Desai (Migration)

[2018] AATA 1560

Desai (Migration) [2018] AATA 1560 (16 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ronak Kirtikumar Desai

VISA APPLICANT:  Mrs Daxaben Kirtikumar Desai

CASE NUMBER:  1702505

DIBP REFERENCE(S):  BCC2016/2290994

MEMBER:Kate Millar

DATE:16 May 2018

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for a Contributory Parent (Migrant) (Class CA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 143 (Contributory Parent) visa:

·PIC 4005(1)(c) for the purposes of cl.143.225 of Schedule 2 to the Regulations.

Statement made on 16 May 2018 at 12:53pm

CATCHWORDS
Migration – Contributory Parent (Migrant) (Class CA) visa – Subclass 143 (Contributory Parent) – Whether the applicant meets the health criteria – Previous Medical Officer of the Commonwealth opinion assessed that the applicant did not meet the criteria – Subsequent opinion assessed the applicant as meeting the criteria – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.25A, Schedule 2, cl 143.225, Schedule 4, PIC 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 a decision made by a delegate of the Minister for Immigration on 8 February 2017 to refuse to grant Mrs Desai a Contributory Parent (Migrant) (Class CA) visa under s.65 of the Migration Act 1958 (the Act).

2. Mrs Desai applied for the visa on 7 July 2016. The delegate refused to grant the visa on the basis that she did not satisfy cl.143.225 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. The review applicant sought a further opinion from the Medical Officer of the Commonwealth on Mrs Desai’s condition.  An opinion of a Medical Officer of the Commonwealth dated 16 April 2018 was provided to the tribunal on 2 May 2018. This opinion is that Mrs Desai meets the health requirement in PIC 4005 for a permanent stay in Australia. 

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The issue in this review is whether Mrs Desai 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.  

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

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. 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).

7. 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).

8. As the applicant in this case has applied for a permanent visa, the exclusion provision in PIC 4005(3) does not apply.

   Is a MOC opinion required?

9. On the evidence before the Tribunal, a MOC opinion is required. 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.

10. In this case, the medical opinion provided to the Tribunal states that the applicant has been assessed against PIC 4005 and meets the health requirement for permanent stay in Australia.  It correctly states the period that must be considered.  It states the opinion is based on available medical and radiological reports.  It does not identify the condition, and I have assumed in the applicant’s favour that the previous medical reports and assessment re provide to the Medical Officer of the Commonwealth.   

11. Accordingly, based on the opinion of the MOC, the applicant satisfies public interest criterion 4005(1)(c).

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 Contributory Parent (Migrant) (Class CA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 143 (Contributory Parent) visa:

    ·PIC 4005(1)(c) for the purposes of cl.143.225 of Schedule 2 to the Regulations.

    Kate Millar
    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.