2113437 (Migration) - [2025] ARTA 1709

2113437 (Migration) [2025] ARTA 1709 (30 May 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Multicultural Affairs
Tribunal Number: 2113437

Tribunal:General Member D. Barker
Place:Sydney
Date: 30 May 2025

Decision:The Tribunal affirms the decision not to grant the applicants Aged Parent (Residence) (Class BP) visas.

Statement made on 30 May 2025 at 3:06pm
CATCHWORDS
MIGRATION – Aged Parent (Residence) (Class BP) visa – Subclass 804 (Aged Dependent Relative) – heath criteria – medical assessment by the Medical Officer of the Commonwealth – family intention to cover medical costs – decision under review affirmed
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth), s 66
Migration Act 1958 (Cth), ss 65, 417
Migration Regulations 1994, Schedule 2 cls 804.225, 804.226, 804.321,804.322; Schedule 4; Public Interest Criteria 4005; r 2.25
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 an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of decisions made by a delegate of the Minister on 16 September 2021 to refuse to grant the applicants Aged Parent (Residence) (Class BP) visas (a Subclass 804 visa) under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 1 June 2017. The delegate refused to grant the visas on the basis that as the health criteria in Public Interest Criterion (‘PIC’) 4005 of Schedule 4 to the Migration Regulations 1994 (Cth) (the Regulations) was not met by the third named applicant, [Applicant 3], the first named visa applicant, [Applicant 1], did not satisfy cl 804.226 of Schedule 2 to the Regulations.
The Tribunal wrote to the applicants on 10 April 2025 inviting them to appear before the Tribunal on 20 May 2025. In response, [Ms A], daughter to the first and second named applicants, sibling to the third named visa applicant, and authorised recipient / authorised representative, informed the Tribunal that the applicant’s did not wish to appear before the Tribunal at hearing. [Ms A] however requested the opportunity to appear and make submissions in support of the review application. In the particular circumstances of this case, being the advanced age of the applicant and second named applicant, and the condition impacting the third named applicant, the Tribunal consented to this request. In so doing the Tribunal was mindful of the provisions in s 66 of the Administrative Review Tribunal Act 2024 (the Art Act) which deal with the representation of a party or parties in a proceeding before the Tribunal. Section 66 of the Art Act provides that a person who is required or permitted to appear before the Tribunal may, with the permission of the Tribunal, choose another person to represent the person before the Tribunal.
[Ms A] appeared before the Tribunal on 20 May 2025 by the MS teams video platform to present arguments.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. Further to this, the Tribunal has agreed, upon request from [Ms A], to refer the matter to the Minister for their consideration.
BACKGROUND
All three visa applicants are citizens of [Country 1]. [Applicant 1] [Applicant 1] and [Applicant 2] are respectively [ages] years of age. The third-named visa applicant, (hereafter referred to as [Applicant 3]) is [age] years of age and is reported to have a congenital genetic disorder, Williams syndrome. [Applicant 2] and [Applicant 3] applied for visas on the basis of being members of the family unit of the [Applicant 1]. [Applicant 1] is sponsored for the visa by [Ms A], who became an Australian citizen by grant in 2014.
The visa applicants were granted Subclass 651 eVisitor visas on 15 February 2017 and then travelled to Australia, arriving [in] April 2017. They subsequently lodged the application for the Aged Parent (Residence) (Class BP) visas on 1 June 2017.
The Department of Home Affairs (the Department) wrote to the visa applicants on 25 August 2020 indicating that they required more information in order to progress the assessment of the visa applications. The request checklist attached to this information request, amongst other things indicated that the visa applicants were required to undergo health examinations.
On 6 January 2021, the Department sent [Applicant 1] a natural justice letter inviting comment on what the letter described as unfavourable information that may lead to a decision to refuse the visa applications. This information was that the results of [Applicant 3’s] medical examination had been evaluated by a Medical Officer of the Commonwealth (MOC) and were assessed as not meeting the health requirement for the grant of a Subclass 804 visa. Included with the natural justice letter was a copy of the opinion provided by the MOC in relation to the third-named visa applicant which contained, in part, the following information.
The applicant has been assessed against Public Interest Criterion (PIC) 4005 for the period of a permanent stay in Australia.
The applicant does not satisfy sub-subparagraph PIC 4005(1)(c)(ii)(A) in Schedule 4 to the Migration Regulations.
The applicant is [an age] year old person with: - Moderate functional impairment.
Form and severity of the applicant's condition: - the applicant has moderate functional impairment due to Williams syndrome, which is a genetic disorder, and requires significant assistance with activities of daily living.
Provision of services to a hypothetical person in Australia with the same condition as the applicant and at the same severity: - a hypothetical person in Australia with the same condition as the applicant, at the same severity, would be likely to require long term support services including, but not limited to, a carer and disability support services.
This condition is likely to be Permanent.
I consider that a hypothetical person with this disease or condition, at the same severity as the applicant, would be likely to require health care or community services during the period specified above.
These services would be likely to include: - Commonwealth disability services
Provision of these health care and/or community services would be likely to result in a significant cost to the Australian community in the areas of health care and/or community services.
In preparing this opinion, I have had regard to the information available to date concerning the
applicant, including, but not limited to the report of the examination conducted by the Panel Member on 14 September 2020 with Assessment of Activities of Daily Living.
The delegate noted that a further invitation to comment letter was sent to the authorised recipient’s email address on 25 March 2021 but that no response or comment resulted from this or the earlier letter.
The delegate’s decision record notes that [Applicants 1 and 2] were assessed as having met the requirements of PIC 4005, but that unfortunately [Applicant 3] was assessed as having not met this Public Interest Criterion.
The delegate found that as [Applicant 3] did not meet PIC 4005 [Applicant 1] did not meet cl.804.226(1), which requires each member of the family unit of a primary applicant satisfies the health criteria. Accordingly, the application of all three visa applicants were refused.
Documentation provided in association with the review application include:
a)Written letters from the authorised recipient / authorised representative dated 13 April 2021 and 19 September 2021.
b)Copies of:
i.Notification of refusal of application for Aged Parent (Residence) (Class BP) visas.
ii.Delegate decision record dated 16 September 2021
c)Letter regarding [Applicant 3] prepared by [Doctor A], dated 1 September 2016
d)Letter regarding [Applicant 3] prepared by [Doctor B], consultant cardiologist, dated 29 September 2016
e)Letter regarding [Applicant 3] prepared by [Doctor C], dated 29 September 2016
f)Letter regarding [Ms A] prepared by [Doctor D], dated 27 July 2021
At hearing [Ms A] requested time following the hearing to consult with [Applicant 1] in order to clarify whether they would request a further MOC opinion be sought. The Tribunal consented to this request and on 20 May 2025 [Ms A] informed the Tribunal that a further MOC opinion with regard to [Applicant 3] was not requested.
The applicant’s contentions
In submissions prepared by [Ms A] on 19 September 2021 it is questioned why the opinion provided by the MOC focussed on a ‘hypothetical person’ rather than upon [Applicant 3’s] particular and individual circumstances.
With respect to the [Applicant 3’s] circumstances, it is contended that no financial assistance would be sought from the Australian government to meet his care and support needs, as these would be met, as they always have been, by his family.
It is contended that prior to coming to Australia and since his birth [Applicant 3] was looked after by his mother and father and that he has at no stage of his life lived in a residential setting away from his family. Since coming to Australia all three visa applicants have resided on a purpose built residence built on [Ms A’a] property in Queensland.
In the September 2021 submissions it is contended that [Applicant 3’s] condition has improved since living in Queensland, with him remaining asymptomatic, swimming 4 to 5 times a week and volunteering at a nearby aged care residence where he plays the organ to entertain residents. It is contended that whilst the genetic disorder affecting [Applicant 3] results in a degree of developmental delay such that he could not live independently, he is able to wash and dress himself and that he is quite a gifted musician.
In the September 2021 submissions [Ms A] noted the medical evidence provided on behalf of the applicant and expressed concern, given the reference to an unconnected party in the delegate decision record, that this medical evidence may not have been taken into account by the MOC when assessing [Applicant 3’s] condition and support needs.
At hearing [Ms A] referred to her previous September 2021 submissions and emphasised that [Applicant 3] has throughout his life been supported by their parents and that given the advanced age of her parents, it was now her job to look after her brother. [Ms A] emphasised that as a nurse she is well qualified to provide care and support to her brother and that in the event he outlived her, her children were also committed to the care and support of [Applicant 3]. [Ms A] emphasised that this reflected her families’ values and commitment to each other. [Ms A] emphasised that there are no close relatives remaining in [Country 1] who would be able to provide care and support to [Applicant 3] in the event he is refused a visa. [Ms A] explained that her parents are now frail and aged and would no longer able to provide for [Applicant 3’s] care and support needs in the event they were all refused visas and had to depart from Australia.
CONSIDERATION OF CLAIMS AND EVIDENCE
The delegate, in their decision record refers to the ‘one fails, all fail’ criteria. This refers to the impact of cl 804.226, which provides that a person who is a member of the family unit of the primary applicant; and who is also an applicant for a Subclass 804 visa must satisfy Public Interest Criterion including PIC 4005. In the circumstance where a member of the family unit of the primary applicant, who is also applying for a Subclass 804 visa, does not satisfy PIC 4005 the primary applicant[1] and any members of their family unit who are also applying for the Subclass 804 visa[2] do not meet a required criteria for the grant of the Subclass 804 visa.
[1] Cl 804.226
[2]Cl 802.321 and / or cl 804.322.
The issues in this review include whether [Applicant 3] meets PIC 4005 as required by the criteria for the grant of the Subclass 804 visa; and if not, the consequences which arise from his failure to meet this Public Interest Criterion.
PIC 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.
Is the applicant free from the relevant diseases or conditions (PIC 4005(1)(a), (b), (c))?
PIC 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.
PIC 4005(1)(c) requires the visa applicant to 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:
i.result in a significant cost to the Australian community in the areas of health care and community services; or,
ii.prejudice access of an Australian citizen or permanent resident to health care or community services.
iii.For specified temporary visas, certain specified health care and community service are excluded from this consideration: PIC 4005(3).
As the applicant in this case 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 have regard to 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: reg-2.25A(3).
Is a MOC opinion required?
Under PIC 4005(1)(aa), a visa applicant may be required to undertake certain medical assessments if they are in a class of persons specified by the instrument. The instrument relevant to the date on which the visa applications were lodged is IMMI 15/119. Under this instrument citizens of [Country 1] fall within the class of persons specified by the instrument. The visa applicants, including [Applicant 3], are citizens of [Country 1].
On the evidence before the Tribunal, a MOC opinion is required.
As noted above, the Tribunal must take the MOC opinion as correct but must first be satisfied the MOC has applied the correct test in forming the opinion: Robinson v MIMIA (2005) 148 FCR 182 [Robinson] and Ramlu v MIMIA [2005] FMCA 1735 [Ramlu]. That is, the opinion must identify the medical condition to which the public interest criterion has been applied, and the form or level of the condition suffered by the applicant, and the MOC must have applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition.
On 18 September 2020, a MOC concluded that the third-named applicant did not satisfy PIC4005(1)(c)(ii)(A).
The Tribunal has had regard to the Federal Court decisions in Robinson and Ramlu and is satisfied that the Officer’s assessment dated 18 September 2020 is valid, in that it identifies the medical condition to which the Public Interest Criterion has been applied (Williams syndrome); specifies the form or level of the condition suffered by the applicant (moderate functional impairment due to Williams syndrome) and has applied the statutory criteria by reference to a hypothetical person who suffers from the form or level of the condition. The Tribunal is satisfied that the Officer has applied the correct test and is bound to accept the medical opinion to be correct.
The Tribunal is bound to accept the final assessment of the MOC to be correct for the purposes of deciding whether an applicant satisfies the relevant health criterion. Accordingly, based on the opinion of the MOC, the Tribunal finds that [Applicant 3] does not satisfy public interest criterion 4005.
The consequences of [Applicant 3] not meeting PIC 4005
Clause 804.225 requires an applicant for a Subclass 804 visa satisfies Public Interest Criterion, including PIC 4005. As [Applicant 3] does not meet PIC 4005, it follows that he does not satisfy either cl 804.225 or cl. 804.322[3].
[3] Cl 804.322 requires that a member of a family unit of a primary applicant for a Subclass 804 visa satisfies PIC 4005.
In relation to [Applicant 1], the primary applicant for the visa, as [Applicant 3] does not satisfy cl 804.225 it follows that [Applicant 1] does not meet cl. 804.226.
As to [Applicant 2], the Tribunal finds that she does not meet cl 804.321. This is because to meet this requirement [Applicant 2] would need to be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 804 visa. As the Tribunal has determined [Applicant 1] fails to meet a threshold requirement for the grant of the visa, it follows that [Applicant 2] cannot satisfy cl 804.321.
As the applicants have not satisfied threshold requirements for the grant of Subclass 804 Aged Parent (Residence) (Class BP) visas, the Tribunal must affirm the decision under review.
Referral of the matter to the Minister for their consideration
The applicants’ authorised representative has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s 417 of the Act, which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicants, if the Minister thinks that it is in the public interest to do so.
Circumstances relevant to the exercise of the discretion are respectfully brought to the attention of the Minister:
·The primary applicant and his spouse, [Applicants 1 and 2] are respectively [ages] years of age.
·The Tribunal is satisfied that because their son, [Applicant 3] does not meet the health requirements all three visa applicants are unable to meet the criteria for the grant of the visas.
·The visa applicant’s only close relative, [Ms A], is a citizen of Australia and registered nurse. They have no close relatives in their home country, [Country 1].
·[Ms A] encouraged the visa applicant to come to Australia when her parents reached an age where they required assistance caring for themselves and [Applicant 3].
·[Applicant 3] has throughout his life resided with his parents. [Ms A] reports that there would be no familial or similar supports for either [Applicant 3] or her parents in the event they were required to return to [Country 1]. [Ms A] contends that the consequences for her parents in brother of such a circumstance would be catastrophic.
·The Tribunal considers that this case raises strong compassionate circumstances such that a failure to recognise them would result in harm and continuing hardship to both the visa applicants and Australian citizens, namely [Ms A] and members of her immediate family.
The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in departmental policy ‘Minister’s guidelines on ministerial powers (s351, s417 and s501J)’ and will refer the matter to the Department.
DECISION
The Tribunal affirms the decision not to grant the applicants Aged Parent (Residence) (Class BP) visas.
Date(s) of hearing:  20 May 2025
Representative for the Applicant:           [Name]
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)unless the applicant is a minor born in Australia and is ordinarily resident in Australia, 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.