Shan (Migration)

[2020] AATA 6004

Shan (Migration) [2020] AATA 6004 (19 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Yaowen Shan

VISA APPLICANTS:  Mr Bingchao Shan
Ms Gongmei Lie

CASE NUMBER:  2009829

HOME AFFAIRS REFERENCE(S):          OSF2015/028003

MEMBER:Kira Raif

DATE:19 November 2020

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 19 November 2020 at 11:59am

CATCHWORDS

MIGRATION – Contributory Parent (Class CA) visa – Subclass 143 (Migrant) visa – Health Public Interest Criterion 4005 met– decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, r 2.25A, Schedule 2, cl 143.225, Schedule 4

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 Home Affairs on 8 April 2020 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 29 June 2015. The delegate refused to grant the visa on the basis that the visa applicants 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 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, as it applies to this case 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)(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).

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

7. There is no evidence that the applicants are holders of substituted subclass 600 visas.

8. The primary decision record indicates that the delegate requested the visa applicants to undertake medical examinations but this was not done. The review applicant provide to the Tribunal evidence that the visa applicants had undertaken medical examinations and have been cleared. These remain valid.

9. Accordingly, the applicant s satisfy public interest criterion 4005(1)(c).

   Conclusion

10. 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

11. 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