Malhotra (Migration)

This matter concerned an application for an Aged Parent (Residence) (Class BP) visa (Subclass 804) by Chander Kanta Malhotra. The applicant sought to satisfy the health criteria for the visa, which she acknowledged she could not meet due to advanced retinitis pigmentosa resulting in visual impairment. The applicant had been granted a Visitor (Medical Treatment) (Class UB) visa (Subclass 602) which allowed her to remain in Australia until 2031 but did not permit travel. The applicant requested that the Tribunal refer her case to the Minister for consideration under section 351 of the Migration Act 1958, seeking Ministerial intervention to allow for a substituted visa with travel rights, primarily to visit her home country for what she believed might be the last time. The decision was made by Meredith Jackson, a Member of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the requirements for an Aged Parent (Residence) (Class BP) visa, specifically concerning the health criteria outlined in Public Interest Criterion (PIC) 4005 and clause 804.225 of Schedule 2 of the Migration Regulations 1994. A secondary issue was whether the Tribunal should refer the applicant's case to the Minister for discretionary intervention under section 351 of the Migration Act 1958, given the applicant's circumstances, including her age, health condition, and desire to visit family overseas.

The Tribunal accepted the applicant's concession that she did not meet PIC 4005 and therefore could not satisfy clause 804.225 of the Regulations for a permanent visa. The Tribunal noted that while the applicant was the aged parent of a settled Australian citizen, her failure to meet the health requirements was determinative. Despite acknowledging the applicant's request for Ministerial intervention and the stated reasons for it, the Tribunal ultimately affirmed the decision not to grant the visa. However, the Tribunal did refer the matter to the Department for consideration by the Minister, having considered the relevant Ministerial guidelines.