Muflih (Migration)

[2024] AATA 3991

Muflih (Migration) [2024] AATA 3991 (17 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Basma Muflih

VISA APPLICANT:  Mrs Fatima Kh M Minawi

REPRESENTATIVE:  Ms Joumana El Halwe (MARN: 1388161)

CASE NUMBER:  2421088

HOME AFFAIRS REFERENCE(S):          BCC2023/2621658

MEMBER:Moira Brophy

DATE:17 September 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Sponsored Parent (Temporary) (Class GH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 870 - Sponsored Parent (Temporary) visa:

·PIC 4005(1)(c )(ii)(A) for the purposes of cl 870.228 of Schedule 2 to the Regulations.

Statement made on 17 September 2024 at 1:35pm

CATCHWORDS

MIGRATION ­– Sponsored Parent (Temporary) visa – subclass 870 visa –– Tribunal was provided with a further MOC opinion – applicant met the health requirements in PIC 4005 – functional impairment as less severe than had been previously determined – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 870.228, Schedule 4, Public Interest Criterion (‘PIC’) 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 Home Affairs on 12 June 2024 to refuse to grant the visa applicant a Sponsored Parent (Temporary) (Class GH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 2 May 2023. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 870.228 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. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The issue in this review is whether the 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 the applicant, in certain circumstances, to undergo medical assessment, and to be free of certain diseases or conditions that may impact on the community. On 12 June 2024 the applicant in this case was found to not meet the requirements for the grant of the visa because she was not able to meet PIC 4005.

5. On 18 August 2023 the Medical Officer of the Commonwealth found that the visa applicant did not meet the health requirement PIC 4005. The MOC assessed the visa applicant against PIC 4005 for a period of 3 years. The MOC found that applicant had a moderate functional impairment due to gait imbalance, tremor and poor eyesight. The MOC found the condition was likely to be permanent. The MOC found that a hypothetical person with the same condition of a similar severity would likely require health and/or community care services in the form of a home care package. The MOC considered that a hypothetical person with this disease or condition, at the same severity as the visa applicant, would be likely to require health care or community services during the period of 3 years specified. Provision of these services was likely to result in a to the Australian community in the areas of health care and/or community services.

6. On 21 May 2024 the delegate invited the visa applicant to comment on the adverse MOC, and to provide any supporting evidence the MOC was incorrect. A statement by the applicant was provided but no medical evidence was provided by the applicant in response. The delegate determined on 12 June 2024 that in the absence of any further medical evidence no reassessment by MOC was required and refused the application for failing to meet PIC 4005.

7. On 22 July 2024 the Tribunal wrote to the review applicant, noting the delegate had refused to grant the visa applicant a visa as she did not meet the relevant health criterion. The Tribunal invited the visa applicant to obtain a further opinion from the MOC.

8. On 19 August 2024 the Tribunal was provided with a further MOC opinion stating the applicant met the health requirements in PIC 4005 for a period of three years noting the visa applied for was a temporary visa and the functional impairment as less severe than had been previously determined.

9. For these reasons the requirements in PIC 4005(1)(c)(ii)(A) are met.

10. 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

11. The Tribunal remits the application for a Sponsored Parent (Temporary) (Class GH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 870 - Sponsored Parent (Temporary) visa:

    ·PIC 4005(1)(c )(ii)(A) for the purposes of cl 870.228 of Schedule 2 to the Regulations.

    Moira Brophy
    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.