Shi (Migration)

[2023] AATA 357

Shi (Migration) [2023] AATA 357 (20 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Guoliang Shi
Ms Ziru Liu

CASE NUMBER:  2210422

HOME AFFAIRS REFERENCE(S):          BCC2021/1819068

MEMBER:Justin Meyer

DATE:20 February 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for Contributory Aged Parent (Residence) (Class DG) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 864 (Contributory Aged Parent) visa:

·PIC 4005(1)(c)(ii)(A) for the purposes of cl 864.324 of Schedule 2 to the Regulations.

Statement made on 20 February 2023 at 4:11pm

CATCHWORDS

MIGRATION – Contributory Parent (Residence) (Class DG) visa – Subclass 864 (Contributory Aged Parent) – health criteria – disease or condition likely to require health care or community services and result in significant cost to Australian community – second applicant’s lung cancer – death certificate provided to tribunal – first applicant meets criterion – decision made without hearing necessary – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 864.324, Schedule 4, criterion 4005(1)(c)(ii)(A)

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 18 July 2022 to refuse to grant the applicants Contributory Aged Parent (Residence) (Class DG) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 17 September 2021. The delegate refused to grant the visa on the basis that the first named applicant (now referred to as the applicant) did not satisfy cl 864.324 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.

3. The applicants were represented in relation to the review.

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. There is no need for a hearing because of the provision of new information from the applicant and the Tribunal proceeds to its decision.

   consideration of Claims and evidence

5. 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, 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 second named applicant in this case, Ms Ziru Liu, was noted by the medical officer as follows:

   The applicant is a 68 year old person with:

   - Advanced lung cancer.

   ..Form and severity of the applicant's condition: the applicant has advanced Stage 4, EGFR-positive non-small cell lung cancer, which is being treated with immunotherapy.Provision of services to a

   hypothetical person with the applicant's condition: A hypothetical person in Australia with the same condition as the applicant, at the same severity, would be likely to require community services, including but not limited to medications and palliative care services.. This condition is likely to be Progressive.

   I consider that a hypothetical person with this disease or condition, at the same severity as the applicant, would be likely to require health care or community services during the period specified above.

   These services would be likely to include:

   Chemotherapy

   Palliative care Services

   Medical services

   Provision of these health care and/or community services would be likely to result in a significant cost

   to the Australian community in the areas of health care and/or community services.

   In preparing this opinion, I have had regard to the information available to date concerning the applicant, including, but not limited to the visa medical assessment and chest x-ray (dated 27 May, 2022) and reports from medical oncologist Dr Harvey (dated 14 January, 2021) and oncologist Dr Itchins (dated 21 July, 2020).

6. The Tribunal has received information that the second named applicant Ms Ziru Liu has died in the intervening period. A Death Certificate of Ziru Liu was provided on 15 November 2022. Noting that the other applicant received a favourable health assessment, and is the only other applicant, the Tribunal finds that PIC 4005(1)(a), (b), (c) ‘applicant free from the relevant diseases or conditions’ is complied with.

7. 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

8. The Tribunal remits the application for Contributory Aged Parent (Residence) (Class DG) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 864 (Contributory Aged Parent) visa:

   ·PIC 4005(1)(c)(ii)(A) for the purposes of cl 864.324 of Schedule 2 to the Regulations.

   Justin Meyer
   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.