Rakshe (Migration)

[2017] AATA 1666

Rakshe (Migration) [2017] AATA 1666 (9 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Anjali Balkrishna Rakshe

CASE NUMBER:  1612116

DIBP REFERENCE(S):  CLF2015/15944

MEMBER:Margie Bourke

DATE:9 October 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for an Aged Parent (Residence) (Class BP) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 804 (Aged Parent) visa:

·PIC 4005(1) for the purposes of cl.804.225 of Schedule 2 to the Regulations.

Statement made on 09 October 2017 at 10:30am

CATCHWORDS

Migration – Aged Parent (Residence) (Class BP) visa – Subclass 804 (Aged Parent) – Health criteria – Deceased spouse did not meet health criteria – Applicant now primary applicant – Meets health criteria

LEGISLATION

Migration Act 1958, ss 65, 360(2)

Migration Regulations 1994, Schedule 2, cl 804.225, r 2.25A, Schedule 4, PIC 4005

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 18 July 2016 to refuse to grant the applicant a Aged Parent (Residence) (Class BP) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 16 March 2015. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.804.225 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. The tribunal has considered the applications for the visa, the Department decision record dated 18 July 2016, the MOC opinion in relation to the husband of the applicant Mr Balkrishna Trimbakrao Rakshe dated 14 April 2016, and the death certificate in relation to Mr Balkrishna Trimbakrao Rashke dated 17 June 2017. The tribunal is satisfied that in the changed circumstances before it, the tribunal can make a decision favourable to the applicant without proceeding to a hearing, pursuant to s.360(2) of the Act.

4. The following are the reasons that the tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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. The applicant in this case is the spouse of a person whom the Medical Officer of the Commonwealth found did not meet the requirements of PIC 4005. 

6. The delegate found the applicant did not meet cl.804.321.  The applicant, at the time of the delegate’s decision was a secondary visa applicant.  The applicant did not meet the requirements of cl.804.321 because her husband was the primary visa applicant and he did not meet the primary criteria.

7. The tribunal is satisfied, based on the death certificate that the husband of the applicant is now deceased.

8. The tribunal is satisfied the applicant is now the primary visa applicant. In this review the tribunal must consider whether the applicant meets the primary criteria. The tribunal has considered whether the applicant meets the requirements of PIC 4005 for the purposes of cl.804.225.

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

9. 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.

10. 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).

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

12. 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).

13. The Department file did not contain the MOC opinion in relation to the applicant.  It did contain the MOC opinion in relation to her husband. The MOC opinion dated 14 April 2016 found that Mr Balkrishna Trimbakrao Rakshe did not meet the requirements of PIC 4005. Mr Rakshe is now deceased, and is not the primary visa applicant in this matter. 

14. The applicant, Mrs Anjali Balakraishna Rakshe is the only remaining applicant in this review, and is now the primary visa applicant.  In the Department’s decision record dated 18 July 2016, the delegate recorded as follows:- “The applicant Mr BALKRISHNA TRIMBAKRAO RASHKE and Mrs ANJALI BALAKRISHNA RAKSHE were requested by the Department to undergo medical examinations, chest x-rays and HIV blood tests in order to satisfy Public Interest Criteria 4005 of Regulation 804.225(1).  On 25 April 2016 Mrs ANJALI BALAKRISHNA RAKSHE satisfied the Public Interest Criteria of Regulation 804.225.”

15. The tribunal accepts the matters recorded in the Department’s decision record in relation to the applicant undergoing the assessments, and the MOC opinion that the applicant is free from the relevant diseases or conditions and meets the PIC requirements. On the basis of the evidence before the tribunal, the applicant satisfies PIC 4005(1)(a), (b) and (c).

16. 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

17. The Tribunal remits the application for a Aged Parent (Residence) (Class BP) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 804 (Aged Parent) visa:

    ·PIC 4005(1) for the purposes of cl.804.225 of Schedule 2 to the Regulations.

    Margie Bourke
    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.