Fang (Migration)

[2019] AATA 2656

Fang (Migration) [2019] AATA 2656 (1 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Fanilia Fang  

VISA APPLICANTS:  Ms Yenny

Mr Sugianto

CASE NUMBER:  1817982

DIBP REFERENCE(S):  2014/031998

MEMBER:K. Chapman

DATE:1 April 2019

PLACE OF DECISION:  Brisbane

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

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

·The Tribunal does not have jurisdiction with respect to the second named visa applicant.

Statement made on 01 April 2019 at 6:35pm

CATCHWORDS
MIGRATION – Contributory Parent (Migrant) (Class CA) visa – Subclass 143 (Contributory Parent) – death of second named applicant who did not meet criteria – withdrawal of second applicant from tribunal review – first applicant meets health criteria – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994, Schedule 2, cl 143.225, Schedule 4, PIC 4005(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 Immigration on 19 April 2018 to refuse to grant the visa applicants Contributory Parent (Migrant) (Class CA) visas under s.65 of the Migration Act 1958 (‘the Act’).

2. The visa applicants applied for the visas on 21 November 2014. The delegate refused to grant the visas on the basis that the second named visa applicant, Mr Sugianto, did not satisfy cl.143.225 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’) because he failed to meet the health criteria in public interest criterion (‘PIC’) 4005 of Schedule 4 to the Regulations.

3. The Tribunal did not consider a hearing to be necessary in this matter, as it was able to find in favour of the review applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

4. Accordingly, for the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   BACKGROUND

5. The visa applicants are the biological parents of the review applicant, Ms Fanilia Fang (aka Fanilia). The second named visa applicant, Mr Sugianto, was the primary visa applicant in the visa application. On 10 October 2017, he was found by a Medical Officer of the Commonwealth (MOC) not to satisfy PIC 4005(1)(c)(ii)(A) due to a health condition. Accordingly, the delegate determined Mr Sugianto did not satisfy cl.143.225 and the visa was refused for both him and his wife, Ms Yenny, who is the first named visa applicant. Of note, the delegate recorded that Ms Yenny was found by the MOC in February 2018 to satisfy PIC 4005(1)(c)(ii)(A). Following refusal of the visa applications, on 19 June 2018 the review applicant applied for review in the Tribunal and provided a copy of the delegate’s decision with her application for review.

6. On 18 January 2019, the Tribunal wrote to the review applicant offering an opportunity to obtain a further MOC opinion. In response, the Tribunal was advised that the second named visa applicant, Mr Sugianto, had passed away on 16 January 2019. A submitted Certificate of Registration of Death from the Republic of Singapore confirms the passing of Mr Sugianto. It is contended by the review applicant that her mother, Ms Yenny, did satisfy the requirements of PIC 4005(1)(c)(ii)(A) and accordingly she should be granted the visa.

7. On 25 March 2019, the review applicant withdrew Mr Sugianto, the second named visa applicant, from the application for review. The review applicant, Ms Fanilia Fang, also provided identity documents confirming that the first named visa applicant, Ms Yenny, is her biological mother. The Tribunal accepted the withdrawal of the second named visa applicant from the application for review and accordingly it does not have jurisdiction with respect to him.

8. Having regard to the new circumstances pertaining to the application for review, the Tribunal has proceeded on the basis that the first named visa applicant, Ms Yenny, is now the primary visa applicant. Given the particulars of the present matter, she must satisfy the requirements of PIC 4005.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this review is whether the first named visa applicant, Ms Yenny, 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 first named visa 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 first named visa applicant free from the relevant diseases or conditions (PIC 4005(1)(a), (b), (c))?

10. Public interest criterion 4005(1)(a) and (b) require the first named visa 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.

11. Public interest criterion 4005(1)(c) requires the first named visa 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 first named visa 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).

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

13. 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 a MOC opinion required?

14. 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.

15. The delegate noted in the visa refusal decision that the first named visa applicant, Ms Yenny, was declared by the MOC in February 2018 to meet the health requirement pursuant to PIC 4005(1)(c)(ii)(A). The Departmental file confirms Ms Yenny received that MOC clearance on 8 February 2018. The Tribunal is satisfied that in the circumstances of the present matter the aforementioned clearance remains current.

16. Accordingly, based on the opinion of the MOC of February 2018, the first named visa applicant, Ms Yenny, satisfies public interest criterion 4005(1)(c)(ii)(A).

17. 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

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

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

    ·The Tribunal does not have jurisdiction with respect to the second named visa applicant.

    K. Chapman
    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.