Rakshe (Migration)

This matter concerned an application for an Aged Parent (Residence) (Class BP) visa, subclass 804. The applicant was initially a secondary applicant, with her deceased husband being the primary applicant. The delegate had found that the applicant did not meet clause 804.321 of the Migration Regulations 1994 because her husband, as the primary applicant, did not meet the primary criteria for the visa, specifically Public Interest Criterion (PIC) 4005.

The central legal issue before the Tribunal was whether the applicant, now the primary applicant following her husband's death, met the health criteria as stipulated by PIC 4005 for the grant of the visa. This criterion requires an applicant to be free from tuberculosis and from diseases or conditions that pose a threat to public health or the Australian community, or that would likely result in significant costs to the community for healthcare or community services, or prejudice access to such services.

The Tribunal reasoned that as the applicant was now the primary applicant and her husband was deceased, the previous refusal based on his failure to meet PIC 4005 was no longer applicable. The Tribunal was satisfied that the applicant was now the primary applicant and that she met the requirements of PIC 4005 for the purposes of clause 804.225. Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met PIC 4005 for the purposes of clause 804.225.