Khou (Migration)

[2020] AATA 4261

Khou (Migration) [2020] AATA 4261 (5 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Keang Khou

VISA APPLICANTS:  Mrs Hou Tang
Mr Hav Khou
Mr Lim Khou

CASE NUMBER:  1900970

DIBP REFERENCE(S):  BCC2018/2683009

MEMBER:Justine Clarke

DATE:5 August 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for Contributory Parent (Migrant) (Class CA) visas for reconsideration, with the directions that:

·the first-named visa applicant meets the following criteria for a Subclass 143 (Contributory Parent) visa:

o the health requirement in PIC 4005 for the purpose of cl.143.229 of Schedule 2 to the Regulations; and

·the third-named visa applicant meets the following criteria for a Subclass 143 (Contributory Parent) visa:

o the health requirement in PIC 4005 for the purpose of cl.143.324 of Schedule 2 to the Regulations.

Statement made on 05 August 2020 at 7:00pm

CATCHWORDS

MIGRATION – Contributory Parent (Migrant) (Class CA) visa – Subclass 143 ((Contributory Parent)) – health criteria – member of the family unit – current Medical Officer of the Commonwealth opinions – decision under review remitted           

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cls 143.321, 143.324, 143.329; Schedule 4 Public Interest Criterion 4005

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 12 November 2018 to refuse to grant the visa applicants Contributory Parent (Migrant) (Class CA) visas under s.65 of the Migration Act 1958 (the Act).

2. It is claimed that the first and second-named visa applicants are the parents of the review applicant and the third-named visa applicant.

3. On 28 July 2018, the visa applicants applied for the visas and the review applicant sponsored the application for the visas.

4. At the time of this decision, the review applicant is 40 years of age; the first-named visa applicant is 66 years of age; the second-named visa applicant is 70 years of age and the third-named visa applicant is 34 years of age.

5. The review applicant provided the Tribunal with a copy of the delegate’s decision. The delegate refused to grant the visas on the basis that:

   ·the first-named visa applicant did not satisfy cl.143.229[1] of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4005[2] of Schedule 4 to the Regulations was not met by the third-named visa applicant who is a dependent applicant;

   ·the second-named visa applicant did not satisfy cl.143.321[3] because the primary and dependent applicants do not hold a Contributory Parent Subclass 143 visa; and

   ·the third-named visa applicant did not satisfy cl.143.324[4] because the primary and dependent applicants do not hold a Contributory Parent Subclass 143 visa.

   1The primary decision contains an extract of cl.143.229. It is a primary criterion and must be met at the time of decision.

   2Public Interest Criterion 4005, as it applies to this case, is extracted in the attachment to this decision.

   3The primary decision contains an extract of cl.143.321. It is a secondary criterion and must be met at the time of decision.

   4The primary decision contains an extract of cl.143.324. It is a secondary criterion and must be met at the time of decision.

6. On 9 April 2018, the review applicant applied to the Tribunal for review of the primary decision. The review applicant was represented in relation to the review by his registered migration agent.

7. On 13 July 2020, after the matter had been constituted to the presiding Member, the Tribunal wrote to the review applicant, by way of the representative, and invited him to obtain a further opinion from a Medical Officer of the Commonwealth (MOC) in respect of the third-named visa applicant because the earlier opinion was no longer current.

8. Subsequently, a request for a further opinion and relevant information was forwarded to the MOC.

9. On 31 July 2020, the MOC made a further opinion. The MOC stated they were of the opinion that the third-named visa applicant meets the health requirement for a permanent stay in Australia.

10. Having reviewed the material before it, the Tribunal formed that view that a hearing was not needed. The Tribunal determined that it was able to find in favour of the review applicant based on the material before it, pursuant to s.360(2)(a) of the Act.

11. Based on the opinion of the MOC, at the time of this decision, the third-named visa applicant satisfies the health requirement in PIC 4005. Based on this evidence, the Tribunal finds that, at the time of this decision:

    ·the third-named visa applicant satisfies the health requirement in PIC 4005 and, accordingly, that the first-named visa applicant satisfies the health requirement in PIC 4005 for the purpose of cl.143.229; and

    ·the third-named visa applicant satisfies the health requirement in PIC 4005 for the purpose of cl.143.324.

12. As the Tribunal has found that the first-named visa applicant satisfies the health requirement in PIC 4005 for the purpose of cl.143.229, the ability of the second-named visa applicant to satisfy the secondary criteria in cl.143.321 should also be reconsidered.

13. 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

14. The Tribunal remits the application for Contributory Parent (Migrant) (Class CA) visas for reconsideration, with the directions that:

    ·the first-named visa applicant meets the following criteria for a Subclass 143 (Contributory Parent) visa:

    §the health requirement in PIC 4005 for the purpose of cl.143.229 of Schedule 2 to the Regulations; and

    ·the third-named visa applicant meets the following criteria for a Subclass 143 (Contributory Parent) visa:

    §the health requirement in PIC 4005 for the purpose of cl.143.324 of Schedule 2 to the Regulations.

    Justine Clarke
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    Schedule 4

    4005(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.