Pito Martins Jorge (Migration)

[2017] AATA 2300

Pito Martins Jorge (Migration) [2017] AATA 2300 (16 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Antonio Pito Martins Jorge
Mrs Maria Da Assuncao Pastora Martins

CASE NUMBER:  1517035

DIBP REFERENCE(S):  clf2014/127554

MEMBER:Kira Raif

DATE:16 November 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Aged Parent (Residence) (Class BP) visas.

Statement made on 16 November 2017 at 2:53pm

CATCHWORDS

Migration – Aged Parent (Residence)(Class BP) visa – Applicants were not the holders of the substituted subclass 600 visas – Health checks –  Public Interest Criterion – Second named applicant failed the health requirements

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, rr 2.25A, 2.25A(3), Schedule 1 Item 1124A, Schedule 2 cls 804.225, 804.226, Schedule 4 cls 4005, 4005(1)(a)-(c)

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 24 November 2015 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 are nationals of Portugal. They applied for the visas on 8 October 2014. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.804.226 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the second named applicant did not meet the health criteria in Public Interest Criterion (‘PIC’) 4005 of Schedule 4 to the Regulations. The applicants seek review of the delegate’s decision.

3. The applicants’ representatives (family members) appeared before the Tribunal on behalf of the applicants on 16 November 2017 to give evidence and present arguments. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. The issue in this review is whether the visa applicants meet Public Interest Criterion (PIC) 4005 as required by the criteria for the grant of the visa. Public Interest Criterion 4005 requires the applicants, in certain circumstances, to undergo medical assessment, and to be free of certain diseases or conditions that may impact on the community.

5. 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.

6. 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 the applicant free from the relevant diseases or conditions (PIC 4005(1)(a), (b), (c))?

7. There is no evidence before the Tribunal to indicate that the visa applicants were the holders of substituted Subclass 600 visas at the time of the application. The Tribunal finds that the visa applicants were not the holders of the substituted subclass 600 visas and must meet the PIC 4005.

8. The second named applicant is the spouse of the primary visa applicant and was included in the application. The Tribunal is satisfied that she is the spouse and a member of the family unit of the primary visa applicant.

9. The applicants provided to the Tribunal a copy of the primary decision record. It indicates that the applicants were requested to undertake medical examinations and while the first named applicant passed the health checks, the second named applicant did not. The Tribunal wrote to the applicants on 12 September 2017 giving them an opportunity to obtain a further medical opinion but the applicants decided not to do so. The oral evidence to the Tribunal is that the applicant’s health has deteriorated further and she would be unable to meet the health requirements.

10. Having regard to the information contained in the primary decision, the Tribunal finds that the MOC opinion was obtained and the opinion is that the second named applicant does not meet the health requirements. The Tribunal is not satisfied the second named applicant meets PIC 4005. The Tribunal is not satisfied the applicant meets cl. 804.226 and, for the same reason, the second named applicant cannot meet the primary criteria in cl. 804.225.

    Conclusion

11. As the second named applicant has not satisfied the requirements of PIC 4005, the Tribunal must affirm the decision under review.

    DECISION

12. The Tribunal affirms the decision not to grant the applicants Aged Parent (Residence) (Class BP) visas.

    Kira Raif
    Senior Member