KHATRA (Migration)

[2018] AATA 1978

KHATRA (Migration) [2018] AATA 1978 (6 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr TEJINDER SINGH KHATRA
Mr HARINDER SINGH KHATRA

CASE NUMBER:  1609716

DIBP REFERENCE(S):  CLF2013/124073

MEMBER:Kira Raif

DATE:6 June 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Aged Parent (Residence) (Class BP) visas.

Statement made on 06 June 2018 at 9:47am

CATCHWORDS
Migration – Aged Parent (Residence) (Class BP) – Subclass 804 (Aged Parent) – Second named applicant – Dependent child of the primary visa applicant – Failed to meet the health requirements – Decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.12, 2.25A Schedule 2 cls 804.225, 804.226 Schedule 4 Criteria 4005

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 14 June 2016 to refuse to grant the applicants Aged Parent (Residence) (Class BP) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants are nationals of India. They applied for the visas on 27 May 2013. The delegate refused to grant the visa on the basis that the second named 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 seek review of the delegate’s decision.

3. The first named applicant appeared before the Tribunal on 6 June 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor and the sponsor’s partner. The applicants were represented in relation to the review by their registered migration agent. 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 applicants in this case have 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 substituted Subclass 600 visas at the time of the application. The Tribunal finds that the visa applicants were not the holders of the substituted subclass 600 visas and must meet the PIC 4005.

9. The second named applicant was included in the application as a dependent child of the primary visa applicant. He wrote to the Tribunal withdrawing the application for review in February 2018 but almost immediately advised the Tribunal that he wished to proceed with the application. The first named applicant confirmed in oral evidence to the Tribunal that his son continued to be part of the review application. The Tribunal is satisfied that he is an applicant for the visa.

10. The applicants provided to the Tribunal a copy of the primary decision record. It indicates that the applicants were requested to undertake medical examinations and while the first named applicant passed the health checks, the second named applicant did not. The Tribunal gave the applicants an opportunity to obtain an RMOC opinion but they chose not to do that.

11. In the written submission to the Tribunal received on 31 May 2018 the first named applicant (‘the applicant’) argues that his son is not a member of the family unit because he is not a dependent child. The applicant argues that his son is dependent on his brother Davinder and his spouse and has been wholly reliant on Davinder and his wife for financial support to cover his basic needs. The applicant states that due to his age, he cannot secure employment and has no regular income and saving and cannot support his son. The applicant provided financial records, various declarations and other materials in support of these claims. The parties’ oral evidence to the Tribunal also indicated that the second named applicant was financially and physically dependent on his brother and not on his father. The applicant claims they wanted to arrange adoption of the secondary applicant but this could not be arranged.

12. The Tribunal finds these submissions unconvincing. The Tribunal is mindful that the applicant’s present claims contradict the information provided in the visa application where the secondary applicant was identified as being a member of the family unit of the primary applicant. Thus, in Part C of Form 40 Harinder Singh Khatra is identified as a member of the applicant’s family unit and a dependent family member. Similarly, in response to Question 55 of the Application form 47PA the applicant also referred to his son as a dependent child. It is not until the application was refused and shortly before the applicants’ appearance before the Tribunal that the parties decided to change their claims and this appears to have been done in response to the adverse findings of the delegate.

13. The parties state that the circumstances have changed since the application was made. However, the Tribunal is mindful that the second named applicant continues to be included in the application for review. There is no suggestion that the second named applicant meet the primary criteria for visa grant, for example, he cannot meet the age requirements, and he is included in the application as a member of the family unit. His application has not been withdrawn despite the applicant’s inquiries concerning the removal of that child from the application. As he continues to be a part of the application – and the only basis for that is as a member of the family unit - it appears that the applicant continues to rely on his son being a member of his family unit at the time of this decision.

14. The applicant addressed the issue of his son’s dependence. The Tribunal notes that some of the written submissions refer to the older definitions of dependence which may not be applicable in the present case. The applicant argues that he has no financial capacity to support his son and the sponsor is the sole source of support for the secondary applicant. However, the Tribunal notes that the definition of ‘dependent child’ which is relevant to the definition of being a member of the family unit in r. 1.12, is not limited to financial dependence. Relevantly, paragraph (b)(ii) of the definition of ‘dependent child’ refers to a child who has turned 18 and who is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions. There is no requirement to establish financial dependence where such incapacity exists.

15. The Tribunal explained the definition of dependence to the applicant in the course of the hearing. The applicant’s representative then submitted that the secondary applicant is not incapacitated for work. That submission contradicts the evidence of the applicant who told the Tribunal that his son has never worked and is incapable of working. The applicant said that his son is unable to walk long distance and because of his condition, he cannot work and has never sought employment. The Tribunal prefers the evidence of the primary visa applicant rather than the advice from the representative, which does not appear to be based on any instructions or probative evidence.

16. The Tribunal accepts the evidence that the second named applicant is financially supported by his brother and not his father. The Tribunal also accepts the evidence of the sponsor and his partner that they provide financial support and physical support to the second named applicant and that his father is unable to take care of the child. The Tribunal accepts that the family are taking care of the second named applicant and will continue to do that in the future.

17. Having regard to the MOC opinion and the applicant’s oral evidence, the Tribunal finds that the second named applicant is incapacitated for work due to the total or partial loss of his bodily or mental functions. The Tribunal finds that he meets paragraph (b)(ii) of the definition of ‘dependent child’. The Tribunal finds that the second named applicant is a dependent child of the primary visa applicant and a member of his family unit. He must therefore meet the health requirements in PIC 4005.

18. 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 second named applicant does not meet the health requirements. The Tribunal is satisfied it is a valid opinion. Having regard to the MOC opinion, the Tribunal is not satisfied the second named applicant meets PIC 4005. The Tribunal is not satisfied the applicant meets cl. 804.226 and, for the same reason, the second named applicant cannot meet the primary criteria in cl. 804.225.

    Conclusion

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

    DECISION

20. The Tribunal affirms the decision not to grant the applicants Aged Parent (Residence) (Class BP) visas.

    Kira Raif
    Senior Member