Eikenboom (Migration)

[2020] AATA 2308

Eikenboom (Migration) [2020] AATA 2308 (5 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Jennifer Eikenboom

VISA APPLICANT:  Mr Pieter Willem Eikenboom

CASE NUMBER:  1935083

DIBP REFERENCE(S):  OSF2015/020829

MEMBER:Kira Raif

DATE:5 May 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Contributory Parent (Temporary) (Class UT) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 173 (Contributory Parent (Temporary)) visa:

·PIC 4005(1)(c) for the purposes of cl.173.224 of Schedule 2 to the Regulations.

Statement made on 05 May 2020 at 12:11pm

CATCHWORDS
MIGRATION – Contributory Parent (Temporary) (Class UT) visa – Subclass 173 (Contributory Parent (Temporary)) – health criteria – MOC opinion – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.25A; Schedule 2, cl 173.224; 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 11 December 2019 to refuse to grant the visa applicant a Contributory Parent (Temporary) (Class UT) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 28 January 2015. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.173.224 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.

   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,. 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.

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 specified temporary visas, certain specified health care and community service are excluded from this consideration: PIC 4005(3).

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 primary decision record indicates that in August 2019 the delegate wrote to the visa applicant requesting him to undertake a health examination. As this was not done within the period allowed, the delegate was not satisfied the visa applicant meets PIC 4005.

9. In February 2020 the Tribunal received advice from the Department that on 19 February 2020 the visa applicant met the health requirements. Accordingly, based on the opinion of the MOC, the visa applicant satisfies public interest criterion 4005(1)(c).

   Conclusion

10. 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

11. The Tribunal remits the application for a Contributory Parent (Temporary) (Class UT) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 173 (Contributory Parent (Temporary)) visa:

    ·PIC 4005(1)(c) for the purposes of cl.173.224 of Schedule 2 to the Regulations.

    Kira Raif
    Senior Member