Watson (Migration)

[2020] AATA 5012

Watson (Migration) [2020] AATA 5012 (4 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Elizabeth Mary Watson

CASE NUMBER:  1932651

DIBP REFERENCE(S):  CLF2016/95412

MEMBER:Mary Urquhart

DATE:4 September 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Contributory Aged Parent (Residence) (Class DG) visa.

Statement made on 04 September 2020 at 12:31pm

CATCHWORDS

MIGRATION – Contributory Aged Parent (Residence) (Class DG) visa – Subclass 864 (Contributory Aged Parent) – health requirements – Medical Officer of the Commonwealth opinion – strong compassionate circumstances – referral for Ministerial Intervention – decision under review affirmed        

LEGISLATION

Migration Act 1958, ss 65, 351
Migration Regulations 1994, Schedule 2, cl 864.223; Public Interest Criterion 4005; r 2.25

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 a decision made by a delegate of the Minister for Immigration on 1 November 2019 to refuse to grant the applicant a Contributory Aged Parent (Residence) (Class DG) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 9 December 2016. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.864.223 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 applicant was invited to appear before the Tribunal on 2 September 2020. Due to her medical condition she was unable to attend. She was represented by Mr James Martin Smith her son in law. Due to Covid 19 Pandemic hearing arrangements, Mr Smith appeared before the Tribunal by telephone to give evidence and present arguments.

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

5. The Tribunal recommends the matter be referred to the Minister under s.351 of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The applicant Mrs Elizabeth Mary Watson b. 8 September 1944 is suffering from advanced breast cancer and is in the late stages of that condition. She is married to Ronald Watson, who is the non-migrating spouse. He is living in Glasgow. Due to Covid 19 travel restrictions he has been unable to visit Australia. He currently holds a visitor visa.

7. The evidence is that Mrs Watson has two adult children Yvonne Smith living in WA and Scott Watson who resides in Qld. Yvonne is married to James Martin Smith. She and her husband are both Australian citizens and have a daughter aged 14, who is the applicant’s only grandchild. Mrs Watson is cared for by her daughter. Mr Scott Watson is an Australian Permanent resident.

8. Mr James Smith gave evidence of the concerns of the family should Mrs Watson be required to depart Australia. In doing so he stressed the family understand that the applicant cannot meet the health requirements and that there is no new evidence. They are aware Mrs Watson does not have long to live. They are concerned as to her illness and frailty in having to undertake a flight home given her medical condition.

9. The history of the matter reveals that the applicant was invited by the Department to comment on the MOC opinion and was given an opportunity to seek a further opinion. In response an extension of time was requested and the applicant indicated they would seek a breakdown of costs from the Department. The file reveals that costings were provided on 20 September 2019. The applicant was again invited to comment. The application was refused by the delegate.

10. The applicant then sought a review.

11. On 12 May 2020 the Tribunal wrote to the applicant and provided an opportunity for them to obtain a further MOC opinion. The Tribunal received a response indicting no further MOC opinion would be sought.

12. 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 is a person with an advanced form of breast cancer.

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

13. 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.

14. 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).

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

16. 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?

17. 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.

18. The Department file reveals that on 2 July 2019 the applicant was requested to provide certain medical information and undertake a medical assessment.

19. On 14 August 2019 the MOC gave an opinion that the applicant did not meet health requirements. The MOC opinion stated:

    “The applicant is a 74 year old person with:

    - Advanced breast cancer

    Form and severity of the applicant's condition: the applicant has an advanced form of breast cancer with known metastatic spread to multiple bony sites.

    Provision of services to a hypothetical person in Australia with the same condition as the applicant and at the same severity: a hypothetical person in Australia with the same condition as the applicant. at the same severity, would be likely to require specialist health care services and supported care services.

    This condition is likely to be Progressive.

    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

    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.

    In preparing this opinion, I have had regard to the information available to date concerning the applicant, including, but not limited to the visa medical assessment dated 30 July 2019 and the CT report from Perth Radiological Clinic dated 6 June 2019”.

20. The Tribunal takes into account the MOC opinion dated 14 August 2019. The Tribunal is satisfied that the MOC has applied the correct test.

21. Accordingly, based on the opinion of the MOC, the applicant does not satisfy public interest criterion 4005.

22. At the hearing the Tribunal indicated that whilst sympathetic to the applicant’s circumstances it had no discretion in regard to its finding. As the applicant does not satisfy an essential criterion for the visa, the Tribunal has no choice but to affirm the decision under review. The Tribunal discussed s.351 of the Act.

    Ministerial Intervention s. 351 of the Act

23. Section 351 of the Act states that only the Minister can intervene and substitute a decision that is more favourable to the applicant if it is in the public interest to do so. Such decision is entirely at his or her discretion. 

24. The Minister has issued the “Minister’s Guidelines on Ministerial Powers” set out in the Procedures Advice Manual (known as PAM3). The Guidelines outline that the Minister will consider exercising his powers under section 351 where an individual’s situation involves “unique or exceptional circumstances”. As the Tribunal has made a decision in this case it is now open to the applicant to seek Ministerial Intervention. The Tribunal has considered the matter and recommends the Minister intervene in this case on the basis of the compassionate circumstances of the case.

25. The Tribunal takes the issue of recommending the referral of any matter to the Minister seriously. It also notes that the theme running through the relevant Ministerial guidelines on this matter is that there will always be unusual or exceptional circumstances where intervention by the Minister to grant a visa is warranted because to do so would align with Australian community expectations

26. In this case, the Tribunal has great sympathy for the applicant and her daughter, her son in law, granddaughter, all Australian citizens and her son an Australian Permanent resident.  The applicant’s circumstances are dire. She has advanced breast cancer which has metastasised and spread. She will be 76 next birthday (8 August 2020). Having considered the ministerial guidelines relating to the Minister's discretionary power under s.351, set out in PAM3 'Minister's guidelines on ministerial powers (s345, s351, s391, s417, s454 and s501J)' the Tribunal considers there are strong compassionate circumstances in this case such that a failure to recognize them would result in continuing distress and hardship to an Australian family unit. It also considers that there are compassionate circumstances regarding the age and health of the applicant such that a failure to recognize them would result in irreparable harm and continuing hardship to that person, and for these reasons the Tribunal considers that the case should be referred to the Department to be brought to the Minister's attention.

27. The Tribunal recommends that this case be referred to the Department to be brought to the Minister’s attention.

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

    DECISION

29. The Tribunal affirms the decision not to grant the applicant a Contributory Aged Parent (Residence) (Class DG) visa.

    Mary Urquhart
    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.