Perimal-Lewis (Migration)

[2018] AATA 2352

Perimal-Lewis (Migration) [2018] AATA 2352 (28 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Dr Lua Perimal-Lewis

VISA APPLICANTS:  Mr Perimal Gengappan
Mrs Gunalechumi Gunasegaran

CASE NUMBER:  1708216

DIBP REFERENCE(S):  2008/061564

MEMBER:Kate Millar

DATE:28 June 2018

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for Parent (Migrant) (Class AX) visas for reconsideration, with the direction that Mrs Gunalechumi Ginasegaran meets the following criteria for a Subclass 103 (Parent) visa:

·PIC 4005 for the purposes of cl.103.227 of Schedule 2 to the Regulations.

Statement made on 28 June 2018 at 10:08am

CATCHWORDS
Migration – Parent (Migrant) (Class AX) – Subclass 103 (Parent) – Second named applicant –Medical condition – Further medical opinion sought – Health requirements met – Decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cls 103.224, 103.227 Schedule 4 Criteria 4005

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 9 February 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 27 February 2008. The delegate refused to grant the visa on the basis that the first named visa applicant (now referred to as the visa applicant) did not satisfy cl.103.224 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. Clause 103.224 requires Mr Gengappan to meet PIC 4005. In issue is whether Mrs Gunasegaran meets PIC 4005. There is a requirement in cl.103.227 that each member of the family unit of a person wh9o is the primary applicant for the visa meet PIC 4005. If Mrs Gunasegaran does not meet PIC 4005, Mr Gengappan will not meet cl.103.227.

4. In these circumstances, and as there is nothing before me to indicate Mr Gengappen does not meet PIC 4005, I have considered whether the health requirements are met by Mrs Gunasegaran for the purposes of cl.103.227. 

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.

7. Mrs Gunasegaran has a diagnosis of breast cancer.  On 18 January 2017 a Medical Officer of the Commonwealth found she did not meet the health requirements for the grant of the visa.

8. Since then, Mrs Gunasegaran has sought another opinion of a Medical Officer of the Commonwealth, and on 15 June 2018, a Medical Officer of the Commonwealth reported she has been assessed against the requirements of PIC 4005 and was found to meet the health requirements for a permanent stay in Australia. 

9. On the basis of this opinion, which the Tribunal must take to be correct, Mrs Gunasegaran satisfies PIC 4005.  The appropriate course is for the Tribunal to remit the matter to the Minister for reconsideration of the remaining criteria for the visa.

   DECISION

10. 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 for the purposes of cl.103.227 of Schedule 2 to the Regulations.

    Kate Millar
    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).