Singh (Migration) - [2022] AATA 2706

Singh (Migration) [2022] AATA 2706 (27 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Dashmesh Singh
VISA APPLICANT:  Ms Rinki Singh
REPRESENTATIVE:  Ms Sara Khodajoo
CASE NUMBER:  2101180
HOME AFFAIRS REFERENCE(S):          BCC2015/3388796
MEMBER:Meredith Jackson
DATE:27 June 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Contributory Parent (Migrant) (Class CA) visa.

Statement made on 27 June 2022 at 2:34pm
CATCHWORDS

MIGRATION – Contributory Parent (Class CA) visa – Subclass 143 (Migrant) visa –Health Public Interest Criterion 4005 not met– a valid MOC opinion – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03,1.16, 2.25, Schedule 2, cl 143.230, Schedule 4

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 January 2021 to refuse to grant the visa applicant a Contributory Parent (Migrant) (Class CA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 17 November 2015. The delegate refused to grant the visa on the basis that she did not satisfy cl 143.230 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4005 of Schedule 4 to the Regulations was not met.
The review applicant appeared before the Tribunal on 27 June 2022 to give evidence and present arguments.
The review applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
BACKGROUND
The review applicant is Dashmesh Singh, born in 1980. He is a citizen of Australia by grant. The visa applicant, his mother Rinki Singh, was born in 1958. Ms Singh is a resident of India. Her other son, Manjeet Singh, who was also an Australian resident, passed away on 26 December 2020. Ms Singh’s spouse, Trilok Singh, and another child live in India. Rinki Singh applied for the visa on 17 November 2015. Trilok Singh is not an applicant for the visa, however non-migrating members of the applicant’s family unit are required to satisfy the health requirement. Trilok Singh was found on 23 November 2020 by a Medical Officer of the Commonwealth not to meet the medical requirement for the visa PIC 4005. The visa was refused and the applicant sought review. On 12 April 2021 the review applicant declined the Tribunal’s invitation to seek a further MOC opinion.
ISSUES AND LAW
The issue in this review is whether each member of the family unit of the visa applicant meets Public Interest Criterion (PIC) 4005 as required by the criteria for the grant of the visa. PIC 4005, as it applies to this case, is extracted in the attachment to this decision. It requires the visa applicant, in certain circumstances, to undergo medical assessment and to be free of certain diseases or conditions that may impact on the community.
Clause 143.230 of the Regulations requires that if the applicant was not the holder of a Subclass 173 (Contributory Parent (Temporary)) visa at the time of application, each member of the family unit of the applicant who is not an applicant for a Subclass 143 (Contributory Parent) visa must satisfy the public interest criteria mentioned in the item in the table that relates to the applicant.
Public interest criterion 4005(1)(ab) requires that the applicant comply with any request by a Medical Officer of the Commonwealth (MOC) to undertake a medical assessment.
CONSIDERATION OF CLAIMS AND EVIDENCE
Has the applicant complied with a request to undertake a medical assessment (PIC 4005(1)(ab)?
At the time of the visa application, the visa applicant was not the holder of a Subclass 173 visa. An opinion of the MOC has been provided on three occasions, on 21 August 2019, on 7 April 2020 and most recently, on 23 November 2020. On each occasion, the MOC formed an opinion that Trilok Singh did not meet the health requirements in PIC 4005. The opinion of 23 November 2020, which is the particular focus of this review being the most recent opinion issued, estimated the total cost for medical services and pharmaceuticals to be at a significant level, that of $391,000 over five years, where the significance threshold is set at $AUD51,000 per year.
The review applicant provided the delegate’s decision to the Tribunal. It records that following requests from the Department, advice was received from medical practitioners which was passed on to the MOC for consideration. The delegate states that on 23 November 2020, after taking all additional information into consideration, the MOC determined that Trilok Singh did not meet the medical requirements of PIC 4005. As a result, the visa was refused and the applicant applied for review of the decision.
Invitation for a further Medical Officer of the Commonwealth opinion
On 16 March 2021, the Tribunal wrote to the review applicant to ask whether Trilok Singh wished to obtain a further MOC opinion. The Tribunal enclosed a copy of the MOC opinion of 23 November 2020, which disclosed that Trilok Singh is a 70 year old person with severe multiple myeloma; and that a hypothetical person with the same condition at the same severity would be likely to require health care and/or community services likely to result in a significant cost to the Australian community. The Tribunal offered to arrange for a further opinion to be obtained. The Tribunal advised that, if the review applicant wished to proceed to a further opinion, it was important to provide any new medical information to the Tribunal as soon as possible so that it may be taken into consideration.
On 12 April 2021 the review applicant advised the Tribunal that Trilok Singh did not wish to obtain a further MOC opinion.
Claims on review
On 9 June 2022, the Tribunal wrote to the review applicant inviting him to provide information in support of his claim that the non-migrating family member of the visa applicant, Trilok Singh, met PIC 4005. The Tribunal noted that the review applicant had on 12 April 2021, declined to obtain a further MOC and indicated that if he wished to proceed, any response or information was to be provided by 23 June 2022. The applicant was also invited to a hearing set down for 27 June 2022.
On 16 June 2022, the review applicant accepted the hearing invitation. In an accompanying email, his representative described the specified date for receipt of information as “short notice”. On 23 June the representative submitted a support letter from Trilok Singh’s treating physician in India, Dr Gautam Goyal (oncologist) dated 16 June 2022; a medication receipt dated 16 June 2022, a pathology report dated 20 June 2022; and a submission addressing the applicant’s case. The submission stated that the MOC opinion of 23 November 2020 should be re-assessed to determine whether it had been lawfully made. In particular, the representative raised the method of assessment of Trilok Singh’s condition which, she claimed, did not indicate the stage of his cancer and took into account information that was over 14 months old. The representative referred the Tribunal to a medical report and supporting evidence provided by Dr Goyal, in which he stated that Trilok Singh was in “complete remission” and the cost of his medication in India is the equivalent of approximately $AUD200 a month. Further, the submission stated, Trilok Singh had been assessed in India and granted a Visitor visa to travel to Australia in January 2022, with no medical treatment for his multiple myeloma required during the ensuing six-week visit. The representative also stated that Trilok Singh had advised the Department he had no intention of migrating to Australia on a permanent basis.
At the hearing, the review applicant reiterated his view that his father’s health status had changed for the better, he was in remission and that his father had no intention of moving to Australia. He stated that the intention of his mother, Rinki Singh, in seeking the visa was to permanently migrate to Australia, to assist him in his business in which she is a director. He stated she wished to come and go from India with ease. Long-term there were family in India capable of looking after his father, he said, and his father was fit and currently very little troubled by his condition, as evidenced by the visit to Australia which occurred without complications, he said.
Is the opinion of the Medical Officer of the Commonwealth a valid opinion?
The forming a view as to whether the MOC opinion of 23 November 2020 is validly made, the Tribunal notes that the opinion indicates that Trilok Singh did not meet the medical requirements of public interest criteria 4005; the opinion is made by a Medical Officer of the Commonwealth (defined in r.1.03 to mean a medical practitioner appointed by the Minister in writing under reg 1.16AA to be a Medical Officer of the Commonwealth for the purposes of the Regulations)[1]; the opinion is on a matter referred to in r.2.25A(1) for the purposes of an opinion on whether a person meets certain health requirements; and it addresses satisfaction of these requirements at the time of the Minister’s decision.[2]
[1] In Reynolds v MIAC [2010] FMCA 6, the Court found that the Tribunal was entitled to presume that the MOC was a MOC without referring to any evidence, until the appointment was challenged (at [127]).
[2] Blair v MIMA [2001] FCA 1014 at [19] citing MIMA v Seligman (1999) 85 FCR 115 at [48]–[49].
The review applicant’s submission refers to the time period in which an applicant must be free from a disease or condition, noting that the period for estimating health care and community service costs against the significant cost threshold is five years, unless the applicant has a reasonably predictable permanent condition or reduced life expectancy (where it is 10 years). The Tribunal notes that to meet PIC 4005(1)(c), the relevant period varies depending upon the type of visa sought. For all permanent visa applicants and applicants for a temporary visa of a subclass specified in a written instrument (generally provisional visas), the relevant period is the period commencing when the application is made.[3] No end date is specified. The Tribunal concurs with the representative’s calculation that the MOC opinion of 23 November 2020 is based on a period of five years. The Tribunal is satisfied the opinion correctly refers to the relevant period.
[3] PIC 4005(1)(c)(i), 4005(2), 4006A(1)(c)(i), 4006A(1A), 4007(1)(c)(i), 4007(1A). For the relevant instrument see “VisaSc” tab in Register of Instruments – Health Criteria.
With regard to the review applicant’s claim that a MOC should express the likely costs of health care or community services with reference to a hypothetical person with the same form and level of the applicant’s condition, the Tribunal has examined the MOC opinion of 23 November 2020 and notes it addresses the severity and level of the applicant’s condition in the context of a hypothetical person with the disease or condition and the same severity.
The review applicant made extended references in the hearing regarding the quality of the MOC opinion compared with the assessment advanced by Dr Gopal, the applicant’s treating physician. He questioned in particular whether a medical officer in Australia could properly assess a condition from a distance, compared with a treating physician in situ. The Tribunal indicated to the applicant that it would take his argument into account, but that r. 2.25A, which is appended to this decision, provides that the opinion of the Medical Officer of the Commonwealth is to be taken to be correct by the decision maker (in this case the Tribunal) for the purposes of deciding whether a person meets a requirement or satisfies a criterion. The Tribunal noted that an opportunity for a further MOC opinion was declined by the review applicant on 12 April 2021 and no further MOC opinion has been requested. In the hearing, the review applicant’s representative asked the Tribunal whether a further MOC opinion was a possibility prior to a decision being made. The Tribunal indicated it may be available, however the review applicant stated that he did not wish to proceed to a further opinion. He expressed that he expected it would have the same result as the previous ones. He stated that he had not been happy with the decision made, and his father’s doctor in India was also very surprised to see the outcome was not positive. He noted that it was a decision made on the information initially provided to the Department, and while he did not have anything against doctors in Australia, his father’s treating physician is accepted as one of the best oncologists in India, and the reason he has not asked for another opinion is because it is “not going to work”.
The review applicant stated in submissions and the hearing that his father does not have intentions to migrate to Australia: there is no way he would do that as he has his life in India, he stated. Further, his father has his daughter and son-in-law there to care for him, plus his wife would be coming and going on and offshore from Australia, were the visa to be granted. The review applicant stated that his mother faces an unpredictable future in India, whereas his father has a good life, possibly for a very long time according to his treating physician. His mother, he said, wants to be in Australia help her only remaining son expand his Australian business, where she is a director, and she would also make sure everything is fine at home as well. The review applicant said his mother is a very good businesswoman and has good sense; she is intelligent and educated and he needs her support.
The Tribunal has taken into account the applicant’s arguments, however for the reasons above, the Tribunal is satisfied the opinion of the 23 November 2020 is correctly made and is a valid opinion. The Tribunal notes that the review applicant Dashmesh Singh continues to question its validity, however he has indicated on two separate occasions, including in the hearing, that he does not wish to seek a further opinion from a Medical Officer of the Commonwealth regarding Trilok Singh’s health.
Conclusion
The Tribunal has carefully considered the information provided by the review applicant and expressed to the applicant in the hearing that while his views about his father’s condition are important and noted, there is no provision for the Tribunal to set aside an opinion of a Medical Officer of the Commonwealth where that opinion is validly made. The Tribunal is satisfied that that the MOC opinion is a valid opinion. The Tribunal said it was open to the review applicant to seek a further opinion, however the Tribunal accepted he did not wish to do so.
Having taken into account all the circumstances of the matter, the Tribunal finds that the visa applicant Rinki Singh does not satisfy PIC 4005(1)(ab) and does not meet cl.143.230 at the time of this decision.
As the visa applicant has not satisfied the requirements for the grant of the visa, the Tribunal must affirm the decision under review.
DECISION
The Tribunal affirms the decision not to grant the visa applicant a Contributory Parent (Migrant) (Class CA) visa.
Meredith Jackson
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.
…
Regulation 2.25A Referral to Medical Officers of the Commonwealth
(1)  In determining whether an applicant satisfies the criteria for the grant of a visa, the Minister must seek the opinion of a Medical Officer of the Commonwealth on whether a person (whether the applicant or another person) meets the requirements of paragraph 4005(1)(a), 4005(1)(b), 4005(1)(c), 4007(1)(a), 4007(1)(b) or 4007(1)(c) of Schedule 4 unless:
(a)  the application is for a temporary visa and there is no information known to Immigration (either through the application or otherwise) to the effect that the person may not meet any of those requirements; or
(b)  the application is for a permanent visa that is made from a country (whether Australia or a foreign country) specified in a legislative instrument made by the Minister for the purposes of this paragraph and there is no information known to Immigration (either through the application or otherwise) to the effect that the person may not meet any of those requirements.
Note:    For foreign country, see section 2B of the Acts Interpretation Act 1901.
(2)  In determining whether an applicant satisfies the criteria for the grant of a Medical Treatment (Visitor) (Class UB) visa, if there is information known to Immigration (either through the application or otherwise) to the effect that the requirement in subclause 602.212(2)(d) has not been met, the Minister must seek the opinion of a Medical Officer of the Commonwealth on whether the requirement has been met.
(3)  The Minister is to take the opinion of the Medical Officer of the Commonwealth on a matter referred to in subregulation (1) or (2) to be correct for the purposes of deciding whether a person meets a requirement or satisfies a criterion.