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

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).
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.
The applicant was represented in relation to the review.
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.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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.
The review applicant validly applied to have the delegate’s decision reviewed by the Tribunal on 12 August…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gan (Migration)

Details

AGLC: Gan (Migration) [2021] AATA 4912
Case: [2021] AATA 4912
Decision Date: 20 December 2021

CaseChat Overview and Summary

This matter concerned an application for an Aged Parent (Residence) (Class BP) visa, subclass 804, brought before the Administrative Appeals Tribunal. The applicant sought review of a delegate's decision to refuse the visa on the grounds that the applicant did not meet the health requirement under Public Interest Criterion (PIC) 4005.

The primary legal issue before the Tribunal was whether the applicant satisfied PIC 4005, which requires an applicant to be free from certain diseases or conditions that could pose a threat to public health or result in significant costs to the Australian community. The Tribunal was required to determine if a Medical Officer of the Commonwealth (MOC) opinion was necessary and, if so, to treat that opinion as correct.

The Tribunal noted that the delegate's initial refusal was based on a MOC report dated 25 March 2021. However, the Tribunal subsequently requested the applicant to obtain a further MOC opinion. A subsequent MOC letter dated 16 November 2021 indicated that the applicant met the health requirement based on available medical and radiological reports. The Tribunal observed that for permanent visa applications, the exclusion provision in PIC 4005(3) does not apply, meaning the applicant must satisfy PIC 4005(1)(c)(ii)(A). Regulation 2.25A mandates that the Tribunal seek a MOC opinion for permanent visa applications unless specific exceptions apply, and such an opinion must be taken as correct.

Given the conflicting MOC opinions and the requirement to treat a MOC opinion as correct, the Tribunal concluded that the matter should be remitted for reconsideration. The Tribunal found that a decision could not be made without further clarification or a definitive MOC opinion that addressed all relevant aspects of PIC 4005.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE 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. 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. 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. 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))? 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. 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). 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?