SALMA (Migration) - [2019] AATA 1085

SALMA (Migration) [2019] AATA 1085 (21 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms UMME SALMA
Master S M MAKEEM ARHAM
Master S M SAFEEN ARHAM
Mr S M DIDAR HOSSAIN
CASE NUMBER:  1832300
DIBP REFERENCE(S):  BCC2018/1277897
MEMBER:Karen McNamara
DATE:21 May 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.
Statement made on 21 May 2019 at 12:13pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 – Temporary Graduate (Post-Study Work) stream – health criteria not met – secondary applicant – assessed for period of one year six months – significant cost of provision of health care or community services for temporary visa – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359(A)
Migration Regulations 1994, Schedule 2, cl 485.216 (3), Schedule 4, PIC 4005, r 2.25A(3)
CASES

Blair v MIMA [2001] FCA 1014
Han v Minister for Home Affairs & Anor [2018] FCCA 2207

JP1 & Ors v MIAC [2008] FMCA 970
MIMA v Seligman (1999) 85 FCR 115
Ramlu v MIMIA [2005] FMCA 1735
Robinson v MIMIA (2005) 148 FCR 182
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of decisions made by a delegate of the Minister for Immigration on 15 October 2018 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 17 March 2018. 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.485.216 (3) 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.
A Medical Officer of the Commonwealth (MOC) assessed secondary applicant Master S M Makeem Arham against PIC 4005 for a period of one year and six months, temporary stay in Australia and on 7 June 2018, gave an opinion that he did not satisfy PIC 4005 (1)( c)(ii) (A).
The applicants have sought review of the decision to refuse to grant the visas.
The applicants (represented by the primary applicant Mrs Umme Salma) appeared before the Tribunal on 18 April 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages. The applicant chose to use the services of the translator as required.
The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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’s son Master S M Makeem Arham is a person with moderate developmental delay associated with trisomy 21.
Background
The applicants undertook health examinations and were assessed against the health requirement for temporary stay in Australia. On 7 June 2018 a MOC gave an opinion that Master SM Makeem Arham did not satisfy PIC 4005 (1)( c)(ii) (A).
On 7 November 2018 the applicants lodged an application for review with the Tribunal.
On 6 February 2019 the Tribunal invited the applicants to obtain a further opinion from a MOC.
On 18^th February 2019, the applicants requested a second opinion from a MOC. Included with the request was:
·     Receipt for the amount of $520 being payment for Request for a Further Opinion from a Medical Officer of the Commonwealth.
·     Request for a Further Opinion from a Medical Officer of the Commonwealth signed and dated 16 February 2019; and
·     A letter from Harsha Gowda (Paediatric VMO; Canterbury Hospital) of Campsie Family Medical Centre dated 18 December 2018.
A report from the Review MOC (RMOC) dated 21 February 2019 was provided to the Tribunal. This report considered the information available to date concerning Master SM Makeem Arham, including but not limited to the Immigration medical examination dated 12 April 2018, preschool developmental summary from Koorana Child and Family Services dated 6 July 2017, reports from Paediatricians Dr Allan Kelly dated 22 May 2018, Dr Albert Mansour dated 28 August 2018 and Dr Harsha Gowda dated 18 December 2018. The RMOC indicated Dr Gowda’s costings had been noted.
The report found that the secondary applicant Master SM Makeem Arham had been assessed against PIC 4005 for the period of temporary stay in Australia (one year and six months). The report found that he did not satisfy PIC 4005(1)( c)(ii)(A).
The RMOC identified the medical condition to which the public interest criterion had been applied and the form or level of the condition suffered by the applicant. The RMOC applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition.
The RMOC as indicated in 13 above had regard to the information provided and available to them regarding the applicant.
On 15 April 2019, the applicants’ representative advised the Tribunal via email that the applicants had not been notified of the outcome of the RMOC review. The representative made submissions in so far as bringing to the Tribunal’s attention Department policy in regard to the assessment of ‘significant costs’ and requested, the Tribunal inform the RMOC of Department Policy in regard to the assessment of significant costs “in case the RMOC is not aware of it.”
On 17 April 2019, the Tribunal provided the applicants with a copy of the RMOC opinion dated 21 February 2019. Further on the 17 April 2019, the Tribunal wrote to the applicant under section 359(A), providing an additional copy of the 21 February 2019 report and sought a response or comments in reply to that opinion by 1 May 2019.
On 17 April 2019, following receipt of the first copy of the RMOC report dated 21 February 2019, the applicant’s representative submitted that:
“ the RMOC has not referred to the government policy on significant cost for a temporary residence visa. We request that this be brought to the RMOC’s attention and that a determination be made by the RMOC with that policy being considered. It is hard for us to otherwise see how the RMOC came to the finding of “significant cost.
If the RMOC did consider the government policy on significant cost for a temporary visa, could that be confirmed by the RMOC.”
At the hearing on the 18 April 2019, the Tribunal advised the applicant that it had received an email from the Department in relation to the opinion of the RMOC and advised the applicant of the breakdown of costs pertaining to the RMOC’s assessment of significant costs. At the hearing the Tribunal advised the applicant that the Tribunal would provide this information to her in writing under section 359(A).
Following the hearing, the Tribunal wrote to the applicant on 18 April 2019 under section 359A confirming that the RMOC had regard to the issue of significant cost and provided a breakdown of costs pertaining to the RMOC’s assessment of significant cost. The applicant was invited to provide a response and/or comments to the information by 2 May 2019.
As of the date of this decision no response has been received by the Tribunal.
At the hearing of 18 April 2019, the applicant was invited to comment on the Tribunal’s preliminary view on the information before it, that the RMOC’s opinion is valid. The applicant did not provide a response or comment.
As noted by the representative, the Tribunal is required to take the opinion of the MOC to be correct for the purposes of deciding whether a person meets a requirement or satisfies the criterion. The representative brought to the Tribunal’s attention Han v Minister for Home Affairs & Anor [2018] FCCA 2207 in which the Court considered whether the MOC’s opinion was in accordance with the law.
The Tribunal has considered the applicants submissions in so far as the RMOC’s application of Department policy in regard to significant costs and whether the RMOC’s opinion was in accordance with the law. The Tribunal notes that the representative provided a copy of Han v Minister for Home Affairs & Anor [2018] FCCA 2207 for purpose of reference to summary of relevant case law.
Where the MOC opinion relates to PIC 4005(1) ( c) (ii)(A) i.e. that provision of health care or community services relating to the disease or condition would be likely to result in significant cost to the Australian community, the MOC is not obliged to state what the significant cost would be in order for the MOC opinion to be valid. [1] It is for the MOC to determine whether a cost is significant based on his or her medical judgment.[2] Nor is the MOC obliged to explain why a particular cost is considered to be a significant cost.[3]
[1] JP1 & Ors v MIAC [2008] FMCA 970 (Riley FM, 22 August 2008) at [13], citing Blair v MIMA [2001] FCA 1014 (Carr J, 31 July 2001) at [46]. The Court in JP1 was considering a MOC opinion in relation to (then) PIC 4005(c) for an applicant with HIV.
[2] JP1 & Ors v MIAC [2008] FMCA 970 (Riley FM, 22 August 2008) at [33] referring to MIMA v Seligman (1999) 85 FCR 115 at [53].
[3] JP1 & Ors v MIAC [2008] FMCA 970 (Riley FM, 22 August 2008) at [57].
The Tribunal has provided the applicant with specific information relating to the RMOC’s assessment of significant costs and afforded the applicant an opportunity to provide a response or comment. It is noted by the Tribunal that the applicant did not provide a response or comment at the hearing and has not responded in writing at the time of this decision.
Is the applicant free from the relevant diseases or conditions (PIC 4005(1)(a), (b), (c))?
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.
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).
In the present case, the temporary visa the applicant is seeking is not specified in Legislative Instrument IMMI 16/067. As such the health care and community services listed in instrument IMMI 11/073 are excluded from consideration.
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?
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.
The Tribunal has before it, two opinions from Medical Officers of the Commonwealth in relation to Master SM Makeem Arham. Both opinions come to the same conclusion being the applicant does not satisfy PIC 4005(1) ( c) (ii) (A).
The RMOC in their report of 21 February 2019 identified the form or level of the condition suffered by Master SM Makeem Arham as moderate developmental delay associated with trisomy 21 and applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition.
The RMOC states that the applicant has been assessed for the period of one year and six months.
After considering all of the above, the Tribunal is satisfied that it has obtained an opinion from a Medical Officer of the Commonwealth, the most recent being 21 February 2019. The Tribunal finds it is satisfied for the above reasons that the opinion is a valid opinion and must be taken by the Tribunal to be correct.
Accordingly, based on the opinion of the RMOC, the applicant does not satisfy public interest criterion 4005(1)(c).
As one of the applicants has not satisfied the requirements of PIC 4005, the Tribunal must affirm the decision under review.
DECISION
The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

Karen McNamara

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.