Muradi (Migration)

[2018] AATA 652

Muradi (Migration) [2018] AATA 652 (22 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Hassan Khalis Muradi

VISA APPLICANTS:  Ms Ozra Muradi
Ms Razia Muradi
Ms Zainab Muradi
Mr Qayum Muradi
Ms Najiba Muradi

CASE NUMBER:  1619358

DIBP REFERENCE(S):  OSF2013/021196

COUNTRY OF REFERENCE:                  Afghanistan

MEMBER:Margie Bourke

DATE:22 January 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the five visa applicants meet the following criteria for a Subclass 309 (Spouse (Provisional)) visa:

·PIC 4007(1) for the purposes of cl.309.323 of Schedule 2 to the Regulations.

Statement made on 22 January 2018 at 10:28am

CATCHWORDS
Migration – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – MOC opinion – Deceased applicant

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cl 309.323, Schedule 4 PIC 4007(1)

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 6 November 2016 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 23 June 2013. The delegate refused to grant the visa as the first named visa applicant (now referred to as the visa applicant) did not satisfy cl.309.323 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4007 of Schedule 4 to the Regulations was not met.

3. The tribunal has considered the matters in the Department’s decision record dated 6 November 2016.  The tribunal has considered information provided to it subsequent to the Department’s decision record. Based on the information available to it, the tribunal has decided it can make a decision favourable to the applicants without proceeding to a hearing, pursuant to s.360(2) of the Act.  The following are the 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 applicants meets Public Interest Criterion (PIC) 4007 as required by the criteria for the grant of the visa. Public Interest Criterion 4007, as it applies to this case, is extracted in the attachment to this decision. It requires the visa applicants, in certain circumstances, to undergo medical assessment, and to be free of certain diseases or conditions that may impact on the community. This last requirement may be waived in certain circumstances.

5. In this case the Medical Officer of the Commonwealth was of the opinion that a sixth visa applicant, [Miss A], born in [year], did not meet PIC 4007(1)(c)(ii)(A) because she was profoundly disabled with [a] permanent condition, and the condition was likely to require state and commonwealth disability services and special educational services, and likely to result in significant cost to the Australian community estimated at in excess of $2.6million.

6. The tribunal has been provided with evidence that the visa applicant [Miss A] died on [date].  The tribunal has considered the submission from the representative, the certificate from [an] Association and relevant photographs.  The tribunal is satisfied that the visa applicant [Miss A] has died.

7. The review of the decision of the application for the visa in relation to the visa applicant [Miss A] is not proceeding.

8. There is no evidence before the tribunal that the remaining five visa applicants do not meet the requirements of PIC 4007.  The tribunal has noted the delegate recorded in the decision record dated [in] November 2016 that the review applicant and the primary visa applicant are a couple who have been assessed as being in a genuine and ongoing relationship.  The tribunal also notes the delegate referred the failure of [Miss A] not meeting the requirements of PIC 4007, as the reason the primary visa applicant and all other secondary visa applicants fail to meet the criteria for the grant of the visa.

9. Following the death of the child visa applicant [Miss A], there is no evidence before the tribunal that the remaining five visa applicants do not meet the requirements for the grant of the visa.

10. Given the findings above, the appropriate course is to remit the applications for the visa to the Minister to consider the remaining criteria for the visa.

    DECISION

11. The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the five visa applicants meet the following criteria for a Subclass 309 (Spouse (Provisional)) visa:

    ·PIC 4007(1) for the purposes of cl.309.323 of Schedule 2 to the Regulations.

    Margie Bourke

    
    

    Member

    ATTACHMENT

    Migration Regulations 1994

    Schedule 4

    4007(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)      subject to subclause (2) — 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 (1A); 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.

    (1A)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.

    (1B)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 (1A)(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.

    (2)The Minister may waive the requirements of paragraph (1)(c) if.

    (a)      the applicant satisfies all other criteria for the grant of the visa applied for; and

    (b)     the Minister is satisfied that the granting of the visa would be unlikely to result in:

    (i)undue cost to the Australian community; or

    (ii)undue prejudice to the access to health care or community services of an Australian citizen or permanent resident.