Stubbs (Migration)

[2017] AATA 1663

Stubbs (Migration) [2017] AATA 1663 (5 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Magen Stubbs

CASE NUMBER:  1621414

DIBP REFERENCE(S):  CLF2013/308226

COUNTRY OF REFERENCE:                  United States of America

MEMBER:Kira Raif

DATE:5 October 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 (Child) visa:

·PIC 4007(1)(c) for the purposes of cl.802.223 of Schedule 2 to the Regulations.

Statement made on 05 October 2017 at 10:38am

CATCHWORDS

Migration – Child (Residence) (Class BT) visa – Subclass 802 (Child) – Health criteria – MOC opinion – Meets health requirements

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, r 2.25A, cl 802.223, Schedule 4, PIC 4007

CASES

Robinson v MIMIA (2005) 148 FCR 182

Ramlu v MIMIA [2005] FMCA 1735

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 24 November 2016 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant is a national of the US, born in June 1989. She applied for the visa on 13 December 2013. The delegate refused to grant the visa as the applicant did not satisfy cl.802.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4007 of Schedule 4 to the Regulations was not met. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 8 February 2017 to give evidence and present arguments. 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 applicant meets Public Interest Criterion (PIC) 4007 as required by the criteria for the grant of the visa. Public Interest Criterion 4007 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. This last requirement may be waived in certain circumstances.

5. Clause 4007(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.

6. In determining whether a person meets PIC 4007(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 4007(1)(a), (b), (c))?

7. According to the primary decision record, the applicant was assessed by the Medical Officer of the Commonwealth during the processing of her visa application and that the MOC formed an opinion in May 2015 that the applicant did not meet the PIC 4007(1)(c). According to the primary decision record, the MOC estimated the likely cost to the Australian community as $698,200.

8. The Tribunal gave the applicant an opportunity to seek a further MOC opinion and the applicant provided additional medical evidence for consideration of the Medical Officer. On 4 October 2017 the Tribunal received the MOC opinion that the applicant meets the health requirements.

9. The Tribunal must take the MOC opinion as correct, but must be 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. Having regard to the MOC opinion, the Tribunal finds that the visa applicant meets the health requirements. Accordingly, based on the opinion of the MOC, the applicant satisfies PIC 4007(1)(c).

   Conclusion

10. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for the visa.

    DECISION

11. The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 (Child) visa:

    ·PIC 4007(1)(c) for the purposes of cl.802.223 of Schedule 2 to the Regulations.

    Kira Raif

    
    

    Senior Member