Cheah (Migration)

[2020] AATA 2018

Cheah (Migration) [2020] AATA 2018 (14 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Dr Danny Cheah

VISA APPLICANT:  Mr Chee Thiam Cheah

CASE NUMBER:  1924802

DIBP REFERENCE(S):  OSF2010/001095

MEMBER:Kira Raif

DATE:14 May 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Parent (Migrant) (Class AX) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 103 (Parent) visa:

·PIC 4005(1)(c) for the purposes of cl.103.224 of Schedule 2 to the Regulations subject to a health undertaking.

Statement made on 14 May 2020 at 5:51pm

CATCHWORDS
MIGRATION – Parent (Migrant) (Class AX) visa – Subclass 103 (Parent) – health criteria – MOC opinion – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.25A; Schedule 2, cls 103.224; Schedule 4, PIC 4005

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 Immigration on 25 July 2019 to refuse to grant the visa applicant a Parent (Migrant) (Class AX) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 15 January 2010. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.103.224 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.

3. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. 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, 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 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).

6. As the applicant in this case has 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).

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. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that the visa applicant had undertaken health examinations during the processing of his application but was found not to meet the health requirements.

9. The review applicant provided to the Tribunal additional evidence. Importantly, evidence before the Tribunal indicates that a RMOC had reassessed the visa applicant’s condition and in February 2020 formed the view that the visa applicant meets the health requirements, subject to an undertaking.

10. In these circumstances, the Tribunal considers the most appropriate course is to remit the matter to the Department to enable the visa applicant to arrange the health undertaking.

11. Based on the opinion of the MOC, the applicant satisfies public interest criterion 4005(1)(c) subject to an undertaking.

    Conclusion

12. Given the findings above, the appropriate course is for the Tribunal to remit the matter to the Minister for reconsideration of the remaining criteria for the visa.

    DECISION

13. The Tribunal remits the application for a Parent (Migrant) (Class AX) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 103 (Parent) visa:

    ·PIC 4005(1)(c) for the purposes of cl.103.224 of Schedule 2 to the Regulations subject to a health undertaking.

    Kira Raif
    Senior Member