Perveen (Migration) - [2024] AATA 673

Perveen (Migration) [2024] AATA 673 (24 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Khalida Perveen
CASE NUMBER:  2103681
HOME AFFAIRS REFERENCE(S):          BCC2020/1901578
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Peter Emmerton
DATE:24 January 2024
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal remits the application for a Sponsored Parent (Temporary) (Class GH) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 870 - Sponsored Parent (Temporary) visa:
·PIC 4007(2)(b) for the purposes of cl 870.228(3) of Schedule 2 to the Regulations.

Statement made on 31 January 2024 at 12:01pm
CATCHWORDS
MIGRATION – Sponsored Parent (Temporary) visa – subclass 870 visa –– applicant does not satisfy PIC 4007 – valid MOC opinion – a substantial potential cost to the Australian community associated with appropriately supporting the applicant – family’s capacity to financially cover any of medical costs – there are strong compassionate considerations affecting Australian citizens – PIC 4007(1)(c) may be waived subject to the applicant satisfying all other requirements for the visa – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 65, 360
Migration Regulations 1994, r 2.25, Schedule 2, cl 870.228, Schedule 4, Public Interest Criterion (‘PIC’) 4007

CASES
Bui v MIMA (1999) 85 FCR 134
Ramlu v MIMIA [2005] FMCA 1735
Robinson v MIMIA (2005) 148 FCR 182
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 March 2021 to refuse to grant the applicant a Sponsored Parent (Temporary) (Class GH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 14 July 2020. The delegate refused to grant the visa as the applicant did not satisfy cl 870.228(3) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4007 of Schedule 4 to the Regulations was not met.
The applicant appeared before the Tribunal on 31 January 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Naila Khan, the visa applicant’s daughter and Mr Imran Kahn the visa applicant’s son.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has read and carefully considered all the evidence previously provided to the delegate and the Department.
The Tribunal has read and carefully considered all the evidence provided to it as detailed below.
- New MOC Outcome 11 January 2024
- Letters of Naila Khan, 19 January 2024
- Statutory declaration of Naila Khan, 22 December 2023
- ING Loan Statement, N Khan, 1 January 2023 to 31 December 2023 & Transactions
- N A Khan, Third Quarter Rates, City of Marion 2023/2024
- Naila Khan Income Statements 2022-2023 & Super Fund Details
- N A Khan Earnings Advice, Department of Education SA 23 November & December 2023
- Letter of Rachel Turnbull, Trott Park Kindergarten,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Perveen (Migration)

Details

AGLC: Perveen (Migration) [2024] AATA 673
Case: [2024] AATA 673
Decision Date: 24 January 2024

CaseChat Overview and Summary

This matter concerned an application for a Sponsored Parent (Temporary) visa (subclass 870). The applicant was assessed by a Medical Officer of the Commonwealth (MOC) as having moderate consequences of a stroke. The primary dispute before the Tribunal was whether the applicant satisfied Public Interest Criterion (PIC) 4007, which requires applicants to be free from certain diseases or conditions that could impact the Australian community.

The legal issues before the Tribunal were whether the applicant met the requirements of PIC 4007(1)(a), (b), and (c). Specifically, the Tribunal had to determine if the applicant was free from tuberculosis and any disease or condition that posed a threat to public health or the Australian community, as required by clauses (a) and (b). Furthermore, the Tribunal had to consider whether the applicant was free from a disease or condition that would likely require significant health care or community services, the provision of which would result in substantial cost to the Australian community or prejudice access for Australian citizens or permanent residents, as stipulated in clause (c).

The Tribunal found that the applicant satisfied PIC 4007(1)(a) and (b), being free from tuberculosis and any condition posing a threat to public health or the Australian community. However, the MOC opinion indicated a substantial potential cost to the Australian community associated with supporting the applicant, suggesting a potential failure to meet PIC 4007(1)(c). The Tribunal noted that PIC 4007(1)(c) could be waived if the applicant met all other visa requirements and the granting of the visa would not result in undue cost or prejudice to Australian citizens or permanent residents. Given the evidence presented, including financial capacity of the applicant's family and compassionate considerations, the Tribunal concluded that the matter should be remitted for reconsideration.

The Tribunal remitted the application for a Sponsored Parent (Temporary) (Class GH) visa for reconsideration, with a direction that the applicant meets PIC 4007(2)(b) for the purposes of clause 870.228(3) of Schedule 2 to the Regulations. This indicates that the waiver provision for PIC 4007(1)(c) was considered applicable in this instance.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The Tribunal has read and carefully considered all the evidence previously provided to the delegate and the Department. The Tribunal has read and carefully considered all the evidence provided to it as detailed below. New MOC Outcome 11 January 2024 Letters of Naila Khan, 19 January 2024 Statutory declaration of Naila Khan, 22 December 2023 ING Loan Statement, N Khan, 1 January 2023 to 31 December 2023 & Transactions N A Khan, Third Quarter Rates, City of Marion 2023/2024 Naila Khan Income Statements 2022-2023 & Super Fund Details N A Khan Earnings Advice, Department of Education SA 23 November & December 2023 Letter of Rachel Turnbull, Trott Park Kindergarten, Dept of Education, undated Letter of Maureen O’Donnell, Trott Park Kindergarten Dept of Education, undated Letter of Tursinay Muhammad, undated MOC Outcome 20 October 2020 Letter of Dr Alexander Rodgers, SA Group of Specialists, 21 September 2023 Submission letter of Naila Khan, 21 December 2023 Copy of Naila Khan Stat Dec SA Health letter, Peter Litwin, General Medical Registrar, Royal Adelaide Hospital, 14 October 2022 Letter of Dr Tim Bright, Flinders Medical Centre, 23 December 2020 Letter of Lawrence Kim, Radiation Oncologist, 17 December 2020 Letter of Carol Jonas, Patient Accounts Officer, Genesis Care, 14 October 2020 & Tax Receipts Letter of Dr Niladri Saha, Eyemedics, May 5 2022 Kingswood Eye Centre Referral, printed 17 November 2022 Adelaide Day Surgery, Informed Financial Consent BUPA Overseas Visitor Cover 28 December 2023 Diagnosis of Dr Tim Slimming, Orthopaedics SA, 3 October 2023 Additional family photographs, 29 January 2024 The issue in this review is whether the visa applicant 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 applicant, 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. The applicant in this case was assessed by the MOC to have the Moderate Consequences of Stroke. Is the applicant free from the relevant diseases or conditions (PIC 4007(1)(a), (b), (c))? Clauses 4007(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. The Tribunal is satisfied that the applicants is 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. Therefore, they meet the requirements of PIC 4007(1)(a) and (b). Clause 4007(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.

Decision

Reasons for decision

Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for the visa.DECISION The Tribunal remits the application for a Sponsored Parent (Temporary) (Class GH) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 870 - Sponsored Parent (Temporary) visa:·PIC 4007(2)(b) for the purposes of cl 870.228(3) of Schedule 2 to the Regulations.Peter EmmertonMemberATTACHMENTMigration Regulations 1994Schedule 44007(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.

Ratio Decidendi

Legal Principle Established

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