Tan (Migration)

[2024] ARTA 67

DECISION AND  

REASONS FOR DECISION

Tan (Migration) [2024] ARTA 67 (6 November 2024)

Applicant:Mr Jian Tan

Visa Applicants:  Mr Yuexiang Tan
Ms Yuanchao Jiang

Respondent:  Minister for Home Affairs

Tribunal Number:  2307539

Tribunal:General Member S Durvasula

Place:Sydney

Date:  6 November 2024

Decision:The Tribunal sets aside the decision under review and remits the application for Contributory Parent (Migrant) (Class CA) visas for reconsideration, in accordance with the order that the second-named visa applicant meets the following criteria for a Subclass 143 (Contributory Parent) visa:

·PIC 4005 for the purposes of cl 143.225 of Schedule 2 to the Regulations.

AND

The application for review in relation to the
first-named visa applicant is dismissed under
s 95(2) of the Administrative Review Tribunal Act 2024 (Cth)

Statement made on 6 November 2024 at 4:32pm

CATCHWORDS
MIGRATION – Contributory Parent (Migrant) (Class CA) visa – Subclass 143 (Contributory Parent) – first applicant father’s death, with application withdrawn and dismissed – second applicant mother’s health requirements – checks finalised and recommended cleared – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Administrative Review Tribunal Act 2024 (Cth), ss 95(2), 106(3)
Migration Regulations 1994 (Cth), Schedule 2, cl 143.225, Schedule 4, criterion 4005

STATEMENT OF REASONS

APPLICATION FOR REVIEW

1. On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.

2. This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 12 May 2023 to refuse to grant the visa applicants Contributory Parent (Migrant) (Class CA) Subclass 143 visas under s 65 of the Migration Act 1958 (Cth) (the Act).

3. The visa applicants are spouses and applied for the visas on 16 December 2021. The

   
   

   first-named visa applicant (Mr Tan) was the primary visa applicant. The second-named applicant or secondary applicant (Ms Jiang) claimed to be a member of the family unit of Mr Tan.

4. The delegate refused to grant the visa on the basis that the first-named visa applicant did not satisfy cl 143.225 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because he did not meet the health criteria in Public Interest Criterion (‘PIC’) 4005 of Schedule 4 to the Regulations. In relation to second-named visa applicant, the delegate found she did not meet 143.321 as she was not the member the family unit of a person, who having satisfied the primary criteria, is the holder of a Subclass 143 visa.

5. The review applicant was represented in relation to the review.

6. The Tribunal has decided this matter without a hearing, as the decision is wholly in the review applicant’s favour and it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties, as it is based wholly on documentary evidence (s 106(3) of the Administrative Review Tribunal Act 2024 (the ART Act)).

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. On 5 September 2023, the Tribunal was informed that the primary visa applicant, Mr Tan, had passed away on 26 August 2023. A death certificate was provided to the Tribunal. On

   
   

   6 November 2024, the review applicant withdrew in writing, the application for review in relation to Mr Tan.

8. As the review applicant has withdrawn the application as it relates to Mr Tan, in writing,

   
   

   s 95(2) of the ART Act provides that this is taken to be a dismissal. Therefore, the Tribunal finds the application for review in relation to Mr Tan is dismissed.

9. As the primary visa applicant has passed away, the Tribunal finds the secondary applicant can be assessed against the primary criteria for the grant of the visa.

10. Therefore, the issue in the present case is whether the second-named visa applicant, Ms Jiang, meets PIC 4005 as required by the criteria for the grant of the visa. PIC 4005 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.

11. On 17 January 2024, the Tribunal invited the second-named visa applicant to undertake new health checks, which she did. Department records accessed by the Tribunal on 18 October 2024, indicates that on 11 March 2024, the health requirement was ‘finalised’ and the second-named visa applicant was assessed as ‘recommended cleared’ for the health requirement. The Tribunal is satisfied this means that each of the relevant criteria in PIC 4005 has been met. In light of this evidence, the Tribunal is satisfied that the second-named visa applicant meets the requirements in PIC 4005 for the purposes of cl 143.225 of Schedule 2 to the Regulations.

12. Given the findings above, the appropriate course is to set aside the decision under review in relation to the second-named visa applicant and remit the application for the visas to the Minister to consider the remaining criteria for the visa.

    DECISION

13. The Tribunal sets aside the decision under review and remits the applications for Contributory Parent (Migrant) (Class CA) visas for reconsideration, in accordance with the order that the second-named visa applicant meets the following criteria for a Subclass 143 (Contributory Parent) visa:

    ·PIC 4005 for the purposes of cl 143.225 of Schedule 2 to the Regulations.

    AND

    The application for review in relation to the first-named visa applicant is dismissed under
    s 95(2) of the Administrative Review Tribunal Act 2024 (Cth).

    Representative for the Applicant:           Ms Bingqing Wang (MARN: 1278397)