Applicant: Gary Dickson Principal: Anna C. Dickson IRT Reference: N95/00654 #number 7704 [1996] IRTA 7704 (1 August 1996)

As a result of the coming into force of the Migration Reform Act 1992 on 1 September 1994 Australian migration law has undergone significant changes. In accordance with regulation 22 of the Migration Reform (Transitional Provisions) Regulations, the Principal's application in this case (if successful) will now result in the grant of a transitional (permanent) visa under the new law. For most purposes this will resemble the visa that would have been granted under the law in force before 1 September 1994. However Division 2 of Part 2 of the Migration Act 1958 (the Act) as in force before 1 September 1994 - which relates to the grant or refusal of visas - and the Regulations made for the purposes of that Division will continue to apply to the Principal's application. The Regulations which are applicable in this case are therefore the Migration (1993) Regulations.

In reaching its decision the Tribunal is bound by the Act and Regulations and applies relevant government policy. General policy guidelines are applied by the Tribunal unless there are cogent reasons to the contrary. General policy directions issued by the Minister pursuant to section 499 of the Act are applied wherever they are relevant. (See generally Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634 and Ali v Minister for Immigration, Local Government and Ethnic Affairs [1992] FCA 453; (1992) 38 FCR 144).

Some of the criteria to be satisfied are set out at 103.333 in Part 103 of Schedule 2. One of these criteria is public interest criteria 4005 which is set out in the fourth schedule. This states as follows:

(i) is free from tuberculosis or any other communicable disease of a fatal or serious nature which, in the opinion of a Commonwealth medical officer, is a threat to public health in Australia, and is not suspected of having contracted such a disease; and

(ii) if the applicant is a person from whom a Commonwealth medical officer 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 examination, has provided such an undertaking; and

(b) is free from any other disease or condition which, in the opinion of a Commonwealth medical officer, would be a danger to members of the Australian community; and

(c) is free of any disease or condition which, during the applicant's proposed period of stay in Australia, would, in the opinion of a Commonwealth medical officer:

(i) require significant care or significant treatment (or both) or

(ii) require care or treatment (or both) involving the use of community resources in short supply; or

(iii) prevent the applicant from pursing the applicant's intended occupation (if any) in Australia; or

(iv) would result in the applicant becoming a significant charge on public funds.

By virtue of regulation 103.36 the Principal's spouse has to satisfy the above criteria.

The above criteria, which relate to health, have to be satisfied as at the date of this decision. The Tribunal has held on a number of occasions that it has no power to question the opinion of the Commonwealth Medical Officer (CMO) - example Re Nelson (IRT Decision No. 28, delivered 11 September 1990) and Re Papaioannou (IRT Decision No. 113, delivered 19 April 1991). Accordingly where the Tribunal finds, on the evidence, that a 'disease or condition' exits it must submit the case to the CMO and it is then bound by the CMO's opinion as to the consequence of the disease or condition.

The Tribunal received written evidence and had access to the Departmental file. It also held a preliminary meeting with the Applicant.

Both the original decision-maker and the MIRO officer refused this application on the ground that the Principal's spouse failed to satisfy the prescribed health criteria.

After lodgement of the application for review with the Tribunal further medical evidence was submitted to the CMO. This evidence concerned the Principal's spouse. The Tribunal is not empowered to substitute its own decision for that of the CMO in these cases. But, a request for reconsideration of the situation by the CMO was made.

As a result of the new evidence the CMO advised the Tribunal by a letter dated 4 July 1996 as follows:

Mr Dickson failed his immigration medical assessment in July 1994. The reason given was that he has chronic obstructive airways disease.

A review of the primary decision was re affirmed in February 1996. He was considered to have a disease which would result in him becoming a significant charge on public funds.

I have read the following reports supplied by the following doctors:

1 Dr Bakani, Consultant Physician/Cardiologist, dated 19/3/1996, 18/12/1995

2 Dr Bhagat Ram, Consultant Physician, dated 7/6/1994

3. Dr Peter Bye, Clinical Associate Professor, Royal Prince Alfred Hospital, dated 9/5/1995 and 12/4/1995

5 Various other medical reports from Fiji and Australia

Mr Dickson has severe obstructive airways disease, proven by several respiratory function tests, done in Fiji and in Australia. He stopped smoking when he was 56 years old, some 14 years ago. He is compliant with his treatment and is currently functionally quite well.

Dr Bye made a comment that he could walk 1000 yards on the flat ground and can climb two flights of stairs before getting short of breath. He can still work full time and does not need oxygen therapy. Blood gas tensions are well preserved. Clinical examination is normal.

Dr Bakani noted that he has to climb three flights of stairs to get to his office which has not lifts. He has not been admitted to hospital for the last six years and is well controlled by nebuliser and oral treatment. He has been weaned off oral steroids since April 1995 without any problems. Apart from his COAD, there are not other significant medical problems.

Dr Ross Smith, assessed the cost of treatment to be around A$1,200 a year. In my opinion, this is a reasonable assessment.

Dr Mitchell, his general practitioner in Fiji confirmed that his condition is stable and has been so since he stopped smoking.

Dr Ferguson, a Consultant Physician, examined him in Fiji in March 1993 and gave the opinion that his emphysema is not progressive.

Sputum cultures have not shown M Tb. Chest X Rays done have shown hyperinflated lungs, signs of chronic obstructive airways disease but no cardiomegaly or heart failure.

Blood tests have not revealed any significant abnormalities.

In summary, at least four clinicians, including at least three specialists have indicated that his condition is static and not expected to deteriorate. His clinical condition is good and he continues to live a busy life, without hindrance by his condition. He has not shown evidence of needing hospitalisations in the past six years. He is a compliant patient and has stopped smoking. His prognosis must be considered to be good.

Based on the medical evidence provided, I have formed the opinion that he meets the prescribed health criteria, as set out in the Migration Regulations at Schedule 4, ie

he is free from any disease or condition that, during his proposed period of stay in Australia, would;

(i) require significant care or significant treatment (or both);

(ii) require care or treatment (or both) involving the use of community resources in short supply;

(iii) prevent the applicant from pursuing the applicant's intended occupation (if any) in Australia;

(iv) result in the applicant becoming a significant charge on public funds.

1 His condition has been stable for at least the last six years, despite poor lung function tests. He has not needed hospital treatment.

2 Functionally, he is very well. He can perform all the usual activities of his employment. This is supported by a well preserved arterial blood gas tensions.

3 He has been compliant with his treatment and has stopped smoking.

4 He does not have significant concomitant illnesses.

5 He does not need home oxygen in the foreseeable future.

Based on the above evidence, The Tribunal finds that the Principal's spouse satisfies the prescribed health criteria. There are other criteria to be satisfied including the health of the Principal, and the Tribunal has decided to remit this application to the Department for further processing.

The Tribunal remits this application to the Department for reconsideration with the direction that the Principal's spouse satisfies the prescribed health criteria. There are other criteria to be satisfied, including the health of the Principal, which the Tribunal has not considered.