Maharaj (Migration)

This matter concerned a Subclass 143 Contributory Parent visa application lodged by a Canadian citizen. The applicant's spouse, who was a non-migrating member of the family unit, was assessed by a Medical Officer of the Commonwealth as not meeting the health requirement. The applicant argued that the health requirement was unreasonable for a non-migrating spouse, particularly given his physical state. The delegate refused the visa, and the applicant sought review by the Tribunal.

The Tribunal was required to determine whether the health requirement, as applied to the applicant's non-migrating spouse, was correctly assessed and whether the refusal decision was valid. A key factual development was the subsequent death of the applicant's spouse in 2018, which occurred after the initial refusal but before the Tribunal's hearing.

The Tribunal reasoned that the health requirement, as outlined in Public Interest Criterion 4005 of the Migration Regulations 1994, applied to all members of the family unit of the visa applicant, even if they were not migrating. However, the Tribunal noted that the death of the non-migrating spouse significantly altered the circumstances. Given this development, the Tribunal concluded that the matter should be remitted to the Minister for reconsideration of the remaining visa criteria, with a direction that the visa applicant met the criteria under cl 143.230 of Schedule 2 to the Regulations.