Tam (Migration)

[2017] AATA 1625

Tam (Migration) [2017] AATA 1625 (19 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Yin Fong Tam

CASE NUMBER:  1613939

DIBP REFERENCE(S):  CLF2015/24283

MEMBER:Kira Raif

DATE:19 September 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Aged Parent (Residence) (Class BP) visa.

Statement made on 19 September 2017 at 3:51pm

CATCHWORDS

Migration – Aged Parent (Residence) (Class BP) visa – Subclass 804 (Aged Parent) – Public Interest Criterion 4005 – Medical assessment – Applicant did not meet health requirements – Request for Ministerial Intervention

LEGISLATION

Migration Act 1958, ss 65, 351, 359A

Migration Regulation 1994, Schedule 2, cl 804.225, Schedule 4, r 2.25A

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 12 August 2016 to refuse to grant the applicant a Aged Parent (Residence) (Class BP) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant is a national of HKSAR, born in January 1917. She applied for the visa on 21 April 2015. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.804.225 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. On 19 September 2017 the review applicant confirmed, through her migration agent, that she agreed to the Tribunal proceeding to the decision without a hearing, on the material before it.

   Relevant law

4. The issue in this review is whether the visa applicant 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, 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.

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

7. 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).

   Does the applicant meet the health criteria?

8. There is no evidence that the applicant was the holder of a substituted subclass 600 visa at the time of the application.

9. The applicant provided to the Tribunal a copy of the primary decision. It indicates that she was required to undertake health checks during the processing of the application. In June 2016 the Medical Officer of the Commonwealth formed the opinion that the applicant did not meet the health requirements in PIC 4005. The applicant provided additional medical evidence which was referred to the MOC for review but the RMOC again formed an opinion that the applicant did not meet the health requirements. The applicant was informed of that opinion in accordance with s. 359A of the Act. In response, the applicant conceded that she did not meet the requirements of Item 4005 but and requested the Tribunal to refer the matter to the Minister.

10. On the evidence before the Tribunal, a MOC opinion is required. 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.

11. Having regard to the MOC opinion, the Tribunal finds that the applicant does not meet PIC 4005(1)(c).  The Tribunal finds that the applicant does not meet cl. 804.225.

12. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The Tribunal accepts there are compassionate circumstances in this case, particularly given the applicant’s age, poor health at present and the difficulties that travel to, and residence in her home country, may cause the applicant. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) and will refer the matter to the Department.

    Conclusion

13. As the applicant has not satisfied the requirements of PIC 4005, the Tribunal must affirm the decision under review.

    DECISION

14. The Tribunal affirms the decision not to grant the applicant a Aged Parent (Residence) (Class BP) visa.

    Kira Raif
    Senior Member