1412937 (Migration)

[2015] AATA 3707

1412937 (Migration) [2015] AATA 3707 (17 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chin Yok TAN

CASE NUMBER:  1412937

DIBP REFERENCE(S):  CLF2013/249136

MEMBER:Alan Duri

DATE:17 November 2015

PLACE OF DECISION:  Sydney

DECISION:The tribunal remits the application for a Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 835 (Remaining Relative) visa:

·PIC 4005(1)(a), (b) and (c) for the purposes of cl.835.223 of Schedule 2 to the Regulations.

Statement made on 17 November 2015 at 2:51pm

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 8 July 2014 to refuse to grant Mr Tan an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Tan applied for the visa on 10 October 2013.

3. Relevant to this application on 29 April 2014 a Medical Officer of the Commonwealth found that Mr Tan does not meet the health criteria in public interest 4005.

4. The delegate refused to grant the visa on the basis that Mr Tan did not satisfy cl.835.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the health criteria in public interest criterion 4005 of Schedule 4 to the Regulations was not met.

   Hearing

5. Mr Tan appeared by videoconference from Melbourne before the tribunal on 14 September 2015 to give evidence and present arguments. 

6. Mr Tan was represented by his registered migration agent Mr Nadarajah.

7. Before the hearing the tribunal received a submission and other material arguing that Mr Tan’s ongoing medical treatment would not result in a significant cost to the Australian community.

8. During the hearing the tribunal noted that it is bound by the Medical Officer of the Commonwealth’s opinion.  Mr Tan indicated that he would be seeking a further medical opinion.

9. On 6 November 2015 the tribunal received a Medical Officer of the Commonwealth opinion dated 4 November 2015 that Mr Tan meets the health requirement for permanent stay in Australia.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The question before the tribunal is whether Mr Tan meets public interest criterion 4005 as required by the criteria for the grant of the visa. 

11. 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.

12. 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.

13. As noted above a Medical Officer of the Commonwealth provided an opinion on 4 November 2015 that Mr Tan meets the health requirement for permanent stay in Australia.

14. The tribunal is bound to accept the assessment of the Medical Officer of the Commonwealth to be correct for the purposes of deciding whether Mr Tan satisfies the health criterion. Accordingly, based on the opinion of the Medical Officer of the Commonwealth, the tribunal finds that Mr Tan satisfies public interest criterion 4005(1)(a), (b) and (c).

15. Given the findings above, the appropriate course is for the tribunal to remit the matter to the Minister for reconsideration of the remaining criteria for the visa.

    DECISION

16. The tribunal remits the application for a Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 835 (Remaining Relative) visa:

    ·PIC 4005(1)(a), (b) and (c) for the purposes of cl.835.223 of Schedule 2 to the Regulations.

    Alan Duri
    Member