Charlesworth (Migration)

[2018] AATA 705

Charlesworth (Migration) [2018] AATA 705 (12 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Andrea Bernadette Charlesworth

VISA APPLICANTS:  Mr Neville Arthur Browne
Mrs Teresa Marcy Browne
Ms Rochelle Louise Browne

CASE NUMBER:  1609347

DIBP REFERENCE(S):  OSF2007/070821

MEMBER:Kira Raif

DATE:12 March 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicants Parent (Migrant) (Class AX) visas.

Statement made on 12 March 2018 at 12:34pm

CATCHWORDS
Migration – Parent (Migrant) (Class AX) visa – Subclass 103 (Parent) – Requirement for all members of family unit to be free of certain diseases or conditions – Medical Officer of the Commonwealth determined applicant did not meet requirement – Tribunal required to take opinion as correct

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 2.25A, Schedule 2, cls 103.227, 103.323, Schedule 4, 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 26 April 2016 to refuse to grant the visa applicants Parent (Migrant) (Class AX) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants are nationals of India. They applied for the visas on 30 July 2007. The delegate refused to grant the visa on the basis that the third named visa applicant (‘the visa applicant’) did not satisfy cl.103.227 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 sponsor (the review applicant) now seeks review of the delegate’s decision.

3. On 26 February 2018 the Tribunal wrote to the review applicant advising that it had considered all the material before it relating to her application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 27 March 2018. On 9 March 2018 the review applicant advised the Tribunal that she did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable her to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.

   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, 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)(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.

6. 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 certain temporary visas, the applicant is excluded from the requirement to be free from a disease or condition likely to result in significant cost in the areas of health care and community services: PIC 4005(3).

7. As the applicants in this case applied for a permanent visa, the exclusion provision in PIC 4005(3) does not apply and the applicant in this case must satisfy PIC 4005(1)(c)(ii)(A).

8. 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))?

9. On the evidence before the Tribunal, a MOC opinion is required. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that the visa applicants had undertaken health examinations and the first and second named applicant met the health requirements. However, the third named visa applicant did not meet the health requirements.

10. The parties claim, and the Tribunal accepts, that the third named applicant is a member of the family unit of the primary visa applicant. The Tribunal finds that as a member of the family unit of an application for the subclass 103 visa, she must meet the health requirement in PIC 4005. 

11. The primary decision record indicates that in December 2015 MOC formed the opinion that the third named applicant did not meet the health requirements. Additional evidence was submitted to the MOC but in March 2016 the MOC again formed the opinion that the visa applicant did not meet the health requirements. The Tribunal gave the parties an opportunity to seek a further opinion by RMOC but the review applicant indicated they did not wish to do that. 

12. 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.

13. The Tribunal is satisfied that the MOC opinion is validly reached. On the basis of it, the Tribunal finds that the third named visa applicant does not meet the health requirements  in PIC 4005. She does not meet cl. 103.323 and the primary visa applicant does not meet cl. 103.227.

14. The Tribunal acknowledges a number of statements in support of this application that have been provided to the Tribunal. However, having found that the applicants do not meet a criterion for the grant of the visa, the Tribunal has no option but to affirm the decision under review.

    Conclusion

15. As one of the applicants has not satisfied the requirements of PIC 4005, the Tribunal must affirm the decision under review.

    DECISION

16. The Tribunal affirms the decision not to grant the visa applicants Parent (Migrant) (Class AX) visas.

    Kira Raif
    Senior Member