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Mozziconacci (Migration) [2018] AATA  1614  (12 April 2018)

Last Updated: 12 June 2018

Mozziconacci (Migration)  [2018] AATA 1614  (12 April 2018)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Mr Ugo Anton Orso Mozziconacci

CASE NUMBER: 1603902

DIBP REFERENCE(S): CLF2015/6306

COUNTRY OF REFERENCE: France

MEMBER: Kira Raif

DATE: 12 April 2018

PLACE OF DECISION: Sydney

DECISION: The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 (Child) visa:

• PIC 4007(2)(b) for the purposes of cl.802.223 of Schedule 2 to the Regulations.

Statement made on 12 April 2018 at 3:15pm

CATCHWORDS
Migration – Child (Residence) (Class BT) visa – Subclass 802 (Child) visa – Health 4007 not met – Adverse MOC opinion – Applicant has significant family links in Australia

LEGISLATION
Migration Act 1958, s. 65
Migration Regulations 1994, Schedule 2, Schedule 4. PIC 4007(2)(b) cl. 802.223, r.2.25A

CASES
Bui v MIMA [1999] FCA 118; (1999) 85 FCR 134
Robinson v MIMIA [2005] FCA 1626; (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 a decision made by a delegate of the Minister for Immigration on 4 March 2016 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).
2. The applicant is a national of France, born in 2009. The applicant applied for the visa on 2 February 2015. The delegate refused to grant the visa as the applicant did not satisfy cl.802.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the health criterion in Public Interest Criterion (PIC) 4007 of Schedule 4 to the Regulations was not met.
3. The applicant’s father gave oral evidence on behalf of the applicant. The father appeared before the Tribunal on 11 April 2018 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

Relevant law

4. The issue in this review is whether the visa applicant meets Public Interest Criterion (PIC) 4007 as required by the criteria for the grant of the visa. Public Interest Criterion 4007, 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. This last requirement may be waived in certain circumstances.
5. Clause 4007(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.
6. For specified temporary visas, certain specified health care and community services are excluded from this consideration: PIC 4007(1B). The requirement may also be waived in certain circumstances.
7. As the applicant in this case has applied for a permanent visa, the exemption provision in PIC 4007(1B) does not apply.
8. In determining whether a person meets PIC 4007(1)(a), (b) or (c), r.2.25A of the Regulations 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 to be correct: r.2.25A(3).

Is the applicant free from the relevant diseases or conditions (PIC 4007(1)(a), (b) or (c))?

9. On the evidence before the Tribunal, a MOC opinion is required.
10. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant undertook health examinations during the processing of the visa application. In April 2015 the MOC formed an opinion that the applicant did not meet the health requirements in PIC 4007(1)(c). The MOC opinion indicates that:

the applicant is a 5 year old person with severe functional impairment. Form and severity of the applicant’s condition: the applicant has impaired motor and language function, with limited capacity to communicate, secondary to an intra-cerebral haemorrhage that occurred after birth. Provision of services to a hypothetical person with a condition of comparable form and severity would include early intervention services, state disability services, educational support, Commonwealth support payments and ultimately residential care. This condition is likely to be permanent. The MOC considers 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 service during the period specified above. These services would be likely to include early intervention services, state disability services, special education services, Commonwealth disability services, residential care services. Provision of these health care and / or community services would likely to result in a significant cost to the Australian community in the areas of health care and / or community services.

11. The MOC provided the following costing information for the purpose of the waiver.

The estimated cost to the Australian community of the services identified in the 884 is likely to be

1. Early intervention services $12,000
2. Residential care services $507,620

100. Commonwealth disability services $1,470,216

4. State disability services $815,850
5. Special education services $170,651

Total cost $2,976,337

12. The delegate wrote to the applicant seeking comments on the above information and for the purpose of the waiver and the applicant provided additional evidence to the delegate. The delegate concluded that the potential costs were outweighed by compassionate and compelling circumstances or mitigating factors.
13. The applicant advised the Tribunal that he did not wish to seek review of the MOC opinion. 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] FCA 1626; (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.
14. The MOC opinion is that the applicant does not meet the health requirements. Based on the opinion of the MOC, the applicant does not satisfy PIC 4007(1)(c).

Should the requirements of PIC 4007(1)(c) be waived?

15. The requirement in PIC 4007(1)(c), to be free of a disease or condition that would impact on health or community services, may be waived if, among other things, the decision maker is satisfied that the granting of the visa would be unlikely to result in either ‘undue cost’ to the Australian community or ‘undue prejudice’ to the access to health care or community services of an Australian citizen or permanent resident: PIC 4007(2).
16. The evaluative judgment of whether the cost to the Australian community or prejudice to others is ‘undue’ may import considerations of compassionate or other circumstances: Bui v MIMA [1999] FCA 118; (1999) 85 FCR 134 (Bui) at 47. Over and above the consideration of the likelihood that cost or prejudice will be ‘undue’ there is also the discretionary element of the ministerial waiver. And within that discretion, compassionate circumstances or compelling circumstances may be relevant: Bui at 47. Departmental policy guidance on the exercise of this discretion is contained in the Procedures Advice Manual (PAM3). Broadly speaking, these relate to: family links in Australia and the impact on family members; occupational skills of the applicant or family members; assets or factors that may mitigate the costs or prejudice to access to care or services involved; available support from family or community groups; potential contribution to Australia by the applicant or family members; the immigration history of the applicant; other compelling and compassionate circumstances including location of the applicant and family members; and any other relevant factors.

Negative impact on Australian citizen children (particularly those children of the relationship if a Partner visa has been applied for or those children who are already residing in Australia) or result in immediate family members living apart.

17. The applicant’s written evidence to the Tribunal is that his parents and three siblings live in Australia. His parents are in the process of obtaining Australian citizenship and two of his siblings are Australian citizens. The applicant claims that if he is not granted the visa, his siblings who are Australian citizens would be forced to relocate from Australia which would be detrimental to them as they have a right to live in Australia and are settled in the Australian community. In oral evidence to the Tribunal the applicant’s father confirmed that they recently had another child. Of the five children, the eldest is in the process of obtaining Australian citizenship and all other children other than the visa applicant are Australian citizens.
18. The Tribunal accepts that the children attend school and are involved in various activities and are integrated into the Australian community. The Tribunal notes, however, that the applicant’s siblings are very young. The Tribunal is not satisfied that being ‘forced’ to relocate from Australia would cause hardship to these children as the Tribunal is not satisfied that, at their age, the children would experience any difficulties adapting to a new environment or a new country. They did so when the family moved from Australia to New Caledonia, although the Tribunal acknowledges that the children were younger at the time. As for their ‘right’ to live in Australia, the Tribunal is mindful that it is not uncommon for families to relocate to a different country despite their citizenship status. This is what this family has done by relocating to Australia earlier and subsequently moving to New Caledonia. The father’s evidence to the Tribunal is that when he was offered employment overseas, he took up such employment, uprooting the two children and relocating to a new country. Thus, the Tribunal does not accept that the fact of the children’s Australian citizenship necessarily means that the family must remain in Australia.
19. Nevertheless, the Tribunal accepts that the applicant’s parents and four siblings are Australian citizens or permanent residents and that the children were born in Australia, have settled here and consider Australia to be their home.
20. The Tribunal accepts that if the applicant is not granted the visa and the family decides not to leave Australia, immediate family members will live apart although the Tribunal does not consider that the family will decide to remain in Australia without the applicant.

Whether, if an Australian citizen sponsor were forced to relocate, it would negatively impact on their health

21. The applicant refers to his family’s settlement in Australia and notes that if he cannot remain in Australia, the entire family would have to relocate, given the age of the children. The Tribunal accepts that this is so. While the Tribunal accepts that a certain degree of hardship may be caused by the relocation, there is nothing to suggest that the relocation would adversely affect the health of the family members.
22. The father’s evidence to the Tribunal is that they will have adequate health services in France and relocation would not negatively impact on anyone’s health.

Whether the applicant and/or other working family members have occupational skills in high demand (refer to the Skilled Occupation List or the Consolidated Sponsored Occupation List for guidance)

23. The applicant is a minor child and has no skills that are in high demand.
24. The father’s evidence to the Tribunal is that his background is in economics and he has been working in contract administration and management. He now works as a project manager for a large construction company. His partner has a French tutoring business. The Tribunal acknowledges the father’s evidence that he had no difficulty finding employment in Tasmania and that at least in regional areas, his skills are in demand.

Whether the applicant and/or other family members have substantial assets or an ability to mitigate the costs/prejudice to access involved - for example, due to private care arrangements and/or support being available:

25. The applicant notes that the family has taken every opportunity to privately pay for the child’s medical needs. The child is enrolled in a tailored program which was paid for privately by the family, and in the representative’s submission, that is testament to the family’s capability of funding the child’s private health needs. The Tribunal does not accept that this is so. The fact that the child is enrolled in a program does not in any way indicate that the child’s substantial needs, as set out in the MOC opinion, can or will be met.
26. The applicant provided to the Tribunal various documents relating to his parents’ earning capability. It is stated that the father has the capability of earning up to $200,000 when he enters the Australian job market. The father told the Tribunal that his income is about $150,000 and he has savings exceeding $300,000 which shows that they can pay for the child’s medical costs privately. Again, the Tribunal does not consider this to be the case. The family will not have access to superannuation for some time and the savings of $300,000 constitute a very insubstantial proportion of the costs identified in the MOC opinion. The Tribunal is also mindful that there is no indication that the family’s entire savings would be contributed to the child’s medical needs, given that there are other young children whose living expenses will also need to be met.
27. In oral evidence the applicant’s father said that the cost of treatment should not be as high as indicated by MOC and the child is very healthy. The father states that all the expenses are paid from his own income and they have undergone special training on how to care for the child. The Tribunal accepts that evidence but also notes that according to the MOC costing, a substantial proportion of the costs relates to the Disability Services and the applicant would be entitled to these irrespective of the family’s income and savings.
28. The Tribunal is prepared to accept that the family has some capacity to mitigate the costs but the Tribunal considers this to be very limited, given the family’s assets and the nature of the costs involved.

Whether an Australia citizen sponsor would not be able to migrate to the applicant’s home country (for example, because same-sex migration to that country is not available)

29. The Tribunal accepts that if the visa is not granted, the entire family may be forced to relocate to France. The father told the Tribunal that he has not been to France for over five years and has not lived in that country for 15 years and if he had to live there, it would be like going to a new country. The Tribunal acknowledges that evidence, although the Tribunal is mindful that there is extended family in France, including grandparents. The father noted that the youngest child does not have French citizenship but there is no reason she could not acquire that since all other children are dual citizens.
30. The Tribunal finds that the sponsor and the family will be able to migrate to France, although the Tribunal accepts that there may be some hardship associated with relocation.

Whether the applicant has significant family links in Australia.

31. The applicant’s entire family, including parents and four siblings, are Australian permanent residents or citizens. The applicant has significant family links in Australia.
32. In his submission to the Tribunal the applicant outlines the family’s involvement in Australia, including employment and other links. The Tribunal accepts that the parents have been living in Australia for a number of years and that three of the applicant’s siblings were born in Australia.

Significant support from family or community groups

33. In his submission to the Tribunal the applicant claims that he needs a full-time carer and the parents have been providing such care and intend to do so. It is stated that the parents are participating in a number of health and education programs designed for children with disabilities and it is their intention that the child remains medication-free. The Tribunal accepts that evidence and accepts that the child has significant support from family, although the Tribunal is also mindful that, as the MOC opinion indicates, he will also be eligible for support from other sources.
34. The applicant presented a substantial number of supporting statements from various organisations, individuals, community representatives and politicians. He claims the family is of benefit to the Australian community. The Tribunal acknowledges that evidence and accepts there is support from community groups.

The potential contribution of the visa applicant and their family to Australia including skills, qualifications, English language ability and employment prospects that may assist the applicant and any dependants once in Australia

35. The applicant is a minor child and does not at present have the skills or qualifications to contribute to Australia.
36. His parents’ skills and ability to contribute have been addressed elsewhere. The Tribunal accepts that the child’s father is a skilled professional and has had no difficulties finding employment. The child’s mother has been running a successful business. The children participate in various activities and the evidence is that the children will be able to contribute to the community when they are older.

Any other compelling or compassionate factors including the location and circumstances of the applicant and/or sponsor’s family members

37. The applicant’s submission is that it would be devastating for the family to be uprooted and to have to leave Australia. The Tribunal accepts it may present difficulties and accepts the family would prefer to live in Australia. However, the Tribunal is also mindful that on the applicant’s evidence, his parents had lived in Australia for a number of years but then chose to move overseas because his father was offered employment and when they had two young children. They have lived overseas for a number of years before returning to Australia. The Tribunal is not satisfied that the family’s present situation is significantly different to their situation in the past when they decided to leave Australia – where they and the children were well settled – and to live elsewhere, although the Tribunal acknowledges that there are now more children born in Australia more recently.

The immigration history of the applicant (and sponsor/proposer, if applicable), including, for example, compliance to date with immigration requirements and any undertakings

38. Noting adverse is known about the applicant’s or the family’s immigration history.

Any other relevant factors

39. The father’s evidence to the Tribunal refers to strong involvement with the community. He spoke about a community project for which they did not get the tender. The family has active involvement with the French community in Tasmania and the father also runs a community organisation promoting social activities in the French community of Hobart. They have won awards and have been given grants by the state government. The Tribunal accepts that the family has close involvement with, and made contribution to, the community. The father refers to his voluntary work for bush care and community gardens. A number of supporting statements have been provided to the Tribunal. The Tribunal accepts the family has made significant contribution to the local community.
40. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found, having regard to the MOC opinion, that the applicant does not meet the health requirements and the financial cost to the community is very high, which the family is not able to mitigate to any meaningful extent. While the Tribunal accepts that it may be difficult for the family to relocate to France, the Tribunal has formed the view that it is possible to do that and that the children will be able to resettle in France, as they have the relevant language skills and will also have family support. Relocation would not adversely affect anyone’s health.
41. However, the Tribunal places significant weight on the fact that the applicant’s entire family, including parents and four siblings, reside in Australia and are Australian citizens or permanent residents. As the applicant is a minor, he cannot live independently, and if the visa is not granted, that would lead to the entire family having to leave the country and relocate to a new country that the children have little familiarity with. The Tribunal accepts that the entire family is well settled in Australia, the parents are employed and the older children attend schools and participate in multiple extracurricular activities, and the Tribunal accepts it would cause a degree of hardship if the family were to leave Australia. The Tribunal also accepts that the family is making a significant contribution to the community through their involvement in various activities and there is strong community support.
42. Having regard to all the circumstances, the Tribunal has formed the view that the granting of the visa would be unlikely to result in undue cost or undue prejudice within the terms of PIC 4007(2)(b). Therefore PIC 4007(1)(c) may be waived subject to the applicant satisfying all other requirements for the visa.

Conclusion

43. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for the visa.

DECISION

44. The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 (Child) visa:
    • PIC 4007(2)(b) for the purposes of cl.802.223 of Schedule 2 to the Regulations.

Kira Raif
Senior Member