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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading SALMA (Migration)

Details

AGLC: SALMA (Migration) [2019] AATA 1085
Case: [2019] AATA 1085
Decision Date: 21 May 2019

CaseChat Overview and Summary

This matter concerned an application for review of a decision not to grant Skilled (Provisional) (Class VC) visas to the applicants. The primary dispute revolved around whether the secondary applicant, Master S M Makeem Arham, met Public Interest Criterion (PIC) 4005, which requires applicants to be free of certain diseases or conditions that may impact the community. The applicants' son had been assessed as having moderate developmental delay associated with trisomy 21. The case was heard by Karen McNamara.

The legal issue before the court was whether the secondary applicant satisfied PIC 4005(1)(c)(ii)(A), specifically in relation to the potential significant cost of healthcare or community services for a temporary visa holder. This required an assessment of the applicant's medical condition against the criteria, considering the duration of the proposed temporary stay in Australia, which was assessed as one year and six months. The court needed to determine if the medical officer's opinion, which found the applicant did not satisfy the criterion, was correct.

The court affirmed the decision under review, finding that the secondary applicant did not satisfy PIC 4005(1)(c)(ii)(A). A Medical Officer of the Commonwealth (MOC) had initially provided an opinion to this effect, and a subsequent Review MOC (RMOC) report, which considered various medical reports and the applicant's condition, also concluded that the applicant did not meet the criterion for the assessed period of temporary stay. The RMOC applied the statutory criteria by reference to a hypothetical person with the applicant's condition. Despite submissions from the applicants' representative regarding departmental policy on assessing "significant costs," the Tribunal concluded that as one of the applicants had not satisfied the requirements of PIC 4005, the decision not to grant the visas had to be affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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 18th 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.”

Evidence

Evidence Before The Court

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 18th 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.”

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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