Yusuf (Migration)

[2022] AATA 5246

Yusuf (Migration) [2022] AATA 5246 (29 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Nasro Artan Yusuf

REPRESENTATIVE:  Mr Gareth John Lewis (MARN: 0319248)

CASE NUMBER:  2017124

HOME AFFAIRS REFERENCE(S):          CLF2017/112578

MEMBER:Moira Brophy

DATE:29 November 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 29 November 2022 at 4:04pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) – Subclass 835 (Remaining Relative) – health criteria – MOC opinion – functional impairment – right side hemiplegia – severe aphasia – continuing hardship to an Australian family unit – irreparable harm and continuing hardship – Ministerial Intervention requested – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), r 2.25A; Schedule 2, cl 835.223; 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 a decision made by a delegate of the Minister for Home Affairs on 6 November 2020 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant initially applied for the visa on 22 June 2012 seeking to satisfy the criteria in Part 115 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) that as the applicant, she was the remaining relative of an Australian relative. The delegate refused to grant the visa on the basis that cl 115.211 was not met because the delegate was not satisfied that the visa applicant met the definition of remaining relative in reg 1.15.

3. The applicant sought review of the decision of the delegate and the matter came before the Tribunal (differently constituted) on 14 January 2015.

4. On 15 January 2015, the Tribunal remitted the application for an Other Family (Migrant) (Class BO) visa for reconsideration, with the direction that the following criteria for a Subclass 115 (Remaining Relative) visa were met: cl 115.211 of the Regulations; and cl 115.221 of the Regulations.

5. On 6 November 2020, the delegate found the applicant did not meet the criteria for the grant of the visa as the applicant had not complied with a request by the Medical Officer of the Commonwealth to provide a medical assessment and the delegate was not satisfied the applicant was able to meet Public Interest Criterion (PIC) 4005(1)(ab).The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 835.223 of the Regulations because the health criteria in PIC 4005 of Schedule 4 to the Regulations was not met.

6. The applicant sought merits review of the decision.

7. The applicant was represented in relation to the review.

8. On 4 October 2022, the representative of the applicant advised the Tribunal that the applicant waived her right to a hearing and requested the matter be determined on the papers.

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

   Background

10. The visa applicant was born in Somalia in 1978. She arrived in Australia on 9 September 2014 on a Visitor (Subclass 601) visa. At the time of application, the applicant claimed she was the remaining relative of an Australian relative, that relative being her mother, Ms Faduma Hussein. The visa applicant claimed that her father was deceased and her mother and three siblings resided in Australia. She said that four other siblings of her family were deceased.

11. The visa applicant stated she was separated from her biological mother at birth and she was given up for adoption to a friend of her mothers. She then travelled to the United States of America as a refugee. Her adopted family remained in Somalia. It was claimed that her adopted parents are now deceased. It was claimed that the visa applicant was single, having divorced her husband, with whom she had no children.

12. The mother of the applicant, Ms Faduma Hussein, first entered Australia on 2 January 2002 on a Humanitarian visa. She became an Australian citizen on 11 March, 2004.

13. The previously constituted Tribunal was provided with DNA testing to establish the maternity of the visa applicant. This found that the relative chance of Ms Faduma Hussein being the mother of the visa applicant was 99.97%. The Tribunal accepted, on the basis of the DNA testing, that the visa applicant is the daughter of Ms Faduma Hussein.

14. The previous Tribunal considered whether arrangements entered into subsequent to the birth of the applicant would be recognised as a valid adoption. The Tribunal found that the arrangement whereby the biological mother arranged for the visa applicant to be cared for by neighbours who were friends of hers was not an arrangement in accordance with the usual practice, or a recognised custom, in the culture of Somalia at the time the arrangement was put in place. The arrangement was put in place as the biological mother considered she had no alternative. She was required to return to live with her husband who she had been separated from for about 18 months, over which period she fell pregnant and gave birth to the visa applicant. Evidence was given that if her husband found out about the birth of the child, it is likely that she would have been prosecuted for the offence of adultery and may have faced punishment for that offence, possibly including death by stoning. This would have prevented the biological mother from placing the care of the visa applicant with any of her relatives. The Tribunal found that the arrangement put in place for the visa applicant to be cared for by neighbours of the review applicant after her birth did not meet the definition of customary adoption in reg 1.04(2).

15. As the previous Tribunal concluded that the visa applicant was not adopted by the people who were caring for her after her birth, either by formal adoption arrangements or other arrangements pursuant to reg 1.04(2), the Tribunal found that the people who were caring for the visa applicant after her birth and their children were not relevant when considering whether the visa applicant has any near relatives other than near relatives who are usually resident in Australia. The applicant advised the previous Tribunal her biological father died in 1985. There was no available information about any children of the biological father. The Tribunal was satisfied that the biological father of the visa applicant was deceased. Further, the Tribunal was satisfied that the biological father does not have any children who could be considered as half siblings and therefore near relatives of the visa applicant. The visa applicant provided details of her near relatives, being her biological mother and the children of her biological mother and indicated the surviving children of her mother were all resident in Australia. The movement records of the applicant’s biological mother and her children were corroborative of that evidence. Four of the children of the biological mother were listed as being deceased. This was consistent with the information provided previously by the biological mother in other applications to the Department. The Tribunal was satisfied that these children are deceased. Accordingly, the Tribunal found that all surviving near relatives of the visa applicant are usually resident in Australia and are Australian citizens.

16. As stated above in paras four and five, the previously constituted Tribunal remitted the matter, having been satisfied the applicant met the relevant criteria for the grant of the visa.

17. As part of the requirements for the grant of the visa, the applicant was required to satisfy PIC 4005 (a copy of which is attached to this decision). On 31 January 2019, the Department requested that the applicant complete the relevant health examinations for her application. The applicant attended an appointment with BUPA Medical Visa Services on 14 February 2019.

18. On 21 February 2019, BUPA Medical Visa Services notified the applicant that she was required to provide additional medical information before it could complete its health assessment. It was noted that it was a requirement for the grant of the visa that an applicant satisfy PIC 4005. The applicant was given the opportunity to provide further documentation.

19. On 27 August 2020, as the applicant had not provided the documents as requested, her health status was updated to ‘health not completed’ and on 6 November 2020, the delegate found the applicant did not satisfy the criteria in cl 835.223 because the applicant was not able to meet PIC 4005 and the application was refused.

20. On 26 November 2020, the applicant sought review of that decision.

21. On 6 September 2022, the Tribunal wrote to the applicant and provided a copy of the previous MOC opinion and advised the applicant she had the opportunity for a further opinion to be obtained from a MOC.

22. On 19 September 2022, at the request of the applicant, a further MOC opinion was provided. The MOC considered the applicant did not satisfy PIC 4005(1)(c) in Schedule 4 to the Regulations. The MOC opined the applicant had functional impairment due to the sequelae of subsequent strokes which resulted in right side hemiplegia and severe aphasia. The applicant mobilises with a wheelchair, is unable to speak or write and is dependent on a carer for the activities of daily living. As was the case in the previous MOC, the MOC found that a hypothetical person with the condition, at the same severity as the applicant, would be likely to require ongoing care and disability support, and that the condition was likely to be permanent. He considered that a hypothetical person with the same disease or condition at the same severity as the applicant would be likely to require Commonwealth disability support services.  In coming to this decision, the MOC had regard to the information available including but not limited to the visa medical assessment and associated investigations dated 14 February 2019 and 20 May 2021.The MOC noted there was a drastic change in the applicant’s ability for personal care between the medical examinations dated 14 February 2019 and 20 May 2021 with the applicant in February 2019 being able to walk about with crutches with preserved ability for activity of daily living, to in May 2021 being wheelchair bound and requiring full assistance for all personal care. The MOC noted the applicant had her first stroke in October 2017 and a second in May 2019 which resulted in right side hemiplegia and severe aphasia The MOC concluded that the applicant did not meet the health requirement.

    CONSIDERATION OF CLAIMS AND EVIDENCE

23. The issue in this review is whether the visa applicant meets 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 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 severe functional impairment. She was assessed as having a condition that was permanent and that would require a high level of community care services in the future.

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

24. 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.

25. Public Interest Criterion 4005(1)(c) requires the applicant to 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).

26. 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).

27. 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 MOC unless: the application is for a temporary visa and there is no information known to the department 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?

28. 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 PIC 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.

29. There have been two MOC opinions obtained in respect of the applicant's condition. These are dated 26 May 2021 and 19 September 2022. In each of the opinions, the MOC has concluded that the applicant does not meet the health requirement.

30. The Tribunal is satisfied that the opinions of the MOC have identified the medical condition, the form or level of that condition suffered by the applicant, and that they have correctly applied the statutory criteria in assessing whether the applicant meets the health requirement. There is nothing before the Tribunal which would indicate that there has been any flaw in respect of either of the opinions provided by the MOC.

31. As there is no discretion for the Tribunal to ignore the MOC opinion, and the Tribunal must take that opinion as correct, the Tribunal has no option but to accept the finding that the applicant does not meet the health requirement.

32. Accordingly, based on the opinion of the MOC, the applicant does not satisfy PIC 4005(1)(c). As the applicant has not satisfied the requirements of PIC 4005, the Tribunal must affirm the decision under review.

    Ministerial intervention

33. The Tribunal has significant sympathy for the applicant who is 44 years of age, and for her mother and family to whom she is very close, and accepts that the applicant would be unable to care for herself in the event that she has to depart Australia. The Tribunal also accepts that the departure of the applicant from Australia will have a significant negative impact on the Australian citizen sponsor and her other family members.

34. However, the Tribunal is unable to take these circumstances into account in assessing whether the applicant meets the essential criteria for the grant of the visa.

35. Having regard to the circumstances as outlined in the background above, the applicant’s and the sponsor’s limited time together as part of the one family, and the applicant's lack of other equivalent family support in USA; and having considered the ministerial guidelines relating to the Minister's discretionary power under s 351 of the Act, set out in PAM3  Guidelines on Ministerial Powers (s 345, s 351, s 391, s 417, s 454 and s 501J of the Act), the Tribunal considers there are strong compassionate circumstances in this case such that a failure to recognise them would result in continuing hardship to an Australian family unit. It also considers that there are compassionate circumstances regarding the age, health, and family history of the applicant, such that a failure to recognise 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.

36. The applicant may wish to submit further supporting submissions and evidence relevant to the Guidelines directly to the Minister.

    DECISION

37. The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

    Moira Brophy
    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.