SONI (Migration)

[2018] AATA 1059

SONI (Migration) [2018] AATA 1059 (19 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr PREM KUMAR SONI
Mrs HAZEL IRENE SONI

CASE NUMBER:  1703315

DIBP REFERENCE(S):  CLF2009/167573

MEMBER:Ann Brandon-Baker

DATE:19 March 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 19 March 2018 at 9:42am

CATCHWORDS

Migration – Aged Parent (Residence) (Class BP) visa – Subclass 804 (Aged Parent) – Must satisfy health requirements – Medical Officer of the Commonwealth opinion provided – Applicant does not satisfy sub-subparagraph Public Interest Criteria 4005(1)(c)(ii)(A) – Ministerial intervention sought

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994 r 2.25A Schedule 2 cl 804.225 Schedule 4 Criteria 4005

CASES

Robinson v MIMIA (2005) 148 FCR 182
Ramlu v MIMIA [2005] FMCA 1735

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 14 February 2017 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 14 December 2009. 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.

3. The Tribunal wrote to the applicants on 5 January 2018 inviting them to attend a hearing in respect of the decisions to refuse to grant them Aged Parent (Residence) (Class BP) visas.

4. The applicants declined the invitation asking the Tribunal to affirm the decision, acknowledging that the primary applicant did not and would not meet the health criteria in PIC 4005. The applicants asked the Tribunal to refer the decision to the Minister for Home Affairs to direct that he use his discretion to nevertheless grant them visas on compassionate and compelling grounds.

5. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 was reported as having a severe functional impairment due to Parkinson disease and that the condition was likely to be progressive.

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

8. 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.

9. 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 certain temporary visas, the applicant is excluded from the requirement to be free from a disease or condition likely to result in significant cost in the areas of health care and community services: PIC 4005(3).

10. As the applicant in this case has applied for a permanent visa, the exclusion provision in PIC 4005(3) does not apply and the applicant in this case must satisfy PIC 4005(1)(c)(ii)(A).

11. 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?

    MOC opinion - required or obtained

12. 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.

13. On 30 November 2016 the MOC provided an opinion in relation to the primary applicant against the PIC 4005.

14. The MOC found that the applicant does not satisfy sub-subparagraph PIC4005(1)(c)(ii)(A) in Schedule 4 the Migration Regulations.

15. The OC found that the applicant had a sever functional impairment due to Parkinson disease which required significant assistance with activities of daily living and that the 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.

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

    MINISTERIAL INTERVENTION

17. The Tribunal has considered the totality of the applicants’ circumstances including the following;

    a.The applicant is cared for by his wife, the secondary applicant and their daughter and son-in-law without the need for commonwealth assistance;

    b.The applicant is unable to travel due to the advanced stage of his condition, Parkinson’s disease, and his age, 85 years;

    c.If the applicants were forced to depart Australia, their daughter would have to travel with them in order to provide the applicant with full time care, thus potentially putting to an end her two healthcare businesses which employ ten Australian citizens; and

    d.The applicants are self-sufficient financially, receiving an overseas pension and interest for substantial cash assets. They also own their own home.

18. The Tribunal recommends the department refer the application to the Minister for his favourable consideration.

    CONCLUSION

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

    DECISION

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

    A B Baker
    Senior 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)Sub-subparagraph (1) (c) (ii) (A) does not apply if:

    (a)the applicant would not be eligible for the provision of the health care or community services; and

    (b)the ineligibility would be due to the temporary visa for which the applicant is applying being of a particular subclass; and

    (c)the subclass is not specified by the Minister in an instrument in writing made under subparagraph (2) (b) (ii).