Redmond (Migration)

[2018] AATA 1580

Redmond (Migration) [2018] AATA 1580 (2 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Susan Caroline Redmond

CASE NUMBER:  1710809

DIBP REFERENCE(S):  CLF2015/67296

MEMBER:Linda Holub

DATE:2 May 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Contributory Aged Parent (Temporary) (Class UU) visa.

Statement made on 02 May 2018 at 3:15pm

CATCHWORDS
Migration – Contributory Aged Parent (Temporary) (Class UU) visa – Subclass 884 (Contributory Aged Parent (Temporary) – Health criteria – Further opinion of the Medical Officer of the Commonwealth sought – Moderate functional impairment – Condition likely to become permanent – No material changes in respect of the applicant’s condition – Practice and Procedure – Review applicant unable to attend the hearing – Decision made on the papers – Decision under review affirmed


LEGISLATION
Migration Act 1958 s 65
Migration Regulations 1994 r 2.25A Schedule 2 cl 884.224 Schedule 4 Criteria 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 a decision made by a delegate of the Minister for Immigration on 3 May 2017 to refuse to grant the applicant a Contributory Aged Parent (Temporary) (Class UU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 30 October 2015. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.884.224 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 applicant was represented in relation to the review by her registered migration agent.

4. The applicant was invited to a hearing before the Tribunal on 2 May 2018 to give evidence and present arguments.  On 1 May 2018 the Tribunal received a response to the hearing invitation indicating that the review applicant would not be attending the hearing but that her representative and her son who is sponsoring her application would attend as a witness.

5. On 2 May 2018 the Tribunal discussed with the applicant’s registered migration agent the reasons why the applicant would not be attending. The Tribunal was informed that the review applicant is in a wheelchair, is stressed and confused and that it would be very difficult for her to attend.  The applicant’s migration agent stated that the applicant’s son planned to attend as a courtesy to the Tribunal.  The Tribunal explained that in order to conduct a hearing, the review applicant would need to attend but in circumstances where she is unable to do so, it would be possible for her to request that a decision be made on the papers. Later the same day the Tribunal received written confirmation that that the review applicant is unable to attend the hearing. The email confirmed that the applicant’s health had not changed materially and that a decision could be made on the papers alone.

6. In view of the applicant’s circumstance, the Tribunal considered the evidence and information available and proceeded to make a decision.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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 applicant, in certain circumstances, to undergo medical assessment, and to be free of certain diseases or conditions that may impact on the community.

9. The delegate’s decision records that the applicant undertook a full health examination on 14 October 2016 and additional reports were obtained on 8 November 2016. On 8 November 2016 the Medical Officer of the Commonwealth determined that the applicant did not satisfy the health requirement. On 31 January 2017 the applicant was issued with an invitation to comment letter, which invited additional medical information/reports/results to be submitted in order to have the health outcome reviewed.

10. On 28 March 2017 an additional medical report in respect of the applicant was submitted to the Department. That medical report was subsequently forwarded to the Medical Officer of the Commonwealth on 3 April 2017 for review of the health outcome. The following day the Medical Officer of the Commonwealth determined that the applicant did not satisfy the health requirement for a second time.

11. Based on that information, the delegate was not satisfied that the applicant satisfied Public Interest Criteria 4005.

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

12. 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.

13. 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).

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

15. 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 or was it obtained?

16. On the evidence before the Tribunal, a MOC opinion was 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.

17. On 17 November 2017 the Tribunal wrote to the applicant advising that in cases where a person has not met the health criteria for a visa, a further opinion can be obtained from a Medical Officer of the Commonwealth. The applicant indicated that she wished to obtain a further medical opinion and the matter was referred on 8 January 2018. The Tribunal was provided with the Form 884 Opinion of the Medical Officer of the Commonwealth dated 2 February 2018 indicating that the applicant had been assessed.

18. The opinion of the Review Medical Officer of the Commonwealth (RMOC) states that the applicant is 75 years of age with moderate functional impairment.  It states that her condition is likely to be permanent.  The report describes the form and severity of the applicant’s condition and also the likely health care or community services during the period specified that a hypothetical person with this disease or condition is likely to require.  The report indicates that the provision of the required services would be likely to result in a significant cost to the Australian community in the areas of health care and/or community services.

19. The Tribunal is satisfied the RMOC is valid.

20. The Tribunal is satisfied that based on oral and written advice of the applicant’s migration agent, that the applicant was unable to attend the hearing and that there have been no material changes in respect of the applicant’s condition.

21. Accordingly, based on the opinion of the MOC, the applicant does not satisfy public interest criterion 4005.

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

    DECISION

23. The Tribunal affirms the decision not to grant the applicant a Contributory Aged Parent (Temporary) (Class UU) visa.

    Linda Holub
    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.