Chen (Migration)

[2020] AATA 1906

Chen (Migration) [2020] AATA 1906 (21 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Haiying Chen

VISA APPLICANTS:  Mr Peiquan Chen
Mrs Yuhua AO

CASE NUMBER:  1925072

DIBP REFERENCE(S):  OSF2009/071994

MEMBER:Kira Raif

DATE:21 May 2020

PLACE OF DECISION:  Sydney

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

·PIC 4005(1)(c) for the purposes of cl.103.227 of Schedule 2 to the Regulations.

Statement made on 21 May 2020 at 5:19pm

CATCHWORDS
MIGRATION – Parent (Migrant) (Class AX) visa – Subclass 103 (Parent) – health criteria – free from relevant diseases or condition – advice from medical officer of commonwealth – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.25A, Schedule 2, cl 103.227, Schedule 4, criterion 4005(1)(c)

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 28 August 2019 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 applied for the visas on 29 June 2009. The delegate refused to grant the visa on the basis that the second named applicant did not meet the health criteria in Public Interest Criterion (‘PIC’) 4005 of Schedule 4 to the Regulations.

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.

   RELEVANT LAW

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 applicant provided to the Tribunal a copy of the primary decision record. It indicates that during the processing of the application the applicants were required to undertake health examinations. The second named applicant was found by the Medical Officer of the Commonwealth not to have met the health criteria.

9. In May 2020 the Tribunal received advice from the MOC that  the second named applicant now meets the health criteria. 

10. 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.

11. The Tribunal is satisfied the MOC opinion is valid. Accordingly, based on the opinion of the MOC, the second applicant satisfies public interest criterion 4005(1)(c).

    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 Parent (Migrant) (Class AX) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 103 (Parent) visa:

    ·PIC 4005(1)(c) for the purposes of cl.103.227 of Schedule 2 to the Regulations.

    Kira Raif
    Senior Member