Islam (Migration)

[2018] AATA 1486

Islam (Migration) [2018] AATA 1486 (1 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Dr A K M  Shawkat UL Islam

VISA APPLICANTS:  Mr Nurul Islam
Mrs Shamsun Nahar Islam

CASE NUMBER:  1612916

DIBP REFERENCE(S):  2014/083383

MEMBER:Kira Raif

DATE:1 May 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicants Contributory Parent (Migrant) (Class CA) visas.

Statement made on 01 May 2018 at 11:45am

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 7 June 2016 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 are nationals of Bangladesh. They applied for the visas on 29 January 2014. The delegate refused to grant the visa on the basis that the second named visa applicant did not satisfy cl.143.229 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 were not met. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 14 July 2017 to give evidence and present arguments. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. 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, 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.

5. 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).

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

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 visa applicants were the holders of a substituted Subclass 600 visa at the time of application. The Tribunal finds that they must meet PIC 4005.

9. On the evidence before the Tribunal, a MOC opinion is required. The primary decision record, a copy of which the review applicant provided to the Tribunal, indicates that the visa applicants were required to undergo medical examination during the processing of their application. The primary visa applicant met the health requirements, however, the Medical Officer of the Commonwealth (MOC) formed the view that the second named visa applicant did not meet the health requirements. The visa applicant provided additional medical evidence, which was considered by the MOC but the opinion remained unchanged.

10. In oral evidence to the Tribunal the review applicant outlined his concerns about the MOC report and the assessment of the prognosis and the costs. The review applicant also presented evidence of having the financial capacity to support the visa applicant. The review applicant referred to the visa applicant’s circumstances and the scope for making the contribution to the community. The Tribunal acknowledges the review applicant’s evidence but has formed the view that the MOC opinion is valid. The Tribunal is 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 and has identified 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 applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition.

11. At the review applicant’s request, the Tribunal allowed more time for the visa applicant to undergo further medical treatment and to obtain further evidence. Several extensions of time were granted for the provision of additional evidence. The review applicant was granted until the end of March 2018, nine months after the Tribunal hearing was held, to provide the relevant evidence, but he has not done so. The Tribunal sent several reminders to the review applicant since that time with no response. The Tribunal informed the review applicant that it would proceed to the decision on or after 30 April with no further communication received from the review applicant at the time of this decision. In such circumstances, the Tribunal has decided to proceed to the decision on the material before it.

12. The Tribunal finds, having regard to the MOC opinion referred to in the primary decision record, that the second named visa applicant does not meet the health requirements. The Tribunal finds that second named visa applicant is the spouse, and a member of the family unit, of the primary visa applicant. The Tribunal is not satisfied the visa applicant meets cl. 143.229 and the second named applicant does not meet the primary criteria for visa grant.

    Conclusion

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

    DECISION

14. The Tribunal affirms the decision not to grant the visa applicants Contributory Parent (Migrant) (Class CA) visas.

    Kira Raif
    Senior Member