Dolezal (Migration)

[2017] AATA 2183

Dolezal (Migration) [2017] AATA 2183 (31 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Jaromira Dolezal

CASE NUMBER:  1513431

DIBP REFERENCE(S):  CLF 2014 / 1416 CLF2014/141697

MEMBER:Marten Kennedy

DATE:31 October 2017

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for a Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 835 (Remaining Relative) visa:

·PIC 4005 for the purposes of cl.835.223 of Schedule 2 to the Regulations.

Statement made on 31 October 2017 at 3:00pm

CATCHWORDS
Migration – Other Family (Residence) (Class BU) – Subclass 835 (Remaining Relative) visa – Non-adverse conclusion of medical assessment by MOC

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 2.25A(3), Schedule 2 cl 835.223, Schedule 4 PIC4005(1)

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 15 September 2015 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 13 December 2014. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.835.223 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 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 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.

4. The applicant in this case was the subject of an adverse opinion from a medical officer of the Commonwealth (MOC) of 28 May 2015, that expressed the opinion that the applicant suffered from mild to moderate functional impairment on account of her age.  The MOC’s opinion stated that the applicant had cognitive impairment, impaired mobility and required assistance with personal care such as washing and other activities.  The MOC was of the opinion that the applicant was unlikely to be able to live independently and will require residential case [care] services.  The MOC expressed the opinion that he this would be likely to result in a significant cost to the Australian community in the areas of health and community services.  The Department refused the visa on the basis of this adverse opinion from the MOC.

5. In the course of the proceedings before the Tribunal, the applicant obtained a further opinion from a MOC (10 January 2017) that expressed an opinion relevantly similar to the earlier MOC opinion.

6. The applicant, through her representatives, provided detailed submissions in response to an invitation to comment on the adverse MOC of 10 January 2017.  The submissions contended that the MOC opinion was invalid.  Without accepting all or any of the contentions in this regard, the Tribunal (previously constituted) was persuaded that a further opportunity to obtain the opinion of a MOC would be offered, particularly as updated medical evidence had been provided.  The applicant took up that opportunity.

7. The term of the Senior Member who previously constituted the Tribunal in this matter ended on 30 June 2017.  This matter was subsequently constituted to me.

8. On 17 July 2017, a MOC provided a new opinion to the effect that the applicant ‘met the health requirement for a permanent stay in Australia’.  The opinion is not further particularised, but I take the opinion, from its context,  to constitute a non-adverse conclusion in respect of each of paragraph (a), (b) and (c) of PIC4005(1).   Specifically, I take the opinion to contradict the adverse conclusions in the earlier MOC opinions in relation to the implications of the applicant’s advanced age.

9. I am bound to take the opinion of the MOC of 17 July 2017 to be correct: r.2.25A(3) of the Regulations.

10. I find that the applicant is 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.  I further find that the applicant is 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 period commencing with the visa application being made, for a permanent stay.

11. No issue arises as to any of the other aspects of PIC4005.

12. Accordingly, based on the opinion of the MOC, the applicant satisfies public interest criterion 4005(1)(a), (b) and (c), and I am satisfied that all other relevant aspects of the criteria are satisfied or otherwise inapplicable.

    DECISION

    The Tribunal remits the application for a Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 835 (Remaining Relative) visa:

    ·PIC 4005 for the purposes of cl.835.223 of Schedule 2 to the Regulations.

    Marten Kennedy
    Member