Rezkalla (Migration)

[2017] AATA 2501

Rezkalla (Migration) [2017] AATA 2501 (28 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Madlin Rezkalla
Mr Said Issa

CASE NUMBER:  1613000

DIBP REFERENCE(S):  CLF2012/93254

MEMBER:Kira Raif

DATE:28 September 2017

PLACE OF DECISION:  Sydney

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

Statement made on 28 September 2017 at 4:46pm

CATCHWORDS
Migration – Aged Parent (Residence) (Class BP) visa – Public Interest Criterion (PIC) – First named applicant – Did not satisfy the medical requirements – Waiting for treatment outcome – Tribunal cannot consider effectiveness of applicant’s treatment

LEGISLATION

Migration Act 1958 s 65

Migration Regulations 1994 rr 2.25A, 2.25A(3), Schedule 2 cls 804.225, 804.226, 804.321
Schedule 4 cls 4005, 4005(1)(a)- (c), 4005(3)

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 3 August 2016 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 30 April 2012. The delegate refused to grant the visa on the basis that the first named applicant (now referred to as the applicant) did not satisfy cl.804.225 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. The applicant seeks review of the delegate’s decision.

3. The applicants appeared before the Tribunal by telephone on 27 July 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. 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 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. 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.

5. 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).

6. As the applicants in this case have applied for a permanent visa, the exclusion provision in PIC 4005(3) does not apply.

7. 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).

   Does the applicant meet the health requirement?

8. The applicants provided to the Tribunal a copy of the primary decision record. It indicates that the applicants were holding Tourist Subclass 676 visas when they made the present application. There is no evidence that these visas were substituted subclass 676 visas that were granted following a decision by the Minister to substitute a more favorable decision and the applicant confirmed in oral evidence to the Tribunal that they did not hold substituted visas. The applicant’s evidence to the Tribunal is that they entered Australia on Visitor visas and did not approach the Minister for a substituted visa. As such, cl. 804.225 requires the applicants to meet the health requirements set out in PIC 4005.

9. The primary decision record indicates that the applicants had been requested to complete the health checks. The second named applicant was found to meet the health requirements but the first named applicant was found not to meet PIC 4005. The applicant provided additional medical evidence but the opinion of the Medical Officer of the Commonwealth remained unchanged. In July 2016 the Department was advised that the applicant did not meet the health requirements.

10. Ms Rezkalia explained to the Tribunal in oral evidence that she has been living in Australia for about eight months and did not know that she had the disease until she did the health test. Ms Rezkalia told the Tribunal that she was still receiving the treatment and was unsure when it would be completed. The Tribunal granted the applicant more time to obtain advice from her treating doctor as to the likely duration of the treatment. The applicant did not provide to the Tribunal additional information within the time allowed. In response to a further contact from the Tribunal, on 20 September 2017 the applicant provided to the Tribunal a medical report indicating she is receiving treatment which would take up to eight months. The Tribunal considers that evidence inadequate. The report does not indicate that the treatment the applicant receives relates to the condition which formed the basis of the MOC opinion. The report does not specify the nature of the treatment and does not provide a clear indication of when the treatment will be completed. The Tribunal wrote to the applicant on 20 September 2017 advising her that the information she provided was inadequate and that the Tribunal was unwilling to grant an eight months extension on the basis of that evidence. The Tribunal informed the applicant that if further information was not received by 27 September 2017, it would proceed to a decision. The applicant has not made further contact with the Tribunal at the time of this decision. She has not requested more time to obtain medical evidence, nor has she provided any indication that she is obtaining further information requested by the Tribunal. In such circumstances, the Tribunal has decided to proceed to the decision on the available evidence.

11. 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.

12. Information before the Tribunal indicates that the MOC formed the opinion that the first named applicant did not meet the health requirements. The Tribunal acknowledges the applicant’s evidence that she is receiving medical treatment but due to the Tribunal’s concerns with the presented evidence set out above, the Tribunal has decided not to wait for the outcome of that treatment. On the material before it, the Tribunal finds on the basis of the MOC opinion that at the time of this decision, the first named applicant does not satisfy the health requirement in PIC 4005. It is not necessary for the Tribunal to determine how effective the applicant’s treatment is likely to be and whether she will meet the health requirements at some time in the future. At the time of this decision, the Tribunal is not satisfied the applicant meets cl. 804.225 and the second named applicant does not meet cl. 804.321. Further, the Tribunal finds that the second named applicant cannot meet the primary criteria for visa grant because he does not meet cl. 804.226.

    Conclusion

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

    DECISION

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

    Kira Raif
    Senior Member