Vasant (Migration)

[2024] AATA 3978

Vasant (Migration) [2024] AATA 3978 (20 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Preeti Vasant

VISA APPLICANT:  Master Vignesh Gopi Suresh Kumar

CASE NUMBER:  2404464

HOME AFFAIRS REFERENCE(S):          BCC2023/857078

MEMBER:Member Nathan Goetz

DATE:20 June 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision dated 15 February 2024 refusing to grant the visa applicant a Visitor (Class FA) visa and remits the visa application back to the delegate for reconsideration, with a direction that the visa applicant satisfies the following criteria for the grant of a Subclass 600 (Visitor) visa:

·PIC 4005 the purposes of cl 600.213(1) of Schedule 2 to the Regulations.

Statement made on 20 June 2024 at 1:57pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – tourism and family visit – health requirements – severe physical impairment and dependence on assistance – costs of supportive services – medical officer’s opinion based on 12-month visit – review medical officer’s opinion based on 3-month visit – health requirement finalised – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.213(1), Schedule 4, criterion 4005

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for merits review of a decision made s 65 of the Migration Act 1958 (Cth) (the Act) by a delegate of the Minister refusing to grant the visa applicant a Visitor (Class FA) visa.

   BACKGROUND

2. The visa applicant is a male citizen of India who was born on 7 May 2008 and is presently located in that country.

3. On 4 January 2024 the visa applicant applied for the visa. At the time of visa application, the criteria for the visa were provided in cl 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) and contained several different streams. The visa applicant applied for the visa in the sponsored family stream.

4. On 15 February 2024 the delegate refused to grant the visa applicant the visa. The delegate found that the visa applicant did not satisfy Public Interest Criterion (PIC) 4005 as required by cl 600.213 of Schedule 2 to the Regulations.

5. On 9 March 2024 the review applicant applied to the Tribunal for review of the decision.

   CRITERIA FOR THE GRANT OF THE VISA

   600.213 

   (1)  The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4011, 4013, 4014, 4020 and 4021.

   (2)  If the applicant has not turned 18, the applicant also satisfies public interest criteria 4012, 4017 and 4018.

   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 inister 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.

   CONSIDERATION OF EVIDENCE AND FINDINGS

6. The issue in the review is whether the visa applicant satisfies PIC 4005 for the purpose of cl 600.213(1) of Schedule 2 to the Regulations.

7. If the Tribunal finds that the visa applicant satisfies PIC 4005, the correct or preferable decision is to set aside the decision of the delegate refusing to grant the visa, and remit the visa application back to the delegate for reconsideration with a direction that the visa applicant satisfies PIC 4005.

8. If the Tribunal finds that the visa applicant does not satisfy PIC 4005, the correct or preferable decision is to affirm the decision of the delegate refusing to grant the visa.

9. In the visa application form, the visa applicant identifies that he is a male citizen of India who was born on 7 May 2008 who was born in Bangalore, Karnataka, India and is presently located in that country.

10. He applied for the visa in the sponsored family stream and the purpose of the visit was tourism and a family visit. The visa applicant indicated that he planned to visit Australia for a month. He planned to enter Australia on 15 June 2024 and depart on 15 July 2024.

11. On 4 January 2024 the delegate wrote to the visa applicant and told him that he needed to undergo the following health examinations for the grant of the visa:

    ·     Medical examination

    ·     Chest X-ray examination

    ·     Serum Creatinine and Estimated Glomerular Filtration Rate (eGFR)

12. The visa applicant was given 28 days to respond to this request for health examinations.

13. On 19 January 2024 a Medical Officer of the Commonwealth (MOC) provided the delegate a completed FORM 884: OPINION OF A MEDICAL OFFICER OF THE COMMONWEALTH. In that form, the MOC found that the visa applicant did not meet the health requirement, namely PIC 4005.

14. The opinion detailed that:

15. “During the health assessment, this applicant has been assessed with Severe Duchenne Muscular Dystrophy.

16. “T(he) applicant has severe functional impairment due to Duchenne muscular dystrophy, manifesting as generalised weakness and is dependent on assistance with almost all activities of daily living including dressing, washing, transfers and mobility.

17. The applicant will require significant assistance during school years and is likely to require education support services.

18. A hypothetical person in Australia with the same condition as the applicant, at the same severity, would be likely to require long term support including but not limited to special education services. This condition is likely to be Progressive.

19. 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.

20. These services would be likely to include special education services.

21. 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.”

22. The MOC detailed that the estimate costs of the Special education services to be $63,900.00 for 12 months. This costing is calculated on the basis of the applicant’s specific condition, and guided by the information contained within the Department of Home Affairs’ Notes for Guidance.

23. Although the delegate decision record does not identify the basis upon which the delegate was not satisfied that the visa applicant did not satisfy the ‘health requirement’ only broadly stating that the delegate was not satisfied that the visa applicant met PIC 4005. However, given the date of the MOC assessment, it is clear that the delegate considered this as the ground to refuse to grant the visa on 15 February 2024.

24. After the review application was lodged with the Tribunal on 9 March 2024, the Tribunal was advised by the MOC as follows in an email dated 30 May 2024:

25. “We can confirm the AAT review request has now been assessed by a Senior Medical Officer of the Commonwealth and an outcome is now available in HAP.

26. As per email from the Department of Home Affairs dated 28 May 2024, advice for this AAT case - 'to proceed with an RMOC opinion based on a reduced stay of 3 months.' The medical condition is a meet for current temporary reduced stay 3-month visitor visa application, the total costs of supportive services required is not likely to enliven the requirements of PIC 4005 during proposed period of stay.

27. Current RMOC opinion is assessed against the new policy settings for costing period on 1 July 2019; State Disability Service and National Disability Insurance Scheme costs on 1 April 2020; significant cost threshold on 1 Sep 2021; and the latest Notes for Guidance for Disability Services May 2023.’

28. This advice was provided as a result of the visa applicant requesting an updated MOC assessment based on the fact that the visa applicant was seeking to visit Australia for less than 3 months, whereas the first MOC assessment was based on the visa applicant visiting Australia for 12 months.

29. A search of the Department records demonstrates that as of 29 May 2024, the following is recorded:

30. ‘Finalised health requirement’ – Meets (reduced stay).’

31. The Tribunal understands the ‘health requirement’ to mean PIC 4005.

    FINDINGS AND REASONS

32. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

33. The evidence now demonstrates that the visa applicant satisfies PIC 4005 per the email from the MOC on 30 May 2024 which reflects the Department record of 29 May 2024. It is unnecessary to consider the various paragraphs of PIC 4005 based on the fact that the Department records demonstrate that PIC 4005 is met in its entirety.

    CONCLUSION

34. For the reasons given above, the Tribunal finds that the visa applicant satisfies PIC 4005 for the purposes of cl 600.213(1).

    DECISION

35. The Tribunal sets aside the decision dated 15 February 2024 refusing to grant the visa applicant a Visitor (Class FA) visa and remits the visa application back to the delegate for reconsideration, with a direction that the visa applicant satisfies the following criteria for the grant of a Subclass 600 (Visitor) visa:

    · PIC 4005 the purposes of cl 600.213(1) of Schedule 2 to the Regulations.

    Nathan Goetz

    
    

    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.