Selwanis (Migration)

[2024] AATA 2671

Selwanis (Migration) [2024] AATA 2671 (1 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Dolagy Gozaif Haleem Selwanis
Mr Morgos Morad Diryas Mina
Mr Abanob Morgos Murad Diryas
Mr Arsani Morgos Murad Diryas

REPRESENTATIVE:  Ms Alison Valerie Saunders

CASE NUMBER:  2407719

HOME AFFAIRS REFERENCE(S):          CLF2019/16764

MEMBER:Kira Raif

DATE:1 July 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

Statement made on 01 July 2024 at 6:12pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – health criteria – disease or condition likely to require health care or community services – secondary applicant young adult child – opinion of medical officer of commonwealth taken as correct – consent to decision without hearing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.12, 2.25A(3), Schedule 2, cl 836.224, Schedule 4, criterion 4005(1)(c)

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

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 Home Affairs on 21 March 2024 to refuse to grant the applicants Other Family (Residence) (Class BU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants are national of Sudan. They applied for the visas on 2 July 2018. The application was initially refused in May 2019 and remitted by the Tribunal in May 2023. The delegate again refused to grant the visas in March 2024 on the basis that the third named applicant (now referred to as the applicant) did not satisfy cl 836.332 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4005 of Schedule 4 to the Regulations was not met. The applicants seek review of the delegate’s decision.

3. On 17 May 2024 the Tribunal wrote to the review applicants by letter addressed to their representative, advising that it had considered all the material before it relating to their application but it was unable to make a favourable decision on that information alone. The Tribunal invited the review applicants to give oral evidence and present arguments at a hearing on 3 July 2024. On 27 June 2024 the Tribunal was advised in writing that the review applicants did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable them to appear before it. This advice was from the first named review applicant. This matter has therefore been determined on the evidence available to the Tribunal.

   Relevant law

4. Clause 836.224 requires each member of the family unit of the [primary] applicant to satisfy the public interest criterion 4005. The term ‘member of the family unit’ is defined in r. 1.12 and, relevantly, includes a dependent child.

5. The issues in this review are whether the applicant is the member of the family unit of the primary applicant and whether he 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, 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.

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

8. In determining whether a person meets PIC 4005(1)(a), (b) or (c) reg 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: reg 2.25A(3).

   Does the applicant meet PIC 4005?

9. When making the application, the applicant claimed to be a dependent child of the primary visa applicant, who is his mother, and a member of her family unit.

10. At the time of this decision, the visa applicant is 20 years of age. The applicant made the application on the basis of being a dependent child of his parents. There is no evidence before the Tribunal to indicate that his circumstances have now changed and that he is no longer reliant on his parents to meet his basic needs of food, shelter and clothing. There is no evidence to indicate that the applicant has any other income, independent of his parents. The Tribunal finds that the applicant continues to be a dependent child, and a member of the family unit, of his parents and of the primary visa applicant. He is also an applicant for a Subclass 836 visa.

11. The Tribunal finds that the MOC opinion is required. The applicants provided to the Tribunal a copy of the primary decision. It indicates that the applicants were required to undertake medical examinations. It is stated that in July 2023 a MOC formed an opinion that the applicant, Abanob Morgos Murad Diryas, did not meet the health requirements. The applicant provided additional medical evidence that was considered by the MOC but in November 2023 the MOC again formed the view that Abanob did not met the health requirements.

12. 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. The Tribunal is satisfied that the MOC opinion complies with these requirements.

13. Having regard to the MOC opinion, the Tribunal finds that the applicant does not satisfy public interest criterion 4005(1)(c). The Tribunal finds that the first named applicant does not meet cl. 836.224(1) and cl. 836.224.  There is no evidence to indicate that the applicants meet the requirements for the grant of other visas within this Class.

    Conclusion

14. As the applicant has not satisfied the requirements of PIC 4005, and he is a member of the family unit of the primary applicant and is an applicant for the visa himself, the Tribunal must affirm the decision under review.

    DECISION

15. The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

    Kira Raif
    Senior Member