Sleiman (Migration)

[2021] AATA 1162

Sleiman (Migration) [2021] AATA 1162 (16 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sayed Sleiman
Mrs Victorine Chaghoury

CASE NUMBER:  2011774

HOME AFFAIRS REFERENCE(S):          CLF2016/91338

MEMBER:David Crawshay

DATE:16 February 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 16 February 2021 at 4:35pm

CATCHWORDS

MIGRATION – Aged Parent (Residence) (Class BP) visa – Subclass 804 (Aged Parent) – applicant has not satisfied health criteria in Public Interest Criterion (‘PIC’) 4005 – valid RMOC opinion –decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 351, 360

Migration Regulations 1994, r.2.25A, Schedule 2, cl 804.225, Schedule 4

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 decisions made by a delegate of the Minister for Home Affairs on 13 July 2020 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 28 November 2016. The delegate refused to grant the first-named applicant’s 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 were not met. The delegate also refused to grant the secondary applicant’s visa on the basis that she was not a member of the family unit of a person who is the holder of a Subclass 804 visa. A copy of the delegate’s decision was provided by the applicant prior to hearing.

3. The applicants appeared before the Tribunal on 8 January 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Assaad Sleiman and Mr Ghady Sleiman, who are the sons of the applicants. Ms Assaad Sleiman is also the sponsor of the applicants. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages and was heard by means of teleconference.

4. The applicants were represented in relation to the review by their registered migration agent who attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 suffers from a form of multiple sclerosis (MS).

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

7. 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.

8. 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).

9. As the applicant in this case has applied for a permanent visa, the exclusion provision in PIC 4005(3) does not apply.

10. 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?

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. On 13 October 2020, a Review Medical Officer of the Commonwealth (RMOC) gave an opinion in relation to the applicant after the applicant requested such an opinion. The opinion relevantly provided as follows:

    The applicant has been assessed against Public Interest Criterion (PIC) 4005 [see attached extract] for the period of a permanent stay in Australia.

    The applicant does not satisfy sub-subparagraph PIC 4005(1)(c)(ii)(A) in Schedule 4 to the Migration Regulations.

    The applicant is a 68 year old person with:

    - Stable multiple sclerosis.

    Form and severity of the applicant's condition: The applicant has a stable form of multiple sclerosis which is currently maintained on immunomodulatory therapy. Provision of services to a hypothetical person with the applicant's condition: A hypothetical person with the same condition of a similar severity would be likely to require ongoing medical review and immunomodulatory therapy to achieve the best possible longterm outcome. This condition is likely to be Permanent.

    I consider that a hypothetical person with this disease or condition, at the same severity as the applicant, would be likely to require health care or community services during the period specified above.

    These services would be likely to include:

    Medical services

    Pharmaceuticals

    Provision of these health care and/or community services would be likely to result in a significant cost to the Australian community in the areas of health care and/or community services.

    [bracketed words in original]

13. Based on the RMOC opinion, on 11 December 2020 the Tribunal sent a s.359A letter to the applicant, through his representative, seeking his comment on or response to the opinion. On 22 December 2020, the applicant’s representative responded by acknowledging the Tribunal’s invitation and seeking a 28-day extension in order to provide further medical evidence based on their being recently engaged by the applicant and on the holiday period. On 24 December 2020, the Tribunal responded by refusing the extension request and reaffirming the hearing date of 8 January 2021. The Tribunal noted in its response that if it becomes necessary to provide any further information, this will be a decision to be made at the hearing.

14. On 6 January 2021, the applicant’s representative provided the Tribunal with submissions and some further documents, including a report of 18 December 2020 from a Consultant in Neurology and Clinical Neurophysiology, Dr M S Dowla, regarding the applicant. Dr Dowla’s report relevantly stated as follows:

    Relapsing remitting Multiple Sclerosis has not progressed. I discussed the treatment including Interferon and other oral immuno-modulating treatments. At the moment the prognosis depends on whether he is going to progress as a primary progressive disorder or remain in re lapsing remitting course. So far as of December 2020 he has not shown any clinical progression at all. I therefore believe that stronger immune-modulatory treatment is not indicated and suggested him to continue Rebif injection.

    I understand that he will get Rebif from Lebanon free of charge as a Lebanese citizen. The cost of Rebif is $902.99 x 12 = 10,835.88 per year (figure taken from Chemist warehouse). Mr Sleiman has proven to have the most mild variety of RRMS when apart from the cost of immunomodulatory treatment, the cost of other medical and ancillary care would be minimum. I would consider this to be around $1,100/year x 10 = $11,000.

15. At hearing, the Tribunal asked the applicant whether the provision of the above report meant that he was not seeking to challenge the validity of the RMOC opinion. His representative replied that, as Dr Dowla’s report (of which she only became aware after her letter to the Tribunal of 22 December 2020) gives similar costings to those in the RMOC opinion, the applicant will not be challenging its validity.

16. The Tribunal has considered the RMOC opinion. It has considered that it identifies the medical condition to which the public interest criterion has been applied and the form or level of the condition. It has considered that the RMOC has referred to the hypothetical person who suffers from the form or level of the applicant’s condition.

17. The Tribunal is satisfied that the RMOC has applied the correct test in relation to the applicant and is valid. It should therefore be taken to be correct and the Tribunal is satisfied that it is correct.

18. Accordingly, based on the opinion of the RMOC, the applicant does not satisfy public interest criterion 4005(1)(c).

19. As the applicant has not satisfied the requirements of PIC 4005, he does not satisfy cl.804.225 and the Tribunal must affirm the decision under review in respect of him. As the secondary applicant is not a member of the family unit of someone who, having satisfied the primary criteria, is the holder of a Subclass 804 visa, the Tribunal must affirm the decision under review in respect of her.

    MINISTERIAL INTERVENTION

20. At hearing, the Tribunal heard from the applicant about his circumstances. He told it that the issue should not be based on the medications he receives. He said that all his children are in Australia and he has no one left overseas. When questioned on this, the applicant confirmed that he had brothers and sisters in Lebanon. He said that he wants to stay with his children and his grandchildren in Australia.

21. Mr Assaad Sleiman told the Tribunal that his father has had MS since 2012 but has not relapsed. He said that, as someone who works in the medical industry, he was able to source the necessary medication at a cheaper price than that quoted by the applicant’s doctor – $96,000 over 10 years as opposed to around $108,000.

22. Mr Assaad Sleiman said that he works full-time and works night shifts, his wife works full-time and his brother works full-time. He said that his parents look after their children. He confirmed that he would provide an undertaking about any costs. He said that his father already receives his medications from Lebanon.

23. Mr Ghady Sleiman told the Tribunal that if his parents went back to Lebanon then he and his brother would need to stop work. He said that there are seven children among the families and that help is required. He said that his father is an independent person and does not rely on anyone else. He said that his condition is very stable. He said that a certification had submitted from a pharmacy in Lebanon to show that the medication has been given to his father free-of-charge. He said that his father has been residing in Australia for the past 10 years and had been seeing Dr Dowla since 2012, and that within that time Dr Dowla had only prescribed three prescriptions. He said that his father does not need to forfeit his Lebanese citizenship.

24. Mr Ghady Sleiman said that the effect of being separated would be huge and immense, and that his father would go through a large amount of emotional stress. He said that he and his brother would be able to pay in advance any figure they are required to.

25. Mr Ghady Sleiman said that there are three families at stake. He said that he is the director of a consultancy firm where his wife is one of the employees of that firm. He said that they work hard and that if there were no one to look after their children then they would be required to take a “big cut”.

26. The secondary applicant told the Tribunal that she would prefer to be allowed to stay in Australia because she cannot be with her husband away from her children and grandchildren. She said that her husband does not need any help from anyone, even at home. She said that he completes household chores as well as mowing the lawns and cutting wood. She said that the MS is not affecting him at all. She said that she performs many of the tasks for her children, including caring for her grandchildren. She said that she helps out for three days with one family and four days with the other. She said that she hoped the Tribunal would consider their matter in a compassionate and sympathetic way, as she had no other children except her two children in Australia.

27. The Tribunal gave the parties 21 days in which to provide further evidence in favour of a referral for ministerial intervention. This was in response to the representative’s request for 28 days. On 29 January 2021, the Tribunal received an email from the representative that comprised submissions of the same date, statutory declarations from Messrs Ghady and Assaad Sleiman and their wives, a letter from a pharmacist in Lebanon, a letter from a paediatrician, a number of financial documents related to the applicant’s sons and daughters-in-law and the NDIS price guide 2020-2021. The submissions purported to attach a letter from Dr Dowla although the Tribunal was not able to locate it in the email. In any case, the letter appears to be the aforementioned letter from Dr Dowla.

28. The Tribunal will treat the submissions under the same headings as appear in the submissions.

    Applicant’s health and medical expenses

29. The submissions reiterate an earlier submission that the applicant has the mildest variety of relapsing remitting multiple sclerosis (RRMS), his response to medication is really excellent, his MS has not progressed and stronger immune-modulatory treatment is not indicated. The submissions argue that the following points ought to be considered in the applicant’s favour: (1) the applicant has obtained the bulk of his medication free-of-charge from Lebanon and continues to do so; (2) the two prescriptions purchased in Australia were paid for by his sons and should any further prescriptions be needed in Australia the cost will be borne by his sons; (3) one of the applicant’s sons is entitled to a discount for medication owing to his employment; and (4) the cost of the medication is likely to decrease as the patent expires and generic competition lowers the price. The submissions argue that there is no cost to the Australian government for the applicant’s medication and this should weigh heavily in favour of the applicant remaining in Australia.

    Financial

30. The submissions state that the applicants are fully supported financially by Messrs Ghady and Assaad Sleiman and their wives and that they have the means by which to do so. The submissions argue that there is an economic benefit to the applicants being able to stay in Australia and be supported by their sons and daughters-in-law that would otherwise result in remittances to Lebanon if the applicant were forced to return there.

    Special needs grandchild & general childcare

31. The submissions lastly spoke about the parties’ grandchildren, including a grandson who suffers from multiple conditions such as cerebral palsy, attention deficit hyperactivity disorder and generalised anxiety disorder among other things, and the care that is provided to these children by the parties. The submissions state that the cost of home care services for the grandson suffering from multiple conditions would be in the order of $34,000-a-year. The submissions state that the applicants’ assistance has meant that the Australian taxpayer will save this amount.

32. Supporting statutory declarations from the applicant’s sons and daughters-in-law establish that the applicants are involved in the lives of their grandchildren – dividing their time between the two families and undertaking a number of tasks related to the household and the upbringing of the grandchildren. The declarants say that this allows them to focus on their employment. The father of the child suffering from multiple conditions declared in his statutory declaration that the applicants dedicate their lives for him. One of the declarants stated that the applicants had been in Australia for all but 25 months of the last 10 years.

    Consideration of a referral for ministerial intervention

33. Section 351 of the Act provides that the minister can substitute for a decision of a review tribunal a decision that is more favourable to a person if he thinks it is in the public interest to do so. The Tribunal specifically notes that cases having one or more unique or exceptional circumstances may be referred to the minister for possible consideration of the use of his intervention powers.

34. The Tribunal has considered the minister’s guidelines when coming to a decision about whether to make a referral to him for intervention under s.351, including those relating to “unique or exceptional circumstances”. Although the Tribunal considers that there are difficult circumstances faced by the Sleiman families as outlined in the Department and Tribunal files, including the submissions of 29 January 2021 and associated documents, it will not be referring the matter for ministerial intervention although it reminds the applicants that it is open to them to make their own request to the minister.

    DECISION

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

    David Crawshay
    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.