1826056 (Migration) - [2022] AATA 4234

1826056 (Migration) [2022] AATA 4234 (12 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Aristotle Paipetis (MARN: 0006846)
CASE NUMBER:  1826056
MEMBER:Stephen Conwell
DATE:12 October 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:
·PIC 4007(2)(b) for the purposes of cl.802.223 of Schedule 2 to the Regulations.

Statement made on 12 October 2022 at 7:27pm
CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – health criteria –condition likely to require health care or community services – autism spectrum disorder with moderate developmental delay – opinion of medical officer of commonwealth taken as correct – discretion to waive criterion – compassionate or compelling circumstances – family links and parents’ employment in sectors with skills shortages and financial means to mitigate health costs – applicant’s progress under parents’ care – family’s intention to remain in Australia permanently – decision made without hearing necessary – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)
Migration Regulations 1994 (Cth), r 2.25A(3), Schedule 2, cl 802.223, Schedule 4, criterion 4007(1)(c)(ii)(A), (2)(b)
CASES
Bui v MIMA (1999) 85 FCR 134
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.
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 Home Affairs on 24 August 2018 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 29 March 2017. At the time of application, the Child (Residence) (Class BT) visa contained Subclass 802 (Child) and Subclass 837 (Orphan Relative). In this case, claims have only been made in respect of Subclass 802 (Child).
The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). As there is no letter of support from a State or Territory government welfare authority (cl 802.216, 802.226A), the criteria to be met in this case include cl. 802.223 which requires that certain Public Interest Criteria be satisfied.
The delegate refused to grant the visa as the applicant did not satisfy cl.802.223 of Schedule 2 to the Regulations because the health criteria in Public Interest Criterion (‘PIC’) 4007 of Schedule 4 to the Regulations was not met.
The applicant was represented in relation to the review. The applicant provided a copy of the delegate’s decision to the Tribunal for the purposes of the review.
In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find…

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 1826056 (Migration)

Details

AGLC: 1826056 (Migration) [2022] AATA 4234
Case: [2022] AATA 4234
Decision Date: 12 October 2022

CaseChat Overview and Summary

This matter concerned an application for a Child (Residence) (Class BT) visa, Subclass 802. The applicant, a child diagnosed with autism spectrum disorder and moderate developmental delay, was found not to meet Public Interest Criterion (PIC) 4007, which requires applicants to be free from conditions likely to require significant health or community services, or prejudice access to such services for Australian citizens or permanent residents. The Tribunal was required to consider whether the applicant met this criterion and whether there were compassionate or compelling circumstances to waive it.

The Tribunal was tasked with determining if the applicant satisfied PIC 4007, specifically the requirement to be free from a disease or condition that would likely necessitate health or community services, potentially incurring significant costs to the Australian community or prejudicing access for others. The Tribunal was bound by regulation 2.25A to accept the opinion of a Medical Officer of the Commonwealth (MOC) as correct when such an opinion was required. The central issue was whether the applicant's condition met the threshold for PIC 4007 and, if so, whether the waiver provision for compassionate or compelling circumstances applied.

The Tribunal acknowledged that the MOC's opinion, which indicated the applicant's condition would likely require health and community services, was to be taken as correct. However, the Tribunal found that it had not adequately considered the waiver provision under PIC 4007(2)(b) in light of the compassionate and compelling circumstances presented by the applicant's family. These circumstances included strong family links, the parents' employment in skills shortage sectors, their financial capacity to mitigate health costs, the applicant's progress under their care, and the family's intention to remain in Australia permanently. The Tribunal concluded that the decision had been made without a necessary hearing and that the matter should be remitted for reconsideration.

Consequently, the Tribunal remitted the application for a Child (Residence) (Class BT) visa for reconsideration by the Minister, with a direction that the applicant meets PIC 4007(2)(b) for the purposes of clause 802.223 of Schedule 2 to the Migration Regulations 1994.

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 matter should be remitted for reconsideration.Consideration of claims and evidence The issue in this review is whether the visa applicant meets Public Interest Criterion (PIC) 4007 as required by the criteria for the grant of the visa. Public Interest Criterion 4007, as it applies to this case, is extracted in the attachment to this decision. It requires the applicant, in certain circumstances, to undergo medical assessment, and to be free of certain diseases or conditions that may impact on the community. This last requirement may be waived in certain circumstances. The applicant in this case is a child born in [Year] who is diagnosed with a mild functional impairment, specifically a diagnosis of autism spectrum disorder with speech and language delay. The Tribunal has regard to all the documents contained in the Department and Tribunal files including but not limited to, the decision record, the Form 884: Opinion of A Review Medical Officer of The Commonwealth (RMOC) dated 9 May 2022, financial information, medical records, statutory declarations by the applicant’s parents and a written submission by the representative dated 14 September 2022.Is the applicant free from the relevant diseases or conditions (PIC 4007(1)(a), (b), (c))? Clauses 4007(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. Clause 4007(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. For specified temporary visas, certain specified health care and community services are excluded from this consideration: PIC 4007(1B). The requirement may also be waived in certain circumstances. As the applicant in this case has applied for a permanent visa, the exemption provision in PIC 4007(1B) does not apply. In determining whether a person meets PIC 4007(1)(a), (b) or (c), r.2.25A requires the Tribunal to seek the opinion of a Medical Officer of the Commonwealth (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

Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for the visa.decision The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 (Child) visa:· PIC 4007(2)(b) for the purposes of cl.802.223 of Schedule 2 to the RegulationsStephen ConwellMemberATTACHMENT – RELEVANT LAWMigration Regulations 19941.03 Definitions…dependent child, of a person, means the child or step-child of the person (other than a child or step-child who is engaged to be married or has a spouse or de facto partner), being a child or step-child who:(a)has not turned 18; or(b)has turned 18 and:(i) is dependent on that person; or(ii) is incapacitated for work due to the total or partial loss of the child’s or step-child’s bodily or mental functions.…step-child, in relation to a parent, means:(a)a person who is not the child of the parent but who is the child of the parent’s current spouse or de facto partner; or(b)a person who is not the child of the parent but:(i) who is the child of the parent’s former spouse or former de facto partner; and(ii) who has not turned 18; and(iii) in relation to whom the parent has:(A)a parenting order in force under the Family Law Act 1975 under which the parent is the person with whom a child is to live, or who is to be responsible for the child's long-term or day-to-day care, welfare and development; or(B)guardianship or custody, whether jointly or otherwise, under a Commonwealth, State or Territory law or a law in force in a foreign country.1.05A Dependent(1)Subject to subregulation (2), a person (the first person) is dependent on another person if:(a)at the time when it is necessary to establish whether the first person is dependent on the other person:(i) the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and(ii) the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or(b)the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.…

Ratio Decidendi

Legal Principle Established

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