2400661 (Migration)

[2024] AATA 2814

2400661 (Migration) [2024] AATA 2814 (11 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Paul Hense

CASE NUMBER:  2400661

MEMBER:Frances Simmons

DATE:11 July 2024

PLACE OF DECISION:  Sydney

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

Statement made on 11 July 2024 at 5:51pm

CATCHWORDS

MIGRATION – Contributory Parent (Migrant) (Class CA) visa – Subclass 143 (Contributory Parent) – health requirement – medical assessment – decision under review affirmed         

LEGISLATION

Migration Act 1958, ss 65, 351
Migration Regulations 1994, Schedule 2 cls 143.225; Schedule 4; Public Interest Criteria 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 a decision made by a delegate of the Minister for Home Affairs on 10 January 2024 to refuse to grant the visa applicant a Contributory Parent (Migrant) (Class CA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. On 31 March 2016, [the visa applicant], applied for the visa. The application was made on the basis of her parental relationship with the [sponsor]. The delegate refused to grant the visa on the basis that the visa applicant had not undertaken the required medical assessment and therefore did not meet the health criteria in Public Interest Criterion (‘PIC’) 4005 of Schedule 4 to the Migration Regulations 1994 (the Regulations).

3. On 17 January 2024, [the review applicant], applied to the Tribunal for review of the delegate’s decision.

4. On 3 July 2024, the Tribunal wrote to the applicants advising that it had considered all the material before it but was unable to make a favourable decision on that information alone. The applicants were invited to appear before the Tribunal at a hearing on 5 August 2024 to give evidence and present arguments. On 4 July 2024, the review applicant declined the offer of the hearing and consented to the Tribunal making a decision on the papers without taking any further action to allow or enable them to appear before it.  

5. The review applicant was represented in relation to the review.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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. As the applicant in this case has applied for a permanent visa, the exclusion provision in PIC 4005(3) does not apply. The relevant sub-clause in this case is PIC 4005(1)(aa).

   Background

8. The visa applicant in this case is a citizen of Russia born on [date].  She applied for the visa, which is a permanent visa, on 31 March 2016 at which time she was offshore. The visa applicant was sponsored by her son, [the review applicant], an Australian citizen.

9. The delegate found the applicant was required to undergo medical examination to meet PIC 4005. On 11 May 2020 the Department requested, but the visa applicant did not provide, evidence of the visa applicant having undertaken the specified medical assessments.  The Department made subsequent requests that the applicant undertake relevant medical assessment, but no evidence was provided that the visa applicant had done so.

10. On 10 January 2024, the delegate refused to grant the visa because the applicant had not undertaken the relevant medical assessments and therefore did not meet PIC 4005. At the time the delegate made her decision there was no evidence that the applicant had undertaken the medical assessment required by PIC 4005(1)(aa).

11. The Tribunal has therefore considered whether the visa applicant satisfies PIC 4005(1)(aa) for the purpose of meeting cl. 143.225 of Schedule 2 of the Regulations.

    Has the applicant undertaken a medical assessment (PIC 4005(1)(aa))?

12. Public Interest Criterion 4005(1)(aa) requires that if the applicant is in a specified class of persons, he or she must undertake the specified medical assessment and be assessed by a person specified in the relevant legislative instrument unless a Medical Officer of the Commonwealth (MOC) decides otherwise. The relevant class of persons and medical assessments are specified in IMMI 15/144.

13. The Tribunal is satisfied that the visa applicant is in the specified class of persons in IMMI15/144. Therefore, the visa applicant must undertake the medical assessments specified in IMMI 15/144 unless a MOC decides otherwise. There is no evidence before the Tribunal that a MOC has decided that the applicant is not required to undertake the relevant examination.

14. There is no evidence that the visa applicant that has ever undertaken the required health examination.

15. On 20 March 2024, the Tribunal wrote to the applicants and noted that the visa had been refused by the delegate because the visa applicant had not undertaken the relevant health examination. The Tribunal requested that the visa applicant undertake a health examination by 22 April 2024. No evidence has been provided of the visa applicant having undertaken the required health examination.  

16. On 21 March 2024 the review applicant submitted, via his representative, that ‘the visa applicant has a number of serious health issues, including dementia’. Given these health issues, the review applicant submitted that it was his view that it ‘will not be possible for [the visa applicant] to satisfy the health criteria outlined in PIC 4005’.

17. As noted above, the review applicant also declined the offer of a hearing and consented to the Tribunal making a decision on the papers.

18. As the applicant has not undertaken the relevant health examination, the Tribunal finds that the requirements in PIC 4005(1)(aa) are not met. For these reasons the visa applicant does not satisfy cl. 143.225 of Schedule 2 to the Regulations because the health criteria in PIC 4005(1)(aa) of Schedule 4 to the Regulation are not met.

19. As the applicant does not satisfy PIC 4005, the requirements for the grant of the visa to the applicant pursuant to cl 143.225 of Schedule 2 to the Regulations are not met and the Tribunal must affirm the decision under review.

    Ministerial intervention

20. Under s 351 of the Act, the Minister may substitute a decision of the Tribunal for another decision that is more favourable for the applicant. On 21 March 2024, the review applicant submitted, via his representative, that ‘in the event of a negative Tribunal decision, which must occur, [the review applicant] will make on behalf of his mother, a Ministerial Intervention request’ under s 351 of the Act. 

21. The Department’s Procedures Advice Manual (PAM3) sets out Guidelines relating to the Minister’s discretionary power under s 351 of the Act and the types of cases that that might be referred to the Minister for consideration. The Guidelines state that the Minister has indicated to the Department that it would be inappropriate for the Minister to intervene in circumstances where a person has an ongoing application for merits review of a visa decision before the Tribunal. The Tribunal was not asked to refer this matter to the Department to be brought to the Minister’s attention and nor, given the visa applicant currently has an ongoing application for review of a decision to refuse to grant her a visa, would it be appropriate for the Tribunal to make such a referral.

    CONCLUSION

22. As the applicant has not satisfied the requirements of PIC 4005, the Tribunal must affirm the decision under review.

    DECISION

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

    Frances Simmons
    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.