Applicant: Mariam Boulad Jarrah Jarkis IRT Reference: N95/02102 #number 7801 [1996] IRTA 7801 (9 September 1996)

The application had been refused because Mrs Jarrah Jarkis was unable to meet the requirements of the Regulations in relation to the health criteria.

As a result of the coming into force of the Migration Reform Act 1992 on 1 September 1994 Australian migration law underwent significant change. In accordance with regulation 23 of the Migration Reform (Transitional Provisions) Regulations, the application in this case is taken to be an application for a transitional (permanent) visa under the new law. For most purposes this will resemble the entry permit that would have been granted under the law in force before 1 September 1994. However, the application is still to be decided according to the criteria that applied to the entry permit for which application was originally made. The Regulations which are applicable in this case are therefore the Migration (1993) Regulations.

The prescribed criteria that must be satisfied before a Class 806 (Family and Other Close Ties (After Entry )) Entry Permit can be granted are set out in the 1993 Regulations. An applicant is entitled to the Entry Permit only if he or she satisfies each of the various prescribed criteria, some of which must be satisfied at the time of application and others at the time of decision. Failure to satisfy any one of the criteria results in a failure of the application.

Mrs Jarrah Jarkis has lodged her application on the basis that she is an 'aged dependent relative' of her Australian citizen and nominator, Mr Chaoukat Dib, her son.

Included in the requirements is satisfaction of certain public interest criteria including the 'health test'. Satisfaction of this test is largely a matter for the Commonwealth Medical Officer.

The Tribunal had before it the Departmental file in relation to Mrs Jarrah Jarkis. The Tribunal held a preliminary meeting and a hearing in this matter which were attended by Mrs Dib who is the Applicant's daughter-in-law. Mrs Dib has largely had the responsibility for this application and for Mrs Jarrah Jarkis' care since her arrival in Australia.

Mrs Jarrah Jarkis is a seventy-five year old citizen of Lebanon. She is a widow and has nine children, three of whom live in Lebanon and six of whom live in Australia. She arrived in Australia as a visitor on 10 September 1992. At this time she was physically well and stayed with her son and his family in Sydney. However, in February 1994, Mrs Jarkis' suffered a serious stroke. Her condition has deteriorated since this time. She was admitted first to Lidcombe Hospital and then to the Hume Nursing Home at Greenacre. Mrs Jarkis' care has been a significant emotional and financial burden to the family.

The Commonwealth Medical Officer provided a report on the Applicant on 24 July 1995 which provides as follows:

Thank you for your letter of July 14, 1995 regarding the abovenamed applicant.

Mrs Jarrah Jarkis has not bee examined by a Commonwealth Medical Officer. While on holiday in Australia, when on February 19, 1994, she developed right-sided weakness with difficulty in speaking and was admitted to Bankstown Hospital. She had a history of non-insulin-dependent diabetes. A computed tomographic (CT) scan demonstrated two cerebellar pontine infarcts. Her right-sided weakness increased and a further CT scan on February 22, 1994 showed evolving infarcts.

Her condition improved and she was transferred to a rehabilitation ward on March 11, 1994. On March 20, 1994, her condition worsened again, she became unable to speak and developed left-sided weakness. A CT scan showed further infarcts.

Mrs Jarrah Jarkis has no prospect of recovery. She is totally dependent on others for care. She requires two-or-three persons to move her - a lifting device is used - and needs two-hourly pressure care. She is unable to articulate and cannot be understood even by her family. She can not swallow and has to be fed by a gastric tube. She has suffered chest infections as a result of the aspiration of food. She is incontinent of urine and faces. She also has a cardiac arrhythmia and congestive cardiac failure, with segmental wall abnormalities and a low ejection fraction.

Mrs Jarrah Jarkis is receiving and will continue to require 24 hour nursing care. The most suitable environment for her is a nursing home. Nursing home placements are regarded as a community resource in short supply.

Under the circumstances, I only can reaffirm the findings of the original Medical Officer of the Commonwealth that Mrs Jarrah Jarkis does not meet the prescribed health criteria for the duration of stay and/or activity indicated on the medical examination form 26 for the following reasons, as set out in the Migration (1994) Regulations at Schedule 4, Clause 4005, that is:

[she] has a disease or condition, which, during the 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;

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

At the hearing of this matter on 5 September 1996, Mrs Dib told the Tribunal that Mrs Jarkis' condition had continued to deteriorate. Mrs Paula Sesta, Social Worker for the Bankstown Aged Care Assessment Team of the Bankstown/Lidcombe Community Health Service, submitted a report to the Tribunal dated September 1996 which described Mrs Jarkis' current medical condition as follows:

Mrs Jarkis had her first stroke on 19th February , 1994 and has had several strokes since . She is completely paralysed on the left side . Mrs Jarkis as high physical needs as a result of these strokes. She requires total bed care and cannot walk. She cannot speak or swallow. She is fed through a gastrostomy tube in her stomach. Due to labouring respiration she often requires oxygen to breath.

Mrs Jarkis has also been suffering with bouts of asthma, urinary tract infections , arrhythmia and skin problems.

Her situation is now even more desperate because she is unable to pay nursing home fees and is likely to be shortly required to leave the nursing home where she is currently being cared for.

There was no dispute by the primary and review decision-makers that Mrs Jarkis meets the substantive requirements for the grant of the entry permit on the basis that she is an 'aged dependent relative' of an Australian citizen. However Mrs Jarkis has been unable to meet health requirements.

Despite Mrs Jarkis' tragic circumstances, the Tribunal cannot go behind the opinion of the Commonwealth Medical Officer. The Tribunal has no power to grant Mrs Jarkis a visa on compassionate grounds. The Tribunal therefore must find that Mrs Jarkis does not meet the requirements of the Regulations.