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…

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 2113437 (Migration)

Details

AGLC: 2113437 (Migration) [2025] ARTA 1709
Case: [2025] ARTA 1709
Decision Date: 30 May 2025

CaseChat Overview and Summary

The case under review involved three applicants from [Country 1] who were seeking Aged Parent (Residence) (Class BP) visas, specifically the Subclass 804 (Aged Dependent Relative) visa. The primary applicant, [Applicant 1], and two other applicants, [Applicant 2] and [Applicant 3], had their visas assessed by the Department of Home Affairs. [Applicant 3], who has Williams syndrome, was found by a Medical Officer of the Commonwealth (MOC) to have moderate functional impairment, which led to the assessment that [Applicant 3] did not meet the health requirement for visa grant under Public Interest Criterion (PIC) 4005.

The primary legal issues the Tribunal had to address were whether [Applicant 3] met the health requirements under PIC 4005, and if not, what the implications were for the visa applications of all three applicants under the 'one fails, all fail' rule. The Tribunal considered the medical assessment by the MOC and the implications of the 'one fails, all fail' criteria, which state that if one member of a family unit applying for a Subclass 804 visa fails to meet PIC 4005, then the entire family unit's visa applications are denied.

The Tribunal affirmed the decision not to grant the visas, noting that [Applicant 3] did not meet the health requirements under PIC 4005, and thus, all three applicants' visas were refused. The Tribunal also took into account the evidence provided by [Ms A], the sponsor and Australian citizen, regarding the family's commitment to care for [Applicant 3]. However, the Tribunal found that this evidence did not sufficiently address the requirements of PIC 4005. The Tribunal decided to refer the matter to the Minister for their consideration.

Orders

Orders of the court

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Background

Background to the litigation

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 servicesProvision 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 theapplicant, 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.

Evidence

Evidence Before The Court

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).

Decision

Reasons for decision

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 2025Representative for the Applicant: [Name]ATTACHMENTMigration 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)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.

Ratio Decidendi

Legal Principle Established

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