Qin (Migration)

[2018] AATA 740

Qin (Migration) [2018] AATA 740 (15 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss Mengmei Qin

VISA APPLICANTS:  Mrs Liming Qin
Master Zimeng Zhang

CASE NUMBER:  1701583

DIBP REFERENCE(S):  OSF2013/083829

MEMBER:Hugh Sanderson

DATE:15 March 2018

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 for the purposes of cl.143.230 of Schedule 2 to the Regulations.

Statement made on 15 March 2018 at 2:00pm

CATCHWORDS
Migration – Contributory Parent (Migrant) (Class CA) visa – Subclass 143 (Contributory Parent) – Requirement to meet health criteria – MOC previously assessed member of family unit as failing to meet health criteria – Hepatitis B - Subsequent MOC opinion assessed member of family unit as meeting health criteria with an undertaking – Undertaking to stay in Australia temporarily

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 2.25A, Schedule 2, cl 143.230, Schedule 4, PIC 4005

CASES
Robinson v MIMIA (2005) 148 FCR 182
Ramlu v MIMIA [2005] FMCA 1735

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 22 November 2016 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 applicants applied for the visas on 20 June 2013. 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.143.230 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 for members of her family unit who were not applying for the visa.

   Background

3. The review applicant was born in China and is a citizen of China. She was granted a subclass 885 Skilled Independent visa in 2012 and now has the right to reside permanently in Australia. She is the sponsor of the visa applicants for subclass 143 Contributory Parent visas.

4. The visa applicant is her mother and the second named visa applicant is her brother who are citizens of China. The review applicant’s father, Zhigang Zhang, was not included in the visa application as it was stated that (as at 29 April 2013) he was employed by Chengdu Hongjing Microcircuit Integration Technology Co and would apply to migrate to Australia after the termination of his employment contract. In a statement by the review applicant dated 9 July 2015, she stated that her parents run that company. She stated that they were thinking of expanding the business to Australia as a new market.

5. As a member of the family unit of the visa applicant, the visa applicant’s husband was required to satisfy PIC 4005. This, in part, requires him to undergo an assessment from the Medical Officer of the Commonwealth (MOC) to show that he is free from any disease or condition that would likely to result in significant cost to the Australian community in the area of health care and community services or prejudice access of an Australian citizen or permanent resident to health care or community services.

6. On 15 October 2015 the MOC assessed the visa applicant’s husband as not meeting the health requirement. The basis of this was that he was suffering from active chronic viral Hepatitis B. In response to this report, further information was received and forwarded to the MOC. A second report was prepared by the MOC dated 6 April 2016 again finding that the review applicant’s father did not meet the health criteria.

7. As the visa applicant’s husband did not satisfy PIC 4005, the delegate found that the applicant did not meet the criteria in cl.143.230 and refused the application.

   Information to the Tribunal

8. The review applicant requested a further assessment from the MOC. Further information has provided by the review applicant as to the health of the visa applicant’s husband. This was provided to the MOC.

9. The MOC provided a further report dated 15 February 2018 which concluded that the visa applicant’s husband meets the health requirement with an undertaking. On 15 March 2018 the applicant provided to the Tribunal a Health Undertaking signed on a Form 815 by the visa applicant’s husband, Zhigang Zhang, on 6 March 2018.

10. In light of the material now before the Tribunal, the Tribunal has proceeded to a decision without the need for a hearing.

11. The review applicant was represented in relation to the review by her registered migration agent.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in this review is whether the visa applicant’s husband 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 each member of the family unit of the visa applicant, in certain circumstances, to undergo medical assessment, and to be free of certain diseases or conditions that may impact on the community. The visa applicant’s husband in this case was found to be suffering from active chronic viral hepatitis B.

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

14. 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.

15. 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).

16. As the visa applicant in this case has applied for a permanent visa, the exclusion provision in PIC 4005(3) does not apply.

17. 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?

18. On the evidence before the Tribunal, a MOC opinion is required. 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.

19. The original MOC opinions dated 15 October 2015 and 6 April 2016 found that the visa applicant’s husband did not meet the health requirement. Since then, further information has been provided to the MOC and a further opinion has been obtained. This opinion, dated 15 February 2018, found that the visa applicant’s husband meets the health requirement with an undertaking.

20. A Health Undertaking on a Form 815 signed by the visa applicant’s husband has now been provided to the Tribunal. It is noted that Mr Zhang stated in the Health Undertaking that his intended duration in Australia was temporary. The only time Mr Zhang has entered Australia is on a Visitor visa. He is the non-migrating partner of the visa applicant. Although the application is for a grant of a permanent visa, the Tribunal accepts that in the circumstances the Health Undertaking is valid despite Mr Zhang stating that it was for only a temporary visa and the undertaking has been given for the subclass 143 Contributory Parent visa.

21. Accordingly, based on the opinion of the MOC and in light of the undertaking given by the visa applicant’s husband, the members of the family unit of the visa applicant who are not applicants for the subclass 143 Contributory Parent visa satisfy public interest criterion 4005.

22. 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. As the visa applicant meets this criteria for the grant of the visa, the application of the second named visa applicant is remitted and should now be reconsidered in full.

    DECISION

23. 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 for the purposes of cl.143.230 of Schedule 2 to the Regulations.

    Hugh Sanderson
    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.