Maharaj (Migration)

[2024] AATA 75

Maharaj (Migration) [2024] AATA 75 (9 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Denish Danny Maharaj

VISA APPLICANT:  Ms Uma Devi Narayan

REPRESENTATIVE:  Mr Nigel James Dobbie

CASE NUMBER:  2310176

HOME AFFAIRS REFERENCE(S):          OSF2014/084603

MEMBER:Brendan Darcy

DATE:9 January 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Contributory Parent (Migrant) (Class CA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 143 (Contributory Parent) visa:

·cl 143.230 of Schedule 2 to the Regulations.

Statement made on 09 January 2024 at 2:50pm

CATCHWORDS

MIGRATION – Contributory Parent (Migrant) (Class CA) visa – Subclass 143 (Contributory Parent) – health requirement – medical assessment for non-migrating spouse – applicant’s spouse deceased member of the family unit – decision under review remitted 

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cls 143.225, 143.230; Schedule 4; Public Interest Criteria 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 and Border Protection on 4 July 2016 to refuse to grant the visa applicant a Contributory Parent (Migrant) (Class CA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 12 March 2014. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 143.225 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.

3. The review applicant was represented in relation to the review.

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background

5. On 12 March 2014, the visa applicant lodged a Class CA Subclass 143 Contributory Parent visa. The visa applicant was born on 1 November 1953 and is a citizen of the Dominion of Canada (Canada). The sponsoring relative of this visa is the review applicant.

6. At the time of application, the applicant’s spouse was Deo Narayan born on 20 November 1951. The application for the visa indicated that the applicant’s spouse was a non-migrating relative.

7. In August 2014, the Department required in writing that documentation was required to advance the Contributory Parent visa application, including a medical examination report for both the applicant and her non-migrating spouse. (The applicant was not the holder of a substituted Subclass 600 visa at the time of applicant, and therefore, all members of the family unit of the applicant were required to meet the health requirements outlined in the Public Interest Criterion 4005.)

8. On 10 October 2014, a Medical Officer of the Commonwealth (MOC) assess the applicant’s spouse as ‘not meeting the health requirement’.

9. In February 2016, the applicant was invited to comment about this and provided an opportunity to provide further medical information. In May 2016, the Department was advised it required more time to provide a written submission in response to the invitation to comment, noting that the applicant’s spouse had no intention to migrate to Australia and that it was unreasonable to insist on the health requirement being applicable to the non-migrating relatives of the spouse.

10. On 25 May 2016, the applicant’s then representative provided a legal submission which argued that no addition medical information was to be forwarded as the spouse of the applicant was not in a physical state to undergo further assessment. Relevantly, the representative raised with the delegate that the operation of regulation 143.230(1)(b) was not applicable.

11. On 4 July 2016, a delegate acting on behalf of the Minister refused to grant the visa applicant a Subclass 143 visa.

12. On 11 July 2023, the Tribunal received an application to review the decision to refuse Subclass 143 visa, with the decision record attached. On the same day, the Tribunal received an explanation as to the reasons the applicant was not lodged within the prescribed time limits prepared by the applicant’s newly appointed representative.  In short, it argued that the notification of the refusal decision back in July 2016 was defective as it had incorrectly and/or confusingly indicated that the period of time to seek review was 70 days from when the visa applicant is taken to have received the notification of the refusal decision, when in fact it was 21 days after the applicant is taken to have received the letter.

13. In October 2023, the Tribunal assessed the application for review was valid.

14. On the Tribunal file is a copy of a death certificate pertaining to the non-migrating spouse, indicating that his date of death was 19 May 2018. The death certificate was issued by the relevant authorities in the Canadian Province of British Columbia on 23 May 2018.

15. On 20 November 2023, the Tribunal wrote to the applicant’s representative to obtain an updated opinion from a MOC to demonstrate that the non-migrating spouse meets the health criterion set out in Public Interest Criteria 4005 and 4007. 

16. On 23 November 2023, the applicant’s representative requested the Tribunal to proceed with a decision on the papers on the basis of the applicant’s spouse is deceased.

    Finding

17. In this decision, the applicable subclause of clause143.230 is item (1)(b) as the applicant was not the holder of a substituted Subclass 600 visa at the time of application.

18. The Tribunal accepts there is evidence that the applicant’s non-migrating spouse failed to meet PIC 4005 according to an opinion of a MOC from 2014.

19. At the time of application, the non-migrating spouse was a member of the same family unit for whom a MOC opinion was required, as he was at the time of the delegate’s decision. In this regard, the delegate did not err in finding the application did not meet the criteria under 4005(1) for the purposes of cl 143.230(1)(b). 

20. However, the non-migrating spouse passed away in 2018 for which there is compelling evidence in the form of a death certificate issued in Canada.

21. The operation of regulation 143.230 is a time of decision assessment. The question before the Tribunal is not whether each member of the same family unit must satisfy the relevant public interest criterion, unless it is unreasonable to require the person to undergo the assessment for that criterion under PIC 4005, pursuant to Item (1)(b) of the relevant clause.

22. The critical issue is whether the non-migrating spouse was a member of the family unit of the applicant at the time of decision.

    As the applicant’s spouse expired in 2018, that non-migrating relative cannot be considered a member of the same family of the applicant at the time of this decision.

23. Whether the applicant’s deceased spouse complied with public health criteria under Item 1(a) and (b) of clause 143.230 is therefore not enlivened.

24. As the deceased spouse of the applicant appears to be the only dependent relative in this visa application, clause 143.230 is met.

25. Based on this information, no scheduled hearing was required to reach a favourable decision in this matter.

26. 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

27. The Tribunal remits the application for a Contributory Parent (Migrant) (Class CA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 143 (Contributory Parent) visa:

    ·cl 143.230 of Schedule 2 to the Regulations.

    Brendan Darcy
    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.