Winoto (Migration)

[2024] AATA 138

Winoto (Migration) [2024] AATA 138 (5 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jemmy Siswanto Winoto
Ms Isabella Setiawati
Miss Karen Winoto
Miss Nicole Winoto

CASE NUMBER:  2117796

HOME AFFAIRS REFERENCE(S):          B2019/6493556

MEMBER:Karen McNamara

DATE:5 January 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the first named applicant a Business Skills (Provisional) (class EB) visa.

·   The Tribunal does not have jurisdiction in this matter in relation to the second, third and fourth named applicants.

Statement made on 05 January 2024 at 5:44pm

CATCHWORDS
MIGRATION – Business Skills (Provisional) (Class EB) visa – Subclass 188 (Business Innovation and Investment (Provisional)) – health criteria – invitation to obtain a further opinion of a Medical Officer of the Commonwealth (MOC) – severe chronic renal disease – significant cost to the Australian community – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360
Migration Regulations 1994 (Cth), r 2.25A; Schedule 2, cls 188.249, 188.311; Schedule 4, PIC 4005

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 9 November 2021, to refuse to grant the applicants Business Skills (Provisional) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 5 December 2019. On 9 November 2021, the delegate refused to grant the visas on the basis that Mr Jemmy Siswanto Winoto (now referred to as the first named applicant) did not satisfy cl 188.213 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.

3. The delegate also found that the second named applicant, Ms Isabella Setiawati, third named applicant, Miss Karen Winoto and fourth named applicant Miss Nicole Winoto could not be granted a Subclass 188 visa, as they did not meet the secondary visa criterion (cl.188.311), requiring them to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 188 visa.

4. The applicants lodged an application for review with the Tribunal on 29 November 2021. The review application was accompanied by a copy of the delegate’s decision.

5. On 8 February 2022, the Tribunal wrote to the applicants (dispatched by email to the authorised recipient/representative), noting that the applicants had departed Australia and sought confirmation as to whether they wished to continue with their application for review.

6. On 11 March 2022, the Tribunal further wrote to the applicants (dispatched by email to the authorised recipient/representative) affording opportunity for a further opinion to be obtained from a Medical Officer of the Commonwealth. The email was accompanied by “Request For A Further Opinion From A Medical Officer Of The Commonwealth - MR Division form and requested the applicant to return the completed form by 8 April 2022.

7. On 8 April 2022, the authorised recipient/representative, via email requested an extension of time to respond stating “ we are still waiting for result from medical person for the applicant. Kindly allow another 14 days.”

8. By way of return email on 8 April 2022, the Tribunal agreed to grant the applicants an extension of time up to 22 April 2022, to provide information.

9. On 20 April 2022, the authorised recipient/representative provided the Tribunal with a submission dated 20 March 2022, stating inter alia that the applicant decided not to obtain a further opinion from another Medical Officer of the Commonwealth as he believed “that another opinion from another Medical Officer is going to provide the same result in regard to hypothetical patients with the same condition.” The submission additionally asserts that Mr Winoto would not be relying on Australian medical services and therefore “ the conclusion that his condition would at some stage in the future limit the ability of other Australian Citizens or Permanent Residents to have access to treatment, are unfounded.”

10. The submission was accompanied by a completed Request For A Further Opinion From A Medical Officer Of The Commonwealth - MR Division form stating the applicants did not wish the AAT to obtain a further opinion from a Medical Officer of the Commonwealth. The form was signed by the authorised representative and dated 20 March 2022.

11. On the 21 August 2023, the Tribunal wrote to the review applicants pursuant to section 359(2) of the Act (dispatched by email to the authorised recipient), requesting the applicants provide by 4 September 2023, current and updated information to support their application meets the requirements of cl.188.249, as relevant to their case.

12. The Tribunal noted in its invitation, that Tribunal records show that on 11 March 2022, the applicants were invited to obtain a further opinion of a Medical Officer of the Commonwealth (MOC). On 20 March 2022, the authorised representative advised the Tribunal that Mr Winoto declined the invitation to obtain a further opinion. It was further submitted that Mr Winoto intended to provide medical reports from specialists in support of his case. The Tribunal noted to date that no further information has been provided to the Tribunal.

13. The Tribunal additionally noted that the delegate was not satisfied that the first named applicant met the requirements of PIC 4005, for the purpose of cl 188.213 in Schedule 2 of the Migration Regulations, However, this provision does not contain reference to PIC 4005. The applicable provision in this matter is cl.188.249 in Schedule 2 to the Regulations.

14. Additionally on 21 August 2023, the Tribunal wrote to the applicants (dispatched by email to the authorised recipient/representative) affording them opportunity to obtain a further opinion from a Medical Officer of the Commonwealth. The email was accompanied by “Request For A Further Opinion From A Medical Officer Of The Commonwealth - MR Division form and requested the applicant to return the completed form by 4 September 2023.

15. On the 6 September 2023, the authorised representative advised the Tribunal as follows “May we request an extension of time to provide the medical letter, the applicant is travelling to Singapore to meet his specialist as it is not possible to request via email. We were hoping to provide it to you by 4 Sept but unfortunately we could not and this email was not sent on time as it was on draft instead of being sent. Kindly allow further 28 days to provide this letter. My sincere apology. Thank you.[1]”

    [1] Prepared and transcribed as submitted by representative

16. On 7 September 2023, the Tribunal replied to the representative, advising that the presiding Member was unavailable until October and the Tribunal would respond once the Member’s direction is received.

17. On 12 September 2023, the representative provided a written submission to the Tribunal accompanied by a letter from the applicant’s Doctor dated 6 September 2023, refuting the report of the MOC dated 4 April 2021(sic). (MOC reports are dated 14 April and 9 September 2021). The submission also included a letter dated 15 July 2021 from Dr Lye Wai Choong, a list of three real estate properties in Australia and a letter from AXA dated 31 August 2023.

18. On 12 October 2023, the Tribunal invited the review applicants under s.360 of the Migration Act 1958 (the Act) (dispatched by email to the authorised recipient) to appear before the Tribunal on 2 November 2023.

19. On 2 November 2023, Mr Jemmy Siswanto Winoto, appeared before the Tribunal via Microsoft Teams video, to give evidence and present arguments. The Tribunal also received oral evidence from Ms Isabella Setiawati and Miss Karen Winoto.

20. The Tribunal exercised its discretion to hold the hearing by video. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.

21. At the hearing the Tribunal discussed with the applicants that the only issue before the Tribunal is whether the opinion of the MOC complies with the regulations. Where a MOC opinion is properly made, the Tribunal must take that opinion to be correct.

22. The Tribunal afforded the applicant and his family opportunity to comment on the delegate’s decision. The applicant refutes the MOC’s findings on the basis he asserts his condition does not restrict him from travelling and leading a fulfilled life. The applicant claims that he would not be relying on the Australian medical system for treatment.

23. The Tribunal noted the information before it and that the applicant had previously declined the Tribunal’s offer to arrange a further MOC opinion. The applicant told the Tribunal that he intended to visit his Doctor in Singapore to obtain an up-to-date assessment of his condition and that he wished to submit said report to the Tribunal. The Tribunal noted that since the MOC report dated 9 September 2021, the applicant had provided to the Tribunal a letter from his doctor dated 6 September 2023 and invited the applicant to obtain a further MOC opinion, in which contemporary medical information pertaining to the applicant would be provided to the MOC.

24. Post hearing on 2 November 2023, the Tribunal wrote to the applicants (dispatched by email to the authorised recipient/representative) affording opportunity for a further opinion to be obtained from a Medical Officer of the Commonwealth. The email was accompanied by “Request For A Further Opinion From A Medical Officer Of The Commonwealth - MR Division form and requested the applicant to return the completed form by 9 November 2023.

25. On 8 November 2023, the representative provided to the Tribunal a completed Request For A Further Opinion From A Medical Officer Of The Commonwealth - MR Division form, evidence of payment and requested an extension of 14 days to “provide information or further medical evidence for consideration by the Medical Officer of the Commonwealth. Mr Winoto will be travelling to Singapore to obtain this further information.”

26. On 9 November 2023, the Tribunal advised the representative via email that an extension of time to provide additional medical information was granted to 23 November 2023.

27. On 23 November 2023, the representative wrote to the Tribunal via email seeking an additional extension until 10 December. The representative’s email noted “ The applicant is away in New Zealand on a family holiday. He will be returning to Indonesia on the 1st December.

    He will be seeing his doctor on his return and should have the additional documents to send to you by December 10th. We would like to request an extension until the 10th December in order for him to have had the time to physically meet with his doctor.”

28. On 27 November 2023, the Tribunal responded to the representative’s request (sent to the applicants’ authorised recipient/representative via the last email address provided in connection with the review), noting as follows;

    ‘The Tribunal notes your further request for an extension for your client Mr Jemmy Siswanto Winto to provide medical evidence.

    The Tribunal additionally notes that Mr Winto has been afforded numerous extensions and opportunities to provide medical evidence and obtain a further MOC opinion.

    In this instance the Member has agreed to grant the extension to 10 December 2023, however please note that no further extension will be granted given the ample opportunity your client has already been afforded by the Tribunal to provide further information. All information your client seeks to be provided to the MOC, should be provided to the Tribunal no later than 10 December 2023.’

29. As at the time of this decision, the Tribunal has received no response from the applicants or an authorised representative of the applicants, nor has contemporary medical information pertaining to the first named applicant been provided.

30. On 12 December 2023, the Tribunal arranged for a further opinion from the MOC and provided all relevant medical documentation currently before the Tribunal in relation to this matter.

31. A report from the MOC dated 15 December 2023 was provided to the Tribunal.

32. On the 18 December 2023, the Tribunal wrote to the applicants pursuant to section 359(A) of the Act (dispatched by email to the authorised recipient/representative), providing a copy of the MOC report dated 15 December 2023 and sought a response or comments in reply to that opinion by 2 January 2024.

33. The Tribunal further noted that this information is relevant because clause 188.249 in Schedule 2 to the Migration Regulations 1994, requires that that Mr Jemmy Siswanto Winoto meets public interest criterion 4005 (PIC 4005). If this criterion is not met, the visa cannot be granted, and the Tribunal must affirm the decision under review.

34. The invitation was sent to the last address provided in connection with the review and advised that, if the comments or response were not provided in writing by 2 January 2024, the Tribunal may make a decision on the review without taking any further action to obtain the applicants’ views on the information.

35. The review applicants have not provided the comments within the prescribed period and no extension has been sought or granted. In these circumstances, pursuant to s.359C(2) the Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

36. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

37. The Tribunal notes that numerous evidence and submissions were lodged by or on behalf of the applicant. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein. The Tribunal also has before it the Department file containing all information before the delegate at the time of their decision.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

39. 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.

40. The applicant in this case is a 50-year-old citizen of Indonesia. At the time of application, the applicant was 46 years old.

41. A report from the MOC dated 15 December 2023 was provided to the Tribunal. This report considered the information available to date concerning the applicant, including but not limited to;

    ·Immigration medical examinations dated 25 March 2021

    ·Laboratory reports including serum creatinine results dated 25 Mar 2021, 19 Oct 2022 & 22 Jul 2023

    ·Renal ultrasound report dated 2 Nov 2022

    ·Specialist reports from Nephrologist Dr Maria Riastuti lryaningrum dated 13 Apr 2021, 8 Nov 2022 & 22 Jul 2023;

    ·Specialist reports from Nephrologist Dr Lye Wai Choong & Dr Lingga Ramot Gumelar dated 15 Jul 2021 & 6 Sep 2023 respectively

    ·Letters from migration agent (lnvestOZ) dated 2 Aug 2021, 20 Mar 2022 & 6,12 Sep 2023

    ·Tax invoices from centre for kidney diseases Pte Ltd dated from 2 Apr 2018 to 15 Jul 2021

    ·Undated non-English documents from AXA Financial

    ·Reference letter from PT AXA Financial Indonesia dated 31 Aug 2023 (for health insurance cover)

    ·Document from Assist card dated 31 Aug 2023 (assumed for travel insurance)

    ·Copy of email correspondences between the Department of Home Affairs (dated 9 Nov 2021), AAT (dated 8, 20, 29 Apr 2022, 14,15 Jul 2022, 21 Aug 2023, 6,7,12 Sep 2023, 25,27 Oct 2023, 8,9,23,27 Nov 2023) and migration agent (lnvestOZ)

    ·Form 884 Opinion of a Medical Officer of the Commonwealth from Bupa medical Visa Services dated 14 April 2021 and 9 September 2021

    ·Decision record from the Department of Home Affairs dated 9 November 2021

    ·Documents for Request for a further opinion from a Medical Officer of the Commonwealth dated 30 March 2022 and 7 November 2023

    ·Letter from the AAT Request for Further Medical Opinion dated 12 December 2023

    ·Noted serum creatinine results 2.46 mg/dL(eGFR 31) and 2.93 mg/dl (eGFR 24) dated Oct 2014 & Jul 2021 respectively as per Nephrologist report from Dr Lye Wai Choong dated 15 Jul 2021

    ·Diagnosis of chronic kidney disease at stage 48 and progressed to stage 58 (associated with renal anemia, hyperphosphatemia & hypocalcemia) as per nephrologist reports from Dr Maria Riastuti lryaningrum dated 13 Apr 2021 & 8 Nov 2022 respectively.

42. The report found that the first named applicant had been assessed against PIC 4005 for the period of a permanent stay in Australia. The report found that the applicant did not satisfy PIC 4005(1) ( c)(ii)(A) and 4005(1)(c )(ii)(B) in Schedule 4 to the Migration Regulations.

43. The MOC identified the medical condition to which the public interest criterion had been applied (severe chronic renal disease) and the form or level of the condition suffered by the applicant. The MOC applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition.

44. The MOC as indicated in 41 above, had regard to the information provided and available to them regarding the applicant, and is assessed against the policy settings for the costing period from 1 July 2019, significant cost threshold on 1 Sep 2021, and the latest Nephrology Conditions Notes for Guidance June 2023.

45. The issue before the Tribunal is whether the opinion of the MOC complies with/is authorised by the regulations (r.2.25A as prescribed in Schedule 2 to the Migration Regulations 1994).

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

46. 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.

47. 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).

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

49. In determining whether a person meets PIC 4005(1)(a), (b) or (c) reg 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: reg 2.25A(3).

    Is a MOC opinion required?

1. 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.

2. The Tribunal has before it, three opinions from Medical Officers of the Commonwealth in relation to the applicant. All three opinions come to the same conclusion, being the applicant does not satisfy PIC 4005(1) (c) (ii) (A) and 4005(1)(c )(ii)(B) in Schedule 4 to the Migration Regulations.

3. The MOC in their report of 15 December 2023, identified the form or level of the condition suffered by the applicant as ‘severe chronic renal disease’. The MOC applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition. The MOC states that ‘A hypothetical person in Australia with the same condition as the applicant, at the same severity, would be likely to require long term specialist health care services, including but not limited to renal replacement services and kidney transplant. I consider that the provision of health care services to the hypothetical person in the circumstances defined above would also be likely to result in a significant prejudice to access to the Australian community in the area of health care. This is because dialysis and renal transplantation, based on advice from the Department of Health are currently services in short supply; that is, there are already insufficient resources available to meet current national demand and failure to obtain required access to this service would be likely to seriously disadvantage current Australian citizens and permanent residents. This condition is likely to be Progressive.’

4. The applicant has been assessed for the period of a permanent stay in Australia.[2]

   [2] On 1 July 2019, the time period used for estimating significant costs by the MOC’s for permanent and provisional applicants was reduced to a maximum of 10 years.

5. The MOC states that a hypothetical person with this disease or condition, at the same severity as the applicant, would likely to require health care or community services during the period specified. These services would likely to include medical services, organ transplants (including haematopoietic stem cell transplants) and dialysis and concludes 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 or community services and prejudice the access of an Australian citizen or permanent resident to health care or community services. The MOC estimates total cost of $290,160.

6. After considering all of the above, the Tribunal is satisfied that it has obtained an opinion from a Medical Officer of the Commonwealth, the most recent being 15 December 2023. The Tribunal finds it is satisfied for the above reasons that the opinion is a valid opinion and must be taken by the Tribunal to be correct.

7. Accordingly, based on the opinion of the MOC, the first named applicant does not satisfy Public Interest Criterion 4005(1)(c). It therefore follows that the first named applicant does not satisfy cl.188.249 of the regulations.

   Jurisdiction in relation to the second named, third named and fourth named applicants

8. Section 347(2) of the Act specifies who has the right to apply for review of a decision that is reviewable under Part 5 of the Act.  In the case of a decision described in s.338(2) of the Act, an application for review may only be made by the non-citizen who is the subject of the decision and is physically present in the migration zone when the application for review is made: s.347(2)(a) and s.347(3) of the Act.  The term migration zone is defined in s.5(1) of the Act and generally means the Australian States and Territories.

9. Department records indicate the second named applicant (Ms Isabella Setiawati), third named applciant (Miss Karen Winoto) and fourth named applicant (Miss Nicole Winoto) were offshore at the time of the primary decision on 9 November 2021 and at the time the application for review was lodged on 29 November 2021. In the circumstances, the Tribunal finds that Ms Isabella Setiawati, Miss Karen Winoto and Miss Nicole Winoto, were not in the migration zone at the relevant time. 

10. The applications for review made by Ms Isabella Setiawati, Miss Karen Winoto and Miss Nicole Winoto do not meet the requirements of s.347 of the Act and accordingly, the Tribunal does not have jurisdiction in relation to the second named, third named and fourth named applicants.

11. The Tribunal notes that the delegate’s decision dated 9 November 2021, clearly stated the Ms Isabella Setiawati, Miss Karen Winoto and Miss Nicole Winoto did not have right of merits review.

12. As the first named applicant 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 first named applicant a Business Skills (Provisional) (class EB) visa.

    ·   The Tribunal does not have jurisdiction in this matter in relation to the second, third and fourth named applicants.

    Karen McNamara
    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.