1903511 (Migration)

[2019] AATA 3328

1903511 (Migration) [2019] AATA 3328 (25 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1903511

MEMBER:David Barker

DATE:25 July 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for Contributory Parent (Migrant) (Class CA) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 143 (Contributory Parent) visa:

·PIC 4005 for the purposes of cl.143.225 of Schedule 2 to the Regulations.

The Tribunal remits the application for Contributory Parent (Migrant) (Class CA) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 143 (Contributory Parent) visa:

·cl.143.225B of Schedule 2 to the Regulations.

Statement made on 25 July 2019 at 2:16pm

CATCHWORDS

MIGRATION – Contributory Parent (Migrant) (Class CA) – Subclass 143 (Contributory Parent) – health criteria – free from disease or condition that is a threat to the Australian community – further medical evidence available – updated medical opinion sought – Review Medical Officer of the Commonwealth – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 143.225; Schedule 4, Public Interest Criterion 4005

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

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 24 January 2019 to refuse to grant the visa applicants Contributory Parent (Migrant) (Class CA) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 23 June 2015. The delegate refused to grant the visa on the basis that the second named 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.

3. The review applicant appeared before the Tribunal on 3 July 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

4. The review applicant was represented in relation to the review by her registered migration agent.

5. For the following reasons, the Tribunal has concluded that the [matter should be remitted for reconsideration consideration of Claims and evidence

6. The issue in this review is whether the visa applicant meets Public Interest Criterion (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 applicant, in certain circumstances, to undergo medical assessment, and to be free of certain diseases or conditions that may impact on the community. The second named visa applicant in this case suffers from asymptomatic chronic viral hepatitis B. On the basis of opinions provided by a Medical Officer of the Commonwealth [in] June 2018 and [in] January 2019 that the second named visa applicant did not satisfy PIC 4005(1)(c)(ii)(A) In Schedule 4 of the Regulations, the delegate determined that cl.143.225 was not met and on that basis refused the visa applications.

   Is the applicant free from the relevant diseases or conditions (PIC 4005(1)(a), (b), (c))?

7. 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.

8. 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. For specified temporary visas, certain specified health care and community service are excluded from this consideration: PIC 4005(3).

9. As the applicant in this case has applied for a permanent visa, the exclusion provision in PIC 4005(3) does not apply.

10. 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 Medical Officer of the Commonwealth 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 Medical Officer of the Commonwealth is required, the Tribunal must take it be correct: r.2.25A(3).

11. On the evidence before the Tribunal, a Medical Officer of the Commonwealth opinion is required.

12. In this case the initial Medical Officer of the Commonwealth opinion provided [in] June  2018 was that the second named visa applicant did not satisfy PIC 4005(1)(c)(ii)(A) In Schedule 4 of the Regulations.  Further opinions were sought from a Review Medical Officer of the Commonwealth on three subsequent occasions on the basis of further medical evidence becoming available.  After reviewing the entirety of the currently available medical and radiological reports, the Review Medical Officer of the Commonwealth advised the Department, by way of an email and report [in] July 2019 that the second named visa applicant has been assessed against PIC 4005 and meets the health requirements for a permanent stay in Australia. The Tribunal is satisfied with the validity of the opinions of the Medical Officer and Review Medical Officer of the Commonwealth, which were prepared on the basis of the medical evince available to them. 

13. The Tribunal is bound to accept the most recent assessment of the Medical Officer of the Commonwealth to be correct for the purposes of deciding whether the applicant satisfies the health criterion.

14. Accordingly, based on the opinion of the Review Medical Officer of the Commonwealth, dated [in] July 2019, the second named visa applicant satisfies PIC 4005 for the purposes of cl.143.225 of Schedule 2.

15. As the second named visa applicant has satisfied PIC Criteria 4005, the first named visa applicant also satisfies clause 143.225B of the criteria as set out in Schedule 2 of the Regulations.

16. 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

17. The Tribunal remits the application for Contributory Parent (Migrant) (Class CA) visas for reconsideration, with the direction that the second  named visa applicant meets the following criteria for a Subclass 143 (Contributory Parent) visa:

    ·PIC 4005 for the purposes of cl.143.225 of Schedule 2 to the Regulations.

18. The Tribunal remits the application for Contributory Parent (Migrant) (Class CA) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 143 (Contributory Parent) visa:

    ·cl.143.225B of Schedule 2 to the Regulations.

    David Barker
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    Schedule 4

    4005(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.