Qian (Migration)

[2019] AATA 4604

Qian (Migration) [2019] AATA 4604 (20 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Jingda Qian

VISA APPLICANTS:  Mr Hongxing Qian
Mrs Changmei Lu
Mr Jingcheng Qian

CASE NUMBER:  1912733

DIBP REFERENCE(S):  OSF2014/086540

MEMBER:Kira Raif

DATE:20 September 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for Contributory Parent (Migrant) (Class CA) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 143 (Contributory Parent) visa:

·PIC 4005(1)(c) for the purposes of cl.143.225 of Schedule 2 to the Regulations.

Statement made on 20 September 2019 at 2:26pm

CATCHWORDS
MIGRATION – Family – Contributory Parent (Migrant) (Class CA) visa – Subclass 143 – free of certain diseases or conditions that may impact community – health requirement met – remaining visa applicants cleared – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.25, Schedule 2, cl 143.225, Schedule 4, Public Interest Criterion 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 23 April 2019 to refuse to grant the visa applicants Contributory Parent (Migrant) (Class CA) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 7 May 2014. 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.143.225 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. No hearing was held in this case as the Tribunal has formed the view that it was able to make a favourable decision on the material before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   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)(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.

6. 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. For specified temporary visas, certain specified health care and community service are excluded from this consideration: PIC 4005(3).

7. 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).

   Are the applicants free from the relevant diseases or conditions (PIC 4005(1)(a), (b), (c))?

8. There is no evidence that any of the visa applicants were holders of a substituted Subclass 600 visas at the time of the application. The Tribunal finds that they are required to meet PIC 4005.

9. The primary decision record indicates that in September 2018 the delegate wrote to the visa applicants inviting them to undertake health examinations. There is no evidence that they had done so. As a result, the delegate was not satisfied that the visa applicants met PIC 4005.

10. In July 2019 the Tribunal received advice from the Department that the first named visa applicant met the health requirement (a copy of the MOC opinion was provided) and the remaining visa applicants were recommended cleared or auto cleared. There is nothing before the Tribunal to indicate that the assessments were invalid.

11. Having regard to that information, the Tribunal finds that the visa applicant satisfies public interest criterion 4005(1)(c) for the purpose of cl. 143.225.

    Conclusion

12. Given the findings above, the appropriate course is for the Tribunal to remit the matter to the Minister for reconsideration of the remaining criteria for the visa.

    DECISION

13. The Tribunal remits the application for Contributory Parent (Migrant) (Class CA) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 143 (Contributory Parent) visa:

    ·PIC 4005(1)(c) for the purposes of cl.143.225 of Schedule 2 to the Regulations.

    Kira Raif
    Senior Member