1620618 (Migration) - [2018] AATA 4084

1620618 (Migration) [2018] AATA 4084 (10 July 2018)

DECISION RECORD

DIVISION: Migration & Refugee Division

CASE NUMBER: 1620618

MEMBER: K. Chapman

DATE AND TIME OF

ORAL DECISION AND REASONS: 10 July 2018 at 5:01 pm (QLD time)

DATE OF WRITTEN RECORD: 31 July 2018

PLACE OF DECISION: Brisbane

DECISION:The Tribunal affirms the decision not to grant the visa applicants Parent (Migrant) (Class AX) visas

CATCHWORDS
MIGRATION – Parent (Migrant) (Class AX) visa – Subclass 103 (Parent) – Health criteria – Chronic medical condition – costings by MOC – market data of costings – life expectancy of applicant – second MOC opinion correct – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), r 2.25A, Schedule 2 cl 103.224, Schedule 4 PIC4005

CASES
Ramlu v MIMIA [2005] FMCA 1735
Robinson v MIMIA [2005] 148 FCR 182

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

APPLICATION FOR REVIEW

This is an application for review of decisions made by a delegate of the Minister for Immigration on 24 November 2016 to refuse to grant the visa applicants Parent (Migrant) (Class AX) Subclass 103 visas under the Migration Act 1958 (‘the Act’).

At the hearing on 10 July 2018 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

STATEMENT OF DECISION AND REASONS

This is an application for review of a decision made by a delegate of the Minister for Immigration on 24 November 2016 to refuse to grant the visa applicants Parent (Migrant) (Class AX) visas under s.65 of the Migration Act 1958 (‘the Act’).

The visa applicants are [names]. They applied for the visas on 28 February 2008. They are the parents of the review [applicant]. The delegate refused to grant the visas on the basis that the first-named visa applicant, that is [name] who will now be referred to as the visa applicant, did not satisfy clause 103.224 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. Public Interest Criteria 4005 is also known as PIC 4005.

On 5 December 2016, the review applicant applied to the Tribunal for review of the visa refusal decision, providing a copy of that decision with his application. On 20 November 2017, the Tribunal wrote to the review applicant according to section 359A of the Act, inviting him to comment on or respond to the opinion of the Medical Officer of the Commonwealth, dated 17 November 2016, that the visa applicant, [did] not meet the requirements of PIC 4005(1)(c)(ii)(A). The correspondence of 20 November 2017 also offered the review applicant the opportunity to obtain a fresh Medical Officer of the Commonwealth opinion.

On 30 November 2017, the Tribunal received a submission challenging…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1620618 (Migration)

Details

AGLC: 1620618 (Migration) [2018] AATA 4084
Case: [2018] AATA 4084
Decision Date: 10 July 2018

CaseChat Overview and Summary

The applicant sought judicial review of a decision by the Minister to refuse to grant a Parent (Migrant) (Class AX) visa (subclass 103). The refusal was based on the applicant failing to meet the health criteria, specifically concerning the estimated cost of a chronic medical condition to the Australian community. The Administrative Appeals Tribunal had affirmed the Minister's decision.

The primary legal issue before the court was whether the Tribunal erred in finding that the costings provided by the Medical Officer of the Commonwealth (MOC) regarding the applicant's chronic medical condition were reasonable and properly took into account the applicant's life expectancy. The applicant contended that the MOC's costings were speculative and did not adequately consider the possibility of the applicant's life expectancy being shorter than assumed, which would reduce the overall cost.

The court considered the evidence, including the MOC's initial assessment and a subsequent second opinion. It was found that the second MOC opinion, which provided updated costings based on a revised life expectancy, was correct and that the Tribunal had been entitled to rely on this updated assessment. The court affirmed that the MOC's role is to provide an opinion on the likely costs, and that the Tribunal's task was to determine if that opinion was reasonable in the circumstances. The Tribunal's finding that the costings were reasonable and met the legislative requirements was upheld.

The application for judicial review was dismissed.

Orders