Parjeet Singh (Migration)

[2021] AATA 3202

Parjeet Singh (Migration) [2021] AATA 3202 (2 August 2021)

Corrigendum

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Parjeet Singh
Mrs Paramjit Kaur

CASE NUMBER:  2101469

DIBP REFERENCE(S):  CLF2016/94349

MEMBER:Brendan Darcy

DATE OF DECISION:  2 August 2021

DATE CORRIGENDUM

SIGNED:3 September 2021

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

1. In paragraph 8 reference to the ‘second applicant’ should be ‘first named applicant’.

2. In paragraph 23 references to the ‘second named applicant’ should be to the ‘first named applicant’.

Brendan Darcy
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Parjeet Singh
Mrs Paramjit Kaur

CASE NUMBER:  2101469

HOME AFFAIRS REFERENCE(S):          CLF2016/94349

MEMBER:Brendan Darcy

DATE:2 August 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal does not have jurisdiction in relation to the first named applicant.

The Tribunal remits the application for Aged Parent (Residence) (Class BP) visas for reconsideration, with the direction that the second named applicant meets the following primary criteria for a Subclass 804 (Aged Parent) visa:

· PIC 4005(1)(a), (b) and (c) for the purposes of cl.804.225 of Schedule 2 to the Regulations.

Statement made on 2 August 2021 at 9:03am

CATCHWORDS

MIGRATION – Aged Parent (Residence) (Class BP) visa – Subclass 804 (Aged Parent) –first applicant passed away – no jurisdiction in relation to the first named applicant –  second applicant meets the health requirement – MOC opinion is not required–decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, r.2.25A, Schedule 2, cl 804.225, Schedule 4

CASES
Ramlu v MIMIA [2005] FMCA 1735

Robinson v MIMIA (2005) 148 FCR 182

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 Home Affairs on 3 February 2021 to refuse to grant the applicants Aged Parent (Residence) (Class BP) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 6 December 2016. The delegate refused to grant the visa on the basis that the first named applicant (now referred to as the applicant) did not satisfy cl.804.225 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 applicants were represented in relation to the review by their registered migration agent.

4. The Tribunal has assessed that it can reach a favourable decision based on the evidence before it and has proceed to make a decision without scheduling hearing.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   consideration of Claims and evidence

6. 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.

   First named applicant

7. The delegate refused to grant the first named applicant an Aged Parent visa on the basis an assessment of a Medical Officer of the Commonwealth (MOC) on 23 November 2020 did not meet the PIC 4005 health requirement. This followed an earlier adverse assessment by the MOC on 25 June 2020.

8. Since the applicants applied to have this refusal decision reviewed, the Tribunal received a death certificate on 9 July 2021. The death certificate indicated the second applicant passed away by natural causes in Endeavour Hills in the State of Victoria on 25 April 2021.  

9. Whether a statutory entitlement (such as that to merits review of a decision) survives, lapses or devolves to another person on the death of the claimant depends upon the language of the legislation under which the entitlement arises.[1] Generally speaking, where a statutory entitlement does not devolve upon another person on an applicant’s death, death will extinguish both the entitlement and the relevant decision maker’s power, including the power of a tribunal upon review.[2]

   [1] V120/00A v MIMA (2002) 116 FCR 576 at [53]. For example, reg 9.09 of the Federal Court Rules 2011 (Cth) provides that a cause of action in the Federal Court does not cease only because of the party’s death and that where a party’s interest or liability passes to another person during the proceeding by assignment, transmission, devolution or by any other means, the party or the person may apply to the Court for an order for the joinder of the person as a party or for the removal of the party however there is no equivalent provision in the Migration Act or Regulations in respect of Part 5 or Part 7 reviews.

   [2] V120/00A v MIMA (2002) 116 FCR 576 at [53].

10. In such circumstances, it is not possible for a review application in relation to the first named applicant to be proceed following his death as the Tribunal does not jurisdiction to consider this matter any further.

11. Accordingly, the Tribunal finds that it does not have jurisdiction in relation in the second named applicant.

    Second named applicant

    Is the second named applicant free from the relevant diseases or conditions (PIC 4005(1)(a), (b), (c))?

12. With regard to Subclass 804 visa applicants, the primary criteria must be satisfied by at least one member of a family unit. Therefore, it is possible to assess the second named applicant against the PIC 4005 criteria under primary criteria pursuant to 804.225 in the Regulations.

    Accordingly, it is not necessary to assess the second named applicant against the secondary criteria under Schedule 2 of the Regulations on which the delegate made an adverse finding, namely 804.321: The applicant is a member of the family unit of a person who, having satisfied the primary criteria.

13. Public interest criterion 4005(1)(a) and (b) require the applicant to be free from tuberculosis and 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.

14. Public interest criterion 4005(1)(c) requires the applicant be free from a disease or condition which would be likely to require health care or community services or which would meet the medical criteria for provision of a community service during the specified period; and  provision of the health care or community services (regardless of whether it will actually be used in connection with the applicant) would be likely to: result in a significant cost to the Australian community in the areas of health care and community services; or prejudice access of an Australian citizen or permanent resident to health care or community services.

15. In determining whether a person meets PIC 4005(1)(a), (b) or (c) r.2.25A requires the Tribunal to seek the opinion of a Medical Officer of the Commonwealth (MOC) unless: the application is for a temporary visa and there is no information known to Immigration to the effect that the person may not meet those requirements; or the application is for a permanent visa and made from a specified country and there is no information known to Immigration to the effect that the person may not meet those requirements.  Where an opinion of a MOC is required, the Tribunal must take it be correct: r.2.25A(3).

    Is a MOC opinion required?

16. As noted above, the Tribunal must take the MOC opinion as correct, but must first be satisfied the MOC has applied the correct test in forming the opinion: Robinson v MIMIA (2005) 148 FCR 182 and Ramlu v MIMIA [2005] FMCA 1735. That is, the opinion must identify the medical condition to which the public interest criterion has been applied, and the form or level of the condition suffered by the applicant, and the MOC must have applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition.

17. An officer of the Tribunal accessed the Department's ICSE records in respect of the second named applicant. The screenshot taken of this record at this time evidences that, on 24 November 2020, the said applicant had been recorded as 'meets' the health requirement such that it was recorded as 'finalised health requirement'.

18. The Tribunal notes the delegate did not request whether the provision of the health care or community services would likely to result in a significant cost to the Australian community in the areas of health care and community services in relation to the second named applicant. 

19. The evidence arising from the ISCE record is that the first named applicant had satisfied the requirements under PIC 4005(1)(a), (b) and (c). Had the second named applicant failed PIC 4005(a), a record of her having past or active tuberculosis would be available. There is no indication the first named applicant has any other serious disease detected in a medical examination, as required by PIC 4005(1)(b). 

20. There is no information before the Tribunal that the second named applicant does not meet PIC 4005(1)(a), or (b). On the basis of these findings, a MOC opinion is not required.

21. On the basis of the evidence before the Tribunal, the second named applicant satisfies PIC 4005(1)(a) and (b).

22. With no evidence to the contrary, the Tribunal is further satisfied that the PIC 4005(1)(c) is met.

    Conclusion

23. Having received information indicating the second named applicant is deceased, the Tribunal accordingly does not have jurisdiction in relation in the second named applicant.

24. With regard to Subclass 804 visa applicants, the primary criteria must be satisfied by at least one member of a family unit. Therefore, the second named applicant can be assessed under the primary criteria.

25. On the basis of the evidence before the Tribunal, the second named applicant satisfies Public Interest Criteria 4005(1)[(a) and (b) and (c) as part of the primary criteria: 804.225.

26. Given the findings above, the appropriate course is for the Tribunal to remit the matter in relation to the second named applicant to the Minister for reconsideration of the remaining criteria for the visa.

    decision

27. The Tribunal does not have jurisdiction in relation to the first named applicant.

28. The Tribunal remits the application for Aged Parent (Residence) (Class BP) visas for reconsideration, with the direction that the second named applicant meets the following primary criteria for a Subclass 804 (Aged Parent) visa:

    ·PIC 4005(1)(a), (b) and (c) for the purposes of cl.804.225 of Schedule 2 to the Regulations.

    Brendan Darcy
    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.