Rensburg (Migration)

[2020] AATA 3870

Rensburg (Migration) [2020] AATA 3870 (15 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Benita Margaret Rensburg
Mr Ashley Carl Rensburg

CASE NUMBER:  1922916

DIBP REFERENCE(S):  CLF2016/46515

MEMBER:Mary Urquhart

DATE:15 September 2020

PLACE OF DECISION:  Melbourne        

DECISION:1. The application by Mrs Benita Margaret Rensburg is withdrawn.

2.The Tribunal affirms the decision not to grant the applicant an Aged Parent (Residence) (Class BP) visa.

Statement made on 15 September 2020 at 4:42pm

CATCHWORDS
MIGRATION – Aged Parent (Residence) (Class BP) visa – Subclass 804 (Aged Parent) – health criteria – disease or condition likely to result in significant cost to Australian community – assessment by medical officer of commonwealth – death of primary applicant – secondary applicant’s functional impairment and legal guardianship – no family members in home country – all siblings Australian citizens or permanent residents – siblings’ care and capacity to mitigate costs – review application for primary applicant withdrawn – secondary applicant’s case referred for ministerial consideration – decision under review for secondary applicant affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), r 2.25; Schedule 2, cl 804.225; 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 a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicants Aged Parent (Residence) (Class BP) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicant(s), Ms Benita Margaret Rensburg and the dependant applicant Mr Ashley Carl Rensburg lodged an Aged Parent (Residence) (Full) (BP 804) visa application on the 5 August 2016. The application was released from the queue to be assessed for the grant of the visa.

3. At the time the visa application was lodged, the Aged Parent (Residence) (Class BP) visa contained one subclass, Subclass 804 (Parent): Item 1124A in Part 1 of Schedule 1 to the Migration Regulations 1994 (the Regulations). The criteria for a Subclass 804 visa are set out in Part 804 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl.804.225.

4. On 21 January 2019, a letter was sent to the applicant via the then authorised person and migration agent, Mr Martin Ross via email, requesting further documents including the health assessment.

5. On 8 February 2019, Medibank Health solutions issued the Form 884, which the Medical Officer of the Commonwealth (MOC) advised that the Dependant applicant Mr Ashley Carl Rensburg did not satisfy sub-subparagraph PIC 4005(1)(c)(ii)(A) in Schedule 4 to the Migration Regulations. In the opinion of the MOC, the applicant failed to meet the above regulations.

6. On 13 February 2019, Medibank Health solutions issued the Form 884, which the Medical Officer of the Commonwealth (MOC) advised that the primary applicant Ms Benita Margaret Rensburg did not satisfy sub-subparagraph PIC 4005(1)(c)(ii)(A) in Schedule 4 to the Migration Regulations. In the opinion of the MOC, the applicant failed to meet the above regulations.

7. As the applicant and dependant applicant failed to meet PIC 4005(1)(c)(ii)(A), they also did not meet clause 804.225 in Schedule 2 of the Regulations. Therefore, the applicants did not satisfy the criteria for the grant of an Aged Parent (Residence) (BP 804) visa.

8. The parties sought a review.

9. The application was set down for hearing on 15 September 2020.

10. On 4 February 2020 the Tribunal was notified that the primary applicant, Mrs Benita Margaret Rensburg, passed away on 2 February 2020. A death certificate for Mrs Benita Margaret Rensburg was provided to the Tribunal. The Tribunal received a withdrawal in relation to Mrs Rensburg. The Tribunal accepts the withdrawal.

11. The dependent applicant (the applicant) is now the only applicant in this review.

12. The applicant was invited to appear before the Tribunal on 15 September 2020 to give evidence and present arguments. The Tribunal was however informed that due to the applicant’s mental disabilities he is unable to participate.

13. The Tribunal was provided with a copy of Administrative Orders Made at a hearing by the State Administrative Tribunal on 5 July 2019 appointing Ms Bernice Erica Porter as the legal guardian of Mr Rensburg. Mrs Porter appeared as both witness and representative. The Tribunal also received oral evidence from Ms Lisa Nicola Brandt. Ms Porter and Ms Brandt are siblings of the applicant.

14. The hearing was conducted by telephone in accordance with current Covid 19 Tribunal arrangements.

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

16. The Tribunal recommends the matter be referred to the Minister for his consideration under s.351 of the Act.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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. The applicant in this case is a person with “mild functional impairment”.

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

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 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, and discussed at the hearing, 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 8 February 2019 the MOC gave an opinion that the applicant did not meet health requirements. The MOC opinion stated:

    "The applicant is a 44-year-old person with:

    – Mild Functional impairment

    Form and severity of the applicant's condition: the applicant has a mild functional impairment with learning difficulties on a background of a congenital hypoxic brain injury and epilepsy with a temporal lobectomy. He is independent in his personal activities of daily living but requires some assistance with his instrumental activities of daily living.

    Provision of services to a hypothetical person in Australia with the same condition as the applicant and at the same severity: a hypothetical person in Australia with the same condition as the applicant. at the same severity, would be likely to require both Commonwealth and State Disability services.

    This condition is likely to be Permanent”.

24. The Tribunal is satisfied that the MOC has applied the correct test.

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

26. At the hearing the Tribunal indicated that whilst sympathetic to the applicant's circumstances it had no discretion in regard to its finding. As the applicant does not satisfy an essential criterion for the visa, the Tribunal has no choice but to affirm the decision under review. The Tribunal discussed s.351 of the Act with the parties.

    Ministerial Intervention s. 351 of the Act

27. Section 351 of the Act states that only the Minister can intervene and substitute a decision that is more favourable to the applicant if it is in the public interest to do so. Such decision is entirely at his or her discretion. 

28. The Minister has issued the "Minister's Guidelines on Ministerial Powers" set out in the Procedures Advice Manual (known as PAM3). The Guidelines outline that the Minister will consider exercising his powers under section 351 where an individual's situation involves "unique or exceptional circumstances". As the Tribunal has made a decision in this case it is now open to the applicant to seek Ministerial Intervention. The Tribunal has considered the matter and recommends the Minister intervene in this case on the basis of the compassionate circumstances of the case.

29. The Tribunal takes the issue of recommending the referral of any matter to the Minister seriously. It also notes that the theme running through the relevant Ministerial guidelines on this matter is that there will always be unusual or exceptional circumstances where intervention by the Minister to grant a visa is warranted because to do so would align with Australian community expectations

30. In this case, the Tribunal has great sympathy for the applicant  and his close family. He has two brothers and two sisters. His sister Bernice is an Australian citizen, his sister Lisa Nicola is a Permanent resident as is his brother Michael. His brother Shaun has the intention to become a citizen. The entire family have come from troubled Zimbabwe to make a new home in Australia.

31. The Tribunal has been provided with a solid body of supporting evidence outlining the applicant’s medical difficulties since birth. He is unable to read or write. He has always been cared for by his supportive and loving family. Detailed evidence has been provided in Statutory Declarations from his brother Michael and his sister Lisa Nicola.

32. The applicant's circumstances are dire. He has no ability to live on his own and no family to care for him should he be required to return to Zimbabwe. Bernice Porter summed it up saying his circumstances are a double-edged sword; he is unable to meet health criteria here and unable to care for himself in Zimbabwe. She said he thrives on the love and affection he is given by the family here and that it would be a great cruelty to separate him from his only family. He is now some 46 years old. He lives with his sister Lisa Nicola.

33. The Tribunal notes the supportive summary of his treating doctor, Dr Morgan at Kwinara Medical centre. Dr Morgan refers to the grave difficulties the applicant would experience if required to travel.

34. Evidence was given of the ability of the family to mitigate he applicant’s  costs and of his health insurance.

35. Having considered the ministerial guidelines relating to the Minister's discretionary power under s.351, set out in PAM3 'Minister's guidelines on ministerial powers (s345, s351, s391, s417, s454 and s501J)' the Tribunal considers there are strong compassionate circumstances in this case such that a failure to recognize them would result in continuing distress and hardship to the applicant’s Australian family unit. It also considers that there are compassionate circumstances regarding the age and health of the applicant such that a failure to recognize them would result in irreparable harm and continuing hardship to that person, and for these reasons the Tribunal considers that the case should be referred to the Department to be brought to the Minister's attention.

36. The Tribunal recommends that this case be referred to the Department to be brought to the Minister's attention.

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

38. For the reasons above, the Tribunal finds that the applicant does not meet the criteria for a Subclass 804 visa.

    DECISION

39. 1.The application by Mrs Benita Margaret Rensburg is withdrawn.

    2.The Tribunal affirms the decision not to grant the applicant an Aged Parent (Residence) (Class BP) visa.

    Mary Urquhart
    Member