Gandhi (Migration)

[2018] AATA 50

Gandhi (Migration) [2018] AATA 50 (4 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mansukhlal Gandhi

Mrs Nirmala Gandhi

CASE NUMBER:  1602769

DIBP REFERENCE(S):  CLF2013/137497

MEMBER:Kira Raif

DATE:4 January 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the second named applicant an Aged Parent (Residence) (Class BP) visa.

The Tribunal has no jurisdiction in relation to the first named applicant.

Statement made on 04 January 2018 at 5:13pm

CATCHWORDS
Migration – Aged Parent (Residence) (Class BP) visa – Subclass 804 (Aged Parent) – Requirement to be free of certain diseases or conditions – Medical Officer of the Commonwealth not satisfied applicant meets requirement – Tribunal required to take opinion of Medical Officer of the Commonwealth as Correct – Advanced age – Matter referred to Minister – Compassionate circumstances – First applicant deceased

LEGISLATION
Migration Act 1958, ss 65, 351
Migration Regulations 1994, r 2.25A, Schedule 2, cls 804.225, 804.226, Schedule 4, PIC 4005

CASES
Robinson v MIMIA (2005) 148 FCR 182
Ramlu v MIMIA [2005] FMCA 1735

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 17 February 2016 to refuse to grant the applicant an Aged Parent (Residence) (Class BP) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants are nationals of the UK. They applied for the visa on 18 June 2013. The delegate refused to grant the visa on the basis that the second named applicant (‘the applicant’) did not satisfy cl.804.226 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. The applicants sought review of the delegate’s decision.

3. Since the application for review was made, the Tribunal has been informed that the first named applicant has passed away. The Tribunal finds that it has no jurisdiction in relation to the first named applicant.

4. The applicant’s son appeared before the Tribunal on behalf of his mother on 4 January 2018 to give evidence and present arguments. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

5. 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  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.

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. There is no evidence before the Tribunal to indicate that the applicant was the holder of a substituted Subclass 600 visa at the time of the application. The Tribunal finds that the applicant was not the holders of the substituted subclass 600 visas and must meet the PIC 4005.

9. The applicant provided to the Tribunal a copy of the primary decision. It indicates the applicant was included in the application made by her husband, the first named applicant, who sought to meet the primary criteria. Mr Ghandi has passed away since the application was made and the applicant now seeks to meet the primary criteria for visa grant.

10. On the evidence before the Tribunal, a MOC opinion is required. According to the primary decision record, the applicant was required to undertake medical examinations. In January 2015 a Medical Officer of the Commonwealth assessed the applicant as not meet the health requirements in PIC 4005(1)(c)(ii)(A). The applicant provided additional medical evidence which was referred to the MOC but on 12 January 2016 MOC assessed the applicant as not meet the health criteria. The applicant informed the Tribunal that she did not wish to obtain a further medical opinion.

11. Having regard to the information contained in the primary decision, the Tribunal finds that the MOC opinion was obtained and the opinion is that the applicant does not meet the health requirements. 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. The Tribunal is satisfied that the MOC opinion is valid.

12. Based on the opinion of the MOC, the applicant does not satisfy public interest criterion 4005(1)(c). The Tribunal is not satisfied the applicant meets cl. 804.225 and cl 804.226.

13. In oral evidence Mr Ghandi indicated that his mother is self-sufficient and would not rely on the medical services in Australia. The applicant provided to the Tribunal a number of documents and submissions concerning family circumstances. The applicant claims she is too frail to and has provided evidence concerning the availability of family support in Australia. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The Tribunal is mindful that the applicant is 90 years of age and may be too frail to travel long-distance. The Tribunal acknowledges she has family support in Australia. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3). The Tribunal has formed the view that there may be compassionate circumstances that justify a referral to the Minister and will refer the matter to the Department.

    Conclusion

14. As the applicant has not satisfied the requirements of PIC 4005, the Tribunal must affirm the decision under review.

    DECISION

15. The Tribunal affirms the decision not to grant the second named applicant an Aged Parent (Residence) (Class BP) visa.

16. The Tribunal has no jurisdiction in relation to the first named applicant.

    Kira Raif
    Senior Member