Kazembe (Migration) - [2024] AATA 587

Kazembe (Migration) [2024] AATA 587 (14 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Mary Kazembe
REPRESENTATIVE:  Ms Haatsari Marunda
CASE NUMBER:  2307624
HOME AFFAIRS REFERENCE(S):          BCC2022/1674416
MEMBER:Damian Creedon
DATE:14 March 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:
·PIC 4005(1)(c)(ii)(A) for the purposes of cl 500.217 of Schedule 2 to the Regulations.

Statement made on 14 March 2024 at 3:28pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – health criteria – disease or condition likely to require health care or community services during specified period – severe asthma – opinion of medical officer of commonwealth stated to be for longer than duration of studies – opinion of review officer states applicant meets requirement, and taken as correct – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.25A(3), Schedule 2, cl 500.217, Schedule 4, criterion 4005(1)(c)(ii)(A)
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 12 May 2023 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 13 May 2022. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 500.217 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 appeared before the Tribunal on 21 February 2024 to give evidence and present arguments.
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 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 applicant free from the relevant diseases or conditions (PIC 4005(1)(a), (b), (c))?
Public interest criterion 4005(1)(a) and (b) require the visa applicant to be free from tuberculosis and free from a disease or condition that is, or may result in the visa applicant being, a threat to public health in Australia or a danger to the Australian community.
Public interest criterion 4005(1)(c) requires the visa applicant be free from a disease or condition which would be likely to require…

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 Kazembe (Migration)

Details

AGLC: Kazembe (Migration) [2024] AATA 587
Case: [2024] AATA 587
Decision Date: 14 March 2024

CaseChat Overview and Summary

This matter concerned an application for a Student (Temporary) (Class TU) visa, Subclass 500 (Student), where the applicant's eligibility hinged on meeting health criteria, specifically Public Interest Criterion (PIC) 4005. The dispute arose from conflicting medical opinions regarding the applicant's severe asthma, with an initial opinion from a Medical Officer of the Commonwealth (MOC) suggesting a condition lasting longer than the intended study period, and a subsequent review officer's opinion indicating the applicant met the requirements. The case was heard by Damian Creedon.

The primary legal issue before the Tribunal was whether the applicant met PIC 4005, which requires applicants to be free from certain diseases or conditions that could necessitate significant health or community services, thereby imposing a substantial cost on the Australian community or prejudicing access for citizens and permanent residents. Specifically, the Tribunal had to determine if the applicant's severe asthma fell within the scope of PIC 4005(1)(c), considering the duration of the visa and the potential impact on health services. A further issue was the weight to be given to the MOC's opinion, as regulation 2.25A mandates that such opinions must be taken as correct, provided the MOC has applied the correct statutory test.

The Tribunal reasoned that while it must accept a MOC's opinion as correct, it first needs to be satisfied that the MOC applied the correct legal test in forming that opinion. This involves the MOC identifying the medical condition, its severity, and applying the statutory criteria by reference to a hypothetical person with that condition. In this instance, the Tribunal found that the initial MOC opinion, while stating the condition would last longer than the study period, did not sufficiently demonstrate that the correct test had been applied in relation to PIC 4005(1)(c)(ii)(A). Consequently, the Tribunal concluded that the matter should be remitted for reconsideration.

The Tribunal remitted the application for a Student (Temporary) (Class TU) visa, Subclass 500 (Student), for reconsideration. The Tribunal directed that the applicant be taken as meeting PIC 4005(1)(c)(ii)(A) for the purposes of clause 500.217 of Schedule 2 to the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 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 applicant free from the relevant diseases or conditions (PIC 4005(1)(a), (b), (c))? Public interest criterion 4005(1)(a) and (b) require the visa applicant to be free from tuberculosis and free from a disease or condition that is, or may result in the visa applicant being, a threat to public health in Australia or a danger to the Australian community. Public interest criterion 4005(1)(c) requires the 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 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). In the present case, the temporary visa the visa applicant is seeking is not specified in Legislative Instrument IMMI 16/067. As such the health care and community services listed in instrument IMMI 11/073 are excluded from consideration. 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? 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.

Decision

Reasons for decision

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 The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 500 (Student) visa:·PIC 4005(1)(c)(ii)(A) for the purposes of cl.500.217 of Schedule 2 to the Regulations.Damian CreedonMemberATTACHMENTMigration Regulations 1994Schedule 44005(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.

Ratio Decidendi

Legal Principle Established

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