Ku (Migration)

[2018] AATA 392

Ku (Migration) [2018] AATA 392 (7 February 2018)

WRITTEN STATEMENT AND DECISION

Division:Migration and Refugee Division

Review Applicant:  Ms Ka Uen Caron Ku

Visa Applicant:  Ms Hang Chau Kwan

Case Number:  1702775

DIBP Reference(s):  OSF2014/091135

Visa Application Refusal:  Contributory Parent (Migrant) (Class CA) Subclass 143 visa

Member and Place:  Nicholas McGowan (Melbourne)

CATCHWORDS
Migration – Contributory Parent (Migrant) (Class CA) visa – Subclass 143 (Contributory Parent) – Health requirement – Applicant previously assessed as not meeting requirement – Applicant subsequently assessed as meeting requirement

LEGISLATION
Migration Act 1958, ss 65, 368
Migration Regulations 1994, Schedule 2, cl 143.225, Schedule 4, PIC 4005(1)(c)

Decision

1. The Tribunal remits the application with the direction the visa applicant (‘applicant’) meets Public Interest Criteria (PIC) 4005(1)(c) for the purposes of clause 143.225.

   Statement

2. This statement fulfils the Tribunal’s obligations under the Migration Act: s.368. While this statement sets out the Tribunals’ decision (above); the reasons for it and findings on material matters (including the evidentiary basis), to fully appreciate this decision, a third-party would need to appraise themselves with the documentary evidence in the Department of Immigration (‘department’) and Tribunal case files.

3. The applicant applied for the 143 visa on 25 June 2014. The Minister refused that application on 8 February 2017 on the basis that the Medical Officer of the Commonwealth assessed the applicant as not meeting the health requirement for the grant of the visa.

4. The review applicant appealed the Minister’s refusal of the applicant’s visa application to this Tribunal.

5. On 19 December 2017 this Tribunal received a copy of a new ‘Opinion’ (Form 884) from the Review Medical Officer of the Commonwealth (folio 122) which states the applicant Hang Chau Kwan “meets the health requirement (with and undertaking”: PIC 4005.

6. The Tribunal is satisfied that the Officer’s assessment dated 28 November 2017 is valid, in that it identifies the medical condition to which the Public Interest Criterion has been applied; specifies the form or level of the condition suffered by the applicant and has applied the statutory criteria by reference to a hypothetical person who suffers from the form or level of the condition. The Tribunal is satisfied that the Officer has applied the correct test and is bound to accept the medical opinion to be correct.

7. Given the above, and based on the opinion of the MOC, the applicant satisfies PIC 4005(1)(c) for the purposes of clause 143.225. Accordingly, the appropriate course is to remit the applicant’s visa application to the Minister for further consideration.

   
   
   
   
   Statement made on 07 February 2018 at 10:48am