Allen (Migration)

[2018] AATA 4627

Allen (Migration) [2018] AATA 4627 (16 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Elsie Maud Allen
Mr Richard John Allen

CASE NUMBER:  1609056

DIBP REFERENCE(S):  CLF2014/81812

MEMBER:Kira Raif

DATE:16 August 2018

PLACE OF DECISION:  Sydney

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

Statement made on 16 August 2018 at 1:53pm

CATCHWORDS

MIGRATION – Aged Parent (Residence) (Class BP) visa – Subclass 804 (Aged Parent) – second named applicant did not meet the health requirement – second named applicant does not satisfy public interest criterion 4005 – Decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, r.2.25A, Schedule 2, cls 804.225, 804.226, Schedule 4, Public Interest Criterion (‘PIC’) 4005

CASES
Ramlu v MIMIA [2005] FMCA 1735

Robinson v MIMIA (2005) 148 FCR 182

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 2 June 2016 to refuse to grant the applicants Aged Parent (Residence) (Class BP) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants are nationals of the UK. They applied for the visas on 1 June 2014. The delegate refused to grant the visa on the basis that the second named applicant did not satisfy cl.804.226 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. The applicants seek review of the delegate’s decision.

3. The applicants appeared before the Tribunal on 15 March 2018 give evidence and present arguments. The applicants were represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. The issue in this review is whether the visa applicants meet 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.

5. 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).

6. As the applicants in this case have applied for a permanent visa, the exclusion provision in PIC 4005(3) does not apply.

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

8. There is no evidence before the Tribunal to indicate that the visa applicants were the holders of substituted Subclass 600 visas at the time of the application. The Tribunal finds that the applicants were not the holders of the substituted subclass 600 visas and must meet the PIC 4005.

9. The second named applicant is the spouse of the primary visa applicant and was included in the application. The Tribunal is satisfied that he is the spouse and a member of the family unit of the primary visa applicant.

10. The applicants provided to the Tribunal a copy of the primary decision record. It indicates the applicants were required to undertake health examinations. The first named applicant met the health requirements but in August 2015 the MOC formed the view that the second named applicant did not meet the health requirements. He provided additional medical evidence to the delegate and in October 2015 the MOC again formed the view that Mr Allen did not meet the health requirements.

11. There is additional medical evidence before the Tribunal. At the applicants’ request, the Tribunal arranged for another review by the RMOC. On 20 July 2018 the Tribunal received the opinion from RMOC that the second named applicant did not meet the health requirement. The applicants were invited to comment on that information but the Tribunal did not receive their comments or response within the prescribed period.

12. The Tribunal finds that a MOC opinion is not required. The MOC opinion is that the second named applicant does not meet the health requirements. 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 and Ramlu v MIMIA [2005] FMCA 1735. 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. The Tribunal is satisfied that the MOC opinion is valid.

13. Based on the opinion of the MOC, the second named applicant does not satisfy public interest criterion 4005. The Tribunal finds that the applicant does not meet cl. 804.226 and the second named applicant cannot meet the primary criteria in c. 804.225.

    Conclusion

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

    DECISION

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

    Kira Raif
    Senior Member