visa medical assessment of 27 July 2022, and reports from the haematologist Dr Zargari, undated, and Monash Health treating doctor dated 28 June 2022.

1. So that was the medical opinion of the medical officer of the Commonwealth.  The legal position in relation to that is quite strict, and that is: I must accept the things that are referred to in that opinion unless I would find that the opinion was not validly made.  I have considered all of the requirements under the Regulations as to whether it was validly made, and I do find that the opinion was validly made, and that it still has application to the time of my decision. I know it is 11 months old now, but it is not so old as to cause me to doubt its validity now, so I am not going to seek out a fresh opinion of a medical officer of the Commonwealth.  I see no basis to do that.

2. So what that means is that I must accept that opinion. If I accept that opinion, which I do, that means I must find that the requirements are not satisfied for the purposes of cause 600.213 of schedule 2 to the migration Regulations. I think it is important to set out some of the additional information that you provided to the Tribunal, and I am going to do that. Firstly though, I note your travel history, and it is as follows.

3. You were granted a visitor visa on 5 May 2016, which was to cease on 25 November 2016.  You arrived here on 1 July 2016.  You stayed with your son here.  You departed on the land day of that visa, which was 25 November 2016.  You were granted another visitor visa on 10 January 2019.  That was to cease on 11 March 2020.  You got here or arrived here on 11 March 2019, and of course, you have not departed Australia since 11 March 2019.  I make no adverse comment about that.  It is clear to me why you did not.  I make note, however, that 11 March 2020 was pretty much around the exact date that Covid-19 first entered Australia, but as your son explains, that is not the major issue here. 

4. On 10 January 2023, the Tribunal forwarded you a letter outlining that if you wished, you could have obtained or sought to obtain another opinion, and that the Tribunal would arrange for a further opinion to be obtained from a medical officer of the Commonwealth.  In fact, the form required was sent to you, as was a referral to the fee for $520.  For reasons known to yourself, you decided not to apply for a fresh medical officer of the Commonwealth opinion.  That is your right to do so.

5. I am aware that when you provided the response to the Tribunal invitation, you set out various things that would affect or could affect your participation.  I think it is important to refer to those.  Those factors related to physical disabilities, vision, and hearing impairments, as well as speech difficulties.  You outlined that you experienced partial paralysis in half of your body, and that can sometimes impact upon your ability to move and participate in certain activities.  You are dedicated to engaging to the best of your ability, but there might be instances where your mobility is limited. 

6. Due to both age-related change and the effects of multiple chemotherapy treatments, your vision and hearing have been partially impaired.  In fact, your son told me that you are effectively blind in your right eye, and this could make it challenging for you to perceive visual or auditory cues through your hearing.  You communicate at a slower pace, and you may take a bit longer to respond to questions.  Your speech difficulties might require patience, and I think I gave you quite a bit of patience today.  You are committed to participating to the best of your ability, and appreciate any understanding, accommodation, or assistance that can be provided to ensure effective and inclusive participation. 

7. I think the hearing today ran quite smoothly and usefully considering your disabilities.  I have gained a very good understanding of your situation through your son.  There was also some information from your son, Misar Junior Punjani.  He basically confirms what I have just read out.  My assessment of him today was quite positive.  I did not gain the impression that he was trying to overstate your health issues and conditions.  I found him to be quite reasonable, and there were no issues as to credibility.  I am prepared to accept the evidence that he provided today.  As I have said, I had the opportunity to speak to your two other sons.  I decided I did not need to do so.

1. In addition to what is on the Department file, there was a letter from Dr Richard Merigan dated 12 September 2023.  In fact, that was only last week or the week before.  It is addressed, ‘For whom it may concern.’  It says as follows:

   Mrs Malek suffered from a primary central nervous system lymphoma which caused her to suffer from a major stroke in 2019.  She remains bedridden and is incontinent of both faeces and urine.  Primary central nervous system lymphoma is a rare and aggressive CNS neoplasm with a high morbidity and often fatal outcome.  She suffers from a plethora of other comorbidities which would make medical transfer both extremely difficult, but also pose significant health risks.

1. I just want to emphasise what he said there, and that is ‘medical transfer’, and I think that would be the case in your situation.  Medical transfer is different from an ordinary passenger on an aircraft.  A medical transfer requires supervision or assistance for the person during the flight and after.  They are different situations compared to normal flight.  I continue:

She is incapable of caring for herself in any way, and as such requires assistance for all facets of life, including feeding, hygiene, and any transfer.

I know your son told me today that you have use of your left arm, you are left‑handed, and you can hydrate yourself and perhaps even eat some food yourself, but in relation to your hygiene and toiletries and washing and bathing, I accept that you would require close assistance in relation to that.  Dr Merigan goes on and says I do not believe that she is a viable candidate for medical transfer.

1. Some of the conditions here that he refers to include cataract removal and implant, constipation, faecal incontinence, gastroesophageal reflux disease, blood pressure, non-insulin-dependent diabetes, obstruction of the bowel, stercoral proctocolitis, stroke, urinary incontinence, lymphoma, hemiplegia, nerve pain, and urinary retention. 

1. So you have a wide range of various medical complaints.  There is a further letter from a Dr Elizabeth Goodall, who is a haematology fellow based in Victoria, and that is dated 8 September 2023.  I will read that out. 

I am one of Mrs Punjani’s haematology specialists who review her from the outpatient clinic at Moorabbin Haematology Clinic.  I have been asked to provide a medical update regarding Malek’s health.  Malek is currently 75 and resides in a nursing home requiring a high level of care.  She has good cognitive ability but is very disabled from her medical issues.  She is unable to mobilise and perform activities of daily living without assistance.  This is due to a past diagnosis of central nervous system lymphoma, and whilst that is in remission currently, she has ongoing marked neurological compromise secondary to this condition. 

She is understandably frustrated by her medical ill-health and inability to care for herself or to live independently.  She has accepted this is likely to be a lifelong disability.  She lives with the possibility of relapse and is always alert for new neurological compromise or symptoms.  I do not believe, as Dr Merigan states, she is medically fit for a long-haul flight.  I have concerns that her high level of care would be attended to throughout or even after relocation to another country.  She has a high potential for deterioration, distress, or even death should she be required to undertake this journey.  Thank you for your compassion.

1. Of course, we spoke today.  I am not going to simply summarise everything that we spoke about today.  I observed you as I was receiving evidence from your son and when I was speaking to you also.  It is very clear to me that you are, to a major extent, compromised by the lymphoma that you have suffered.  I accept that you do not have the use any more of your right eye.  I accept that you only have adequate use of your left arm and hands.  I also accept that you have been in that care facility, or in care, for the better part of four years now since 2019.  That is a long time.

2. I am concerned for your wellbeing if you had to depart Australia in this situation.  I am very concerned.  But that said, I must apply the law, and the law tells me that if I accept that this medical opinion of the Commonwealth was validly made, then I am bound to accept what is in that opinion. 

3. I must be satisfied that it is an opinion by a medical officer of the Commonwealth defined in regulation 1.03 to mean a medical practitioner appointed by the Minister in writing under regulation 1.16AA to be a medical officer of the Commonwealth for the purposes of the Regulations.  I must also be satisfied the opinion is on a matter referred to in regulation 2.25A1 or 2 for the purposes of (1) an opinion on whether a person meets certain health requirements, and that the opinion addresses satisfaction of those requirements at the time of the Minister’s decision.

4. I am satisfied the opinion refers to the correct criterion, which is public interest criterion 4005.  I am satisfied that it correctly reflects assessment of costs and access to healthcare or community services during the relevant period. 

5. There does not need to be a breakdown of those costs.  In fact, I accept the evidence that you have been funded, or your care and treatments have been funded through your family, or to an extent through insurance as well, and that you have not been a burden on the Australian community or the Australian taxpayer.  That, as it is, is not particularly relevant to my considerations, because the situation of the medical officer of the Commonwealth is that the officer considers the situation of a hypothetical person the same level of conditions.  In fact, the medical officer states as follows:

   I consider that a hypothetical person with this disease or condition at the same severity as the applicant would be likely to require healthcare or community services during the period specified.

1. So having found that the opinion is validly made, I must also find that also.  I do not assess that I should seek a further medical opinion of the Commonwealth, because I do not believe it would particularly change in any respect.  There is no situation in which your health has improved. 

1. So that being the case - - -

1. MR PUJANI:  Member - - -

1. MEMBER:  I am sorry, no.  Based on those findings, a medical officer of the Commonwealth’s opinion or a further opinion is not required.  Because you have not satisfied the requirements of public interest consideration 4005, I must affirm the original decision under review. 

   Referral for consideration of Ministerial Intervention

2. That is not the end of my considerations.  This is because in certain situations, the Minister for Immigration or this Tribunal, where the Minister has found or finds unique or exceptional circumstances, the Minister can substitute a decision of the Tribunal for another decision.  Some of the circumstances in which that can occur, and there are examples on the Department’s website, are as follows:

   where there are strong compassionate circumstances that, if not recognised, would result in serious, ongoing, and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.

   I do not assess that as having application to your circumstances.  Other examples include exceptional economic, scientific, cultural, or other benefits that would result from being permitted to stay.  That does not apply to your situation.  Other circumstances are you cannot be returned to your country of citizenship due to circumstances outside of your control.  That may have application to your circumstances.  I think, however, the following example has direct application to you, and that is where there are compassionate circumstances regarding your age and/or your health and/or your psychological state that, if not recognised, would result in serious, ongoing, and irreversible harm and continuing hardship. 

3. That includes not only to you, but also to others as well.  In your situation, I am very much persuaded that if you were required to depart Australia now or in the reasonably foreseeable future, that would place your life at particular risk because of the mental stresses and physical stresses associated with long‑haul travel.  The only other options, I think, available to you would be to seek to reside with your son in the UK or perhaps your son in Canada.  But you are not fit, according to two separate medical professionals, to travel at the moment.  In any event, I have found that even if you were, you would require somebody to oversee you for your health to make sure that you were able to be treated during the flight and be cared for.

4. I note that you have not been a financial burden on the Australian community in relation to your treatment as of today.  That has been catered for by your family and also by insurance as well. 

5. I think your circumstances are well within my assessment as to referring your case for ministerial intervention to replace my decision.  That is what I am going to do, is I am going to refer your case for assessment for ministerial intervention so that the Minister can consider replacing this decision with a decision more favourable to you.

6. All right.  Mrs Punjani, this is what I have decided today.  Mrs Punjani, unfortunately I cannot accept your request for review today in your favour.  So what that means is that I must accept the decision to refuse your application is the appropriate decision. When I say ‘appropriate decision’, what I mean is the appropriate decision according to the law of Australia.  And why I have arrived at that decision is that there was an opinion from a doctor on behalf of the Commonwealth that I had to take into consideration, and that decision was against you.

7. For some visas, I have the power to waive that requirement, but because this was a visitor visa or a temporary visa, I do not have that power.  So if I accept that the opinion was validly made by this doctor, I must accept what it says.  I assessed that opinion against the Regulations, and there was nothing to indicate that it was not validly made, and that is why I cannot accept that you satisfy the requirements. 

8. That is not the end of today’s story.  The Tribunal has powers in exceptional circumstances to refer cases to the Minister for Immigration, and the Department tells me, where there are major compassionate circumstances about a person, that I can do that.  In your case, I think there are very, very significant circumstances that would support me referring your case to the minister.  And the two doctors’ reports, recent ones, tell me that you would not be able to cope with flying back to Pakistan or some other place, and I am worried about that too.

9. I think the appropriate outcome is that you be allowed to stay here, and that is why I am going to have the Tribunal refer your case to the Minister.  And I do not want you to go away today thinking that you will have to leave in the foreseeable future.  The Minister or the Department must consider this referral first.  All right.  That is not the outcome that you might have hoped for today, but as I have said, I just must apply the law.

10. What happens now is the information that has been provided to the Tribunal as to your circumstances, and the evidence from today, will be provided to the Immigration Department.  And if there are any further reports in the future, they can be forwarded to the Immigration Department to ensure the Minister has the full picture. 

    END OF ORAL DECISION    [12.38 PM]

Michael Judd
Member