1820734 (Migration) - [2019] AATA 4119

1820734 (Migration) [2019] AATA 4119 (11 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1820734
MEMBER:Justine Clarke
DATE:11 July 2019
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Contributory Parent (Migrant) (Class CA) visa.
Statement made on 11 July 2019 at 3:46pm
CATCHWORDS
MIGRATION – Contributory Parent (Migrant) (Class CA) – Subclass 143 (Contributory Parent) – health criteria – medical opinion – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), Schedule cl 143.225, Schedule 4 Public Interest Criterion 9PIC) 4005, r 2.25A(3)
CASES

JP1 & Ors v MIAC [2008] FMCA 970
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.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the visa applicant a Contributory Parent (Migrant) (Class CA) visa under s.65 of the Migration Act 1958 (the Act).
On 4 December 2014, the visa applicant, [Applicant], applied for the visa.
On 9 July 2018, the delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.143.225 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4005 of Schedule 4 to the Regulations was not met. The primary decision contains an extract of cl.143.225.
On 17 July 2018, the review applicant, [Review applicant], acting on behalf of her son [Master A] who is a minor, applied to the Tribunal for review of the primary decision. The review applicant was represented in relation to this review by a registered migration agent.
On 16 January 2019, the Tribunal wrote to the review applicant, by way of the representative, and invited her to obtain a further opinion from a Medical Officer of the Commonwealth (MOC) because the earlier opinion was no longer current.
Subsequently, the representative responded by providing the relevant paperwork requesting a further opinion be obtained and also provided further evidence.
On 14 March 2019, a MOC made an adverse opinion. Before the Tribunal had an opportunity to write to the review applicant about the opinion, pursuant to s.359A of the Act, the representative wrote to the Tribunal with further medical evidence.
Accordingly, on 8 May 2019, the Tribunal wrote to the review applicant to enquire whether she wanted the most recent medical evidence to be considered by a MOC. If so, the Tribunal invited the review applicant to seek another opinion.
Subsequently, the review applicant requested a further opinion.
On 27 May 2019, a MOC made an opinion. This is the opinion that the Tribunal has considered in this review.
On 30 May 2019, the Tribunal sent a letter to the review applicant, providing her…

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 1820734 (Migration)

Details

AGLC: 1820734 (Migration) [2019] AATA 4119
Case: [2019] AATA 4119
Decision Date: 11 July 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision concerning a Contributory Parent (Migrant) (Class CA) visa, subclass 143. The applicant sought to challenge the delegate's finding that they did not meet the health criteria for the visa.

The central legal issue before the Tribunal was whether the visa applicant satisfied Public Interest Criterion (PIC) 4005, specifically sub-subparagraph (1)(c)(ii)(A), which requires that the provision of health care or community services would not be likely to result in a significant cost to the Australian community. The Tribunal also considered whether the applicant was free from tuberculosis or any disease or condition that posed a threat to public health or a danger to the Australian community, as stipulated in PIC 4005(1)(a) and (b).

The Tribunal reasoned that PIC 4005, as it applied to a permanent visa application, required the applicant to be free from diseases or conditions that would likely necessitate health care or community services, and that such provision would result in significant cost to the Australian community. The Tribunal noted that for permanent visa applications, the exclusion provisions for certain health care and community services under PIC 4005(3) did not apply. Furthermore, the Tribunal was required to treat the opinion of a Medical Officer of the Commonwealth (MOC) as correct under regulation 2.25A, where such an opinion was sought. As the applicant had not satisfied the requirements of PIC 4005, the Tribunal affirmed the delegate's decision.

The Tribunal affirmed the decision not to grant the visa applicant a Contributory Parent (Migrant) (Class CA) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this review is whether the visa applicant meets PIC 4005 as required by the criteria for the grant of the visa. Public Interest Criterion 4005, as it applies to this case, is extracted in the attachment to this decision. It requires the visa applicant, in certain circumstances, to undergo medical assessment, and to be free of certain diseases or conditions that may impact on the community. In this case, the delegate found that the visa applicant did not meet the health requirement. Although not specified with precision in the primary decision, the delegate found that the visa applicant did not meet PIC 4005(1)(c)(ii)(A), which relevantly provides:4005 (1) The applicant:… (c) is free from a disease or condition in relation to which:…(ii) the provision of the health care or community services would be likely to:(A) result in a significant cost to the Australian community in the areas of health care and community services; … That is, PIC 4005 requires the visa applicant, in certain circumstances, to undergo medical assessment, and to be free of certain diseases or conditions that may impact on the community. In assessing the issues, the Tribunal has had regard to all documents on the Department’s and the Tribunal’s files and the oral evidence given at the hearing.Is the applicant free from the relevant diseases or conditions (PIC 4005(1)(a), (b), (c))? Public interest criterion 4005(1)(a) and (b) require the visa 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. Public interest criterion 4005(1)(c) requires the visa 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. For specified temporary visas, certain specified health care and community service are excluded from this consideration: PIC 4005(3). In this case, as the visa applicant has applied for a permanent visa, the exclusion provision in PIC 4005(3) does not apply. In determining whether a person meets PIC 4005(1)(a), (b) or (c), r.2.25A requires the Tribunal to seek the opinion of a 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 be correct: r.2.25A(3).Is a MOC opinion required?

Decision

Reasons for decision

As the visa applicant has not satisfied the requirements of PIC 4005, the Tribunal must affirm the decision under review.DECISION The Tribunal affirms the decision not to grant the visa applicant a Contributory Parent (Migrant) (Class CA) visa.Justine ClarkeMemberATTACHMENTMigration Regulations 1994Schedule 44005(1) The applicant:(aa)if the applicant is in a class of persons specified by the Minister in an instrument in writing for this paragraph:(i)must undertake any medical assessment specified in the instrument; and(ii)must be assessed by the person specified in the instrument;unless a Medical Officer of the Commonwealth decides otherwise; and(ab)must comply with any request by a Medical Officer of the Commonwealth to undertake a medical assessment; and(a)is free from tuberculosis; and(b)is 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; and(c)is free from a disease or condition in relation to which:(i)a person who has it would be likely to:(A)require health care or community services; or(B)meet the medical criteria for the provision of a community service;during the period described in subclause (2); and(ii)the provision of the health care or community services would be likely to:(A)result in a significant cost to the Australian community in the areas of health care and community services; or(B)prejudice the access of an Australian citizen or permanent resident to health care or community services;regardless of whether the health care or community services will actually be used in connection with the applicant; and(d)if the applicant is a person from whom a Medical Officer of the Commonwealth 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 assessment — has provided the undertaking.(2)For subparagraph (1) (c) (i), the period is:(a)for an application for a permanent visa — the period commencing when the application is made; or(b)for an application for a temporary visa:(i)the period for which the Minister intends to grant the visa; or(ii)if the visa is of a subclass specified by the Minister in an instrument in writing for this subparagraph — the period commencing when the application is made.(3)If:(a)the applicant applies for a temporary visa; and(b)the subclass being applied for is not specified by the Minister in an instrument in writing made for subparagraph (2) (b) (ii);the reference in sub-subparagraph (1) (c) (ii) (A) to health care and community services does not include the health care and community services specified by the Minister in an instrument in writing made for this subclause.

Ratio Decidendi

Legal Principle Established

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