Gan (Migration)

[2021] AATA 4912

Gan (Migration) [2021] AATA 4912 (20 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Ah Wan Gan

CASE NUMBER:  2110433

HOME AFFAIRS REFERENCE(S):          CLF2011/43237

MEMBER:Brendan Darcy

DATE:20 December 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for an Aged Parent (Residence) (Class BP) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 804 (Aged Parent) visa:

· PIC 4005(1)(a), (b) and (c) for the purposes of cl.804.225 of Schedule 2 to the Regulations

Statement made on 20 December 2021 at 9:23am

CATCHWORDS
MIGRATION – Aged Parent (Residence) (Class BP) visa – Subclass 804 (Aged Parent) – health criteria – assessment of medical officer of commonwealth provided to tribunal and taken as correct – decision without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1959 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.25A, Schedule 2, cl 804.225, Schedule 4, criterion 4005(1)

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 Home Affairs on 27 July 2021 to refuse to grant the applicant a Aged Parent (Residence) (Class BP) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 16 March 2011. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 804.225 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4005 of Schedule 4 to the Regulations was not met.

3. The applicant was represented in relation to the review.

4. The Tribunal has assessed that it can reach a favourable decision based on the evidence before it and has proceed to make a decision without scheduling a hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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, 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.

7. When the delegate refused the application for an Aged Parent visa, it did so on the basis of a received opinion from a received letter on 25 March 2021 from a Medical Officer of the Commonwealth  that the applicant did not meet the health requirement, and having not received any additional evidence of a medical nature after being invited to comment on the 25 March 2021 MOC report.

8. The review applicant validly applied to have the delegate’s decision reviewed by the Tribunal on 12 August 2021. On 2 November 2021, the Tribunal requested the applicant to obtain another opinion from a Medical Officer of the Commonwealth.

9. On 17 November 2021, the Tribunal received MOC letter dated 16 November 2021 indicting the applicant had been assessed against the Public Interest Criterion (PIC 4005P and that the applicant meets the heath requirement based on the MOC’s opinion on available medical and radiological reports.

   Is the 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 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 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 certain temporary visas, the applicant is excluded from the requirement to be free from a disease or condition likely to result in significant cost in the areas of health care and community services: PIC 4005(3). As the applicant in this case has applied for a permanent visa, the exclusion provision in PIC 4005(3) does not apply and the applicant in this case must satisfy PIC 4005(1)(c)(ii)(A).

12. In determining whether a person meets PIC 4005(1)(a), (b) or (c) reg 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: reg 2.25A(3).

    Is a MOC opinion required?

13. 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.

14. Based on the MOC’s second opinion letter dated 16 November 2021, the Tribunal is  satisfied the requirements under PIC 4005(1)(a), (b) and (c). There is no evidence the applicant failed PIC 4005(a) in the form of a record of her having past or active tuberculosis. available. There is no indication the first named applicant has any other serious disease detected in a medical examination, as required by PIC 4005(1)(b). 

15. There is no information before the Tribunal that the applicant does not meet PIC 4005(1)(a), or (b). On the basis of these findings, a MOC opinion is not required.

16. On the basis of the evidence before the Tribunal, the second named applicant satisfies PIC 4005(1)(a) and (b). With no evidence to the contrary, the Tribunal is further satisfied that the PIC 4005(1)(c) is met.

17. Accordingly, based on the opinion of the MOC, the applicant satisfies public interest criterion 4005(1)[(a) and (b) and(c). 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 an Aged Parent (Residence) (Class BP) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 804 (Aged Parent) visa:

    · PIC 4005(1)(a), (b) and (c) for the purposes of cl.804.225 of Schedule 2 to the Regulations.

    Brendan Darcy
    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)Sub-subparagraph (1) (c) (ii) (A) does not apply if:

    (a)the applicant would not be eligible for the provision of the health care or community services; and

    (b)the ineligibility would be due to the temporary visa for which the applicant is applying being of a particular subclass; and

    (c)the subclass is not specified by the Minister in an instrument in writing made under subparagraph (2) (b) (ii).