Fang (Migration)

[2022] AATA 1861

Fang (Migration) [2022] AATA 1861 (9 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Jing Fang

VISA APPLICANT:  Miss Chia-Ju Lin

CASE NUMBER:  1906268

HOME AFFAIRS REFERENCE(S):          OSF/2028002230

COUNTRY OF REFERENCE:                   Taiwan

MEMBER:Russell Matheson

DATE:9 June 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:

·PIC 4007(1)(c) for the purposes of cl 101.223 of Schedule 2 to the Regulations.

Statement made on 09 June 2022 at 9:27am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – health criteria – condition likely to require health care or community services – further opinion of medical officer of commonwealth received by tribunal – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 101.223, Schedule 4, criterion 4007(1)(c)(ii)(A)

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 Home Affairs on 14 January 2019 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 5 February 2018. The delegate refused to grant the visa as the visa applicant did not satisfy cl 101.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4007 of Schedule 4 to the Regulations was not met.

3. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Background

4. On 8 May 2018 the visa applicant undertook a medical examination and on 15 May 2018 the Medical Officer of the Commonwealth advised the visa applicant that she did not meet the health requirement of Schedule 4, specifically sub-paragraph PIC4007(1)(c)(ii)(A).

5. The Medical Officer of the Commonwealth gave the following reasons for the visa applicant failing to satisfy the above health criteria:

   ·The applicant is a 20-year-old person with schizophrenia, which is stable on three medications. She is likely to require lifelong support services and psychiatric care. The applicant would be likely to require ongoing medication and psychiatrist review, and the disability support pension. This condition is likely to be Permanent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this review is whether the visa applicant meets Public Interest Criterion (PIC) 4007 as required by the criteria for the grant of the visa. Public Interest Criterion 4007, 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. This last requirement may be waived in certain circumstances. The applicant in this case failed to meet the requirements of PIC 4007(1)(c)(ii)(A).

   Is the applicant free from the relevant diseases or conditions (PIC 4007(1)(a), (b), (c))?

7. Clauses 4007(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.

8. Clause 4007(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.

9. On 27 April 2022 the review applicant requested that a further medical opinion from a Medical Officer of the Commonwealth (MOC) be obtained. On 7 June 2022, the Tribunal received a Form 884 Medical Officer of the Commonwealth (MOC) opinion. The MOC stated that the visa applicant Miss Chia-Ju Lin meets the health requirements based on medical and radiological reports.

   DECISION

10. The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:

    ·PIC 4007(1)(c) for the purposes of cl 101.223 of Schedule 2 to the Regulations.

    Russell Matheson

    
    

    Member

    ATTACHMENT

    Migration Regulations 1994

    Schedule 4

    4007(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)      subject to subclause (2) — 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 (1A); 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.

    (1A)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.

    (1B)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 (1A)(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.

    (2)The Minister may waive the requirements of paragraph (1)(c) if.

    (a)     the applicant satisfies all other criteria for the grant of the visa applied for; and

    (b)     the Minister is satisfied that the granting of the visa would be unlikely to result in:

    (i)undue cost to the Australian community; or

    (ii)undue prejudice to the access to health care or community services of an Australian citizen or permanent resident.