Zhang (Migration)

[2020] AATA 3094

Zhang (Migration) [2020] AATA 3094 (22 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Yi Zhang

VISA APPLICANT:  Mrs Renxia Wang

CASE NUMBER:  1822768

DIBP REFERENCE(S):  BCC2018/703023

MEMBER:Ian Garnham

DATE:22 June 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 22 June 2020 at 4:10pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – health requirement – undergo medical assessment – likely to require health care or community services – correct test – decision under review affirmed          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, r 2.25; Schedule 2, cl 600.213; 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 Immigration on 2 July 2018 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 11 February 2018. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.600.213 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 review applicant appeared before the Tribunal by conference telephone, on 17 June 2020 to give evidence and present arguments.

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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. 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.

7. The Departmental (Department of Home Affairs (DHA)) delegate found that the visa applicant did not meet cl.600.213 of Schedule 2 of the Regulations, because they did not meet PIC 4005.

   Background:

8. The visa applicant is now 78yo, her daughter; who is also the review applicant and prospective sponsor, also invited her older sister to travel with her mother as tourists for up to 3 months.

9. The visa applicant underwent medical examinations on 14 March 2018.  The delegate wrote to the visa applicant on 29 May 2018 and; advised that a Medical Officer of the Commonwealth (MOC) had assessed that the visa applicant did not meet the health requirement necessary for the grant of the visa.[1]  The delegate advised the applicants that further evidence and comments would be considered and further medical reports would be assessed by the MOC.  No further information was provided by the applicants.

   [1] AT F: 71 (DHA)

10. On 2 July 2018 the delegate refused the visa applicant’s visa application.  On the same day the review applicant’s older sister’s visa was granted.  She chose not to travel and remained in China with her mother.

11. Before this hearing the tribunal wrote to the review applicant and, among other things, provided her with an opportunity for the visa applicant to obtain further medical reports.  This would allow the applicants to seek a further MOC assessment against the health requirement necessary for the grant of the visa.           

    Consideration:

12. In the present case, the temporary visa the applicant is seeking is specified in Legislative Instrument IMMI 15/144.  The visa applicant is in a class of persons that must be medically assessed in accordance with the terms of the instrument (cl.4005(1)(aa) & (ab)).

13. 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).

14. In this case the MOC found that the visa applicant did not meet PIC 4005(1)(c)(ii)(A) of Schedule 4 of the Regulations.  That is, the visa applicant is not; …free from a disease or condition in relation to which: the provision of health care or community services would be likely to: result in significant cost to the Australian community in the areas of health care and community services. 

15. In determining whether a person meets PIC 4005(1)(a), (b) or (c) regulation.2.25A requires the Tribunal to seek the opinion of a MOC. 

16. In this case the applicants declined the opportunity to seek a current MOC opinion before the hearing.  In her various submissions and at the hearing; the review applicant requested that the tribunal hold over the review until next year when the visa applicant’s health has improved.  In this case the MOC opinion is now over 2 years old.

17. Regulation 2.25A(3) requires that when an opinion of a MOC is required, the Tribunal must take it be correct.  It states:

    (3)  The Minister is to take the opinion of the Medical Officer of the Commonwealth on a matter referred to in subregulation (1) or (2) to be correct for the purposes of deciding whether a person meets a requirement or satisfies a criterion.

18. However, the tribunal 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.

19. In this case, the MOC identified the medical condition to which the criterion was applied, the MOC also identified the form and level of the condition:

    the applicant has severe functional impairment due to likely cognitive impairment, requiring significant assistance with activities of daily living.

    The MOC also referred to a hypothetical person who suffers from this level of the impairment condition, when assessing the information.  I am satisfied that the MOC opinion is properly made.

20. Therefore, the visa applicant does not satsify PIC 4005(1)(c)(ii)(A) of the Regulations.

21. It follows, that the visa applicant cannot meet subclause 600.213(a) of the Regulations. This means the visa applicant cannot satisfy clause 600.213 of the Regulations and the visa must be refused.

22. The Tribunal affirms the decision under review.

    DECISION

23. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

    Ian Garnham
    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.