Mills (Migration)

[2018] AATA 1579

Mills (Migration) [2018] AATA 1579 (6 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Olga Viktorovna Mills

VISA APPLICANTS:  Mrs Ekaterina Blagodareva (the Primary applicant)
Mr Viktor Blagodarev (the Dependent applicant)

CASE NUMBER:  1710769

DIBP REFERENCE(S):  2007/069686 OSF2007/069686

MEMBER:Ian Garnham

DATE:6 April 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for the Primary applicant’s Parent (Migrant) (Class AX) visa for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 103 (Parent) visa:

·PIC 4005(1) for the purposes of cl.103.227(1)(a) of Schedule 2 to the Regulations.

and

DECISION:The Tribunal affirms the decision not to grant the Dependent visa applicant a Parent (Migrant) (Class AX) visa.

Statement made on 06 April 2018 at 1:35pm

CATCHWORDS

Migration – Parent (Class AX) visa – Subclass 103 (Migrant) visa – Health Public Interest Criterion 4005 not met – Adverse MOC opinion for dependent visa applicant – Dependent visa applicant deceased

LEGISLATION

Migration Act 1958, s. 65

Migration Regulations 1994, Schedule 2, cl.103.227, Schedule 4

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 15 March 2017 to refuse to grant the visa applicants Parent (Migrant) (Class AX) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 6 June 2007. The delegate refused to grant the visas on the basis that the first named visa applicant did not satisfy cl.103.227 of Schedule 2 to the Migration Regulations 1994 (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, who is a daughter of the visa applicants appeared before the Tribunal on 20 March 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s sister, Maria Viktorouna Nussbaum.

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration in respect to the first named applicant and the decision under review should be affirmed with respect to the 2^nd named applicant.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background & Legislation:

5. Initially the issue in this review was whether the Dependent visa applicant meets Public Interest Criterion (PIC) 4005 as required by the criteria for the grant of the visa. Public Interest Criterion 4005, as it applies to this case, is extracted in the attachment to this decision. It requires an applicant, in certain circumstances, to undergo medical assessment, and to be free of certain diseases or conditions that may impact on the community.

6. The applicants were in a spousal relationship (they are therefore members of the same family unit) and jointly applied for the subclass 103 visas on 6 June 2007. 

7. As the application is for permanent visas the criteria set out at cl.103.227(1) requires that, at the time of decision, both applicants satisfy PIC 4005 for the application to be successful.

   103.227 

   (1)  Each member of the family unit of the applicant who is an applicant for a Subclass 103 visa is a person who:

   (a)  satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4009, 4010 and 4020; and

   (aa)  if the person had turned 18 at the time of application, satisfies public interest criterion 4019; and

   (b)  if he or she has previously been in Australia, satisfies special return criteria 5001, 5002 and 5010.

8. On 20 May 2015 the applicants were requested by the Department (DIBP) to undergo medical examinations to satisfy PIC 4005.

9. The Primary visa applicant was found to satisfy PIC 4005.  However, her husband, the Dependent visa applicant failed the medical examination as set out in an opinion of a Medical Officer of the Commonwealth (MOC) dated 28/07/15.[1]

   [1] At F: 210 (DIBP)

10. On 15 April 2016 DIBP granted an extension of 3 months to the applicants for further medical information to be provided.

11. On 15 March 2017 DIBP refused the visa application because the Dependent visa applicant did not meet cl.103.227(1)(a).

12. At the hearing, the review applicant advised the tribunal that the Dependent visa applicant’s death was imminent and the review applicant and the witness were traveling to Russia the next day to attend his death. 

13. On 3 April 2018 the review applicant provided a death certificate for the Dependent visa applicant dated 29 March 2018.[2]

    Consideration:

    [2] At FF: 39-40 (AAT)

14. I am satisfied that the Dependent visa applicant is deceased. He therefore cannot meet cl.103.227(1)(a) and I affirm the decision to refuse his subclass 103 visa.

15. In an undated submission to the tribunal, made by the Primary visa applicant, it is made clear to the tribunal that she wishes her subclass 103 visa application to continue upon the death of her husband.[3]

    [3] At FF:42-43 (AAT)

16. The Primary visa applicant is now the sole applicant of her family unit and therefore her application now meets cl.103.227(1)(a).

17. 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 Primary visa applicant’s visa application.

    DECISION

    The Tribunal remits the application for Parent (Migrant) (Class AX) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a subclass 103 (Parent) visa:

    ·PIC 4005(1) for the purposes of cl.103.227(1)(a) of Schedule 2 to the Regulations.

    and

    DECISION:The Tribunal affirms the decision not to grant the Dependent visa applicant a Parent (Migrant) (Class AX) visa.

    Ian Garnham
    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)Sub-subparagraph (1) (c) (ii) (A) does not apply if:

    (a)the applicant would not be eligible for the provision of the health care or community services; and

    (b)the ineligibility would be due to the temporary visa for which the applicant is applying being of a particular subclass; and

    (c)the subclass is not specified by the Minister in an instrument in writing made under subparagraph (2) (b) (ii).