Tanabe (Migration)

[2020] AATA 5999

Tanabe (Migration) [2020] AATA 5999 (1 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Shigeko Tanabe

CASE NUMBER:  2003531

HOME AFFAIRS REFERENCE(S):          CLF2016/34611

MEMBER:Kira Raif

DATE:1 December 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Aged Parent (Residence) (Class BP) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 804 (Aged Parent) visa:

·PIC 4005(1)(c) for the purposes of cl.804.225 of Schedule 2 to the Regulations.

Statement made on 01 December 2020 at 7:44pm

CATCHWORDS

MIGRATION – Aged Parent (Residence) (Class BP) visa – Subclass 804 (Aged Parent) – spouse did not meet the health requirement – spouse has passed away – spouse is no longer an applicant for a visa –decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, r.2.25A, Schedule 2, cls 804.225, PIC 4005(1)(c)

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 Home Affairs on 12 February 2020 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 applicant applied for the visa on 7 June 2016. 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 by the applicant’s spouse.

3. The applicant was represented in relation to the review by her registered migration agent. 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 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, 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).

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

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

9. The primary decision record indicates that the applicant and her partner, who was included in the application, undertook health examinations. While the applicant was found to have met the health requirements, the MOC formed an opinion that her spouse did not meet the health requirements.

10. The applicant provided to the Tribunal evidence that her husband has passed away. The Tribunal finds that he is no longer an applicant for a visa.

11. Evidence before the Tribunal indicates that the applicant did meet the health requirements. Having regard to that information, the Tribunal finds that the applicant satisfies public interest criterion 4005(1)(c).

    Conclusion

12. 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

13. The Tribunal remits the application for a Aged Parent (Residence) (Class BP) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 804 (Aged Parent) visa:

    ·PIC 4005(1)(c) for the purposes of cl.804.225 of Schedule 2 to the Regulations.

    Kira Raif
    Senior Member