Wang (Migration)

[2018] AATA 2265

Wang (Migration) [2018] AATA 2265 (7 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Xiaoyan Wang

VISA APPLICANTS:  Mrs Junlan Guo
Mr Lidong Wang

CASE NUMBER:  1702359

DIBP REFERENCE(S):  2008/061757 OSF2008/061757

MEMBER:Russell Matheson

DATE:7 May 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the visa applicants Parent (Migrant) (Class AX) visas.

Statement made on 07 May 2018 at 9:24am

CATCHWORDS
Migration – Parent (Migrant) (Class AX) visa – Subclass 103 (Parent) – Secondary applicant – Health condition – Valid Medical Officer of the Commonwealth opinion – Public interest Criteria not satisfied – Decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 2.25A Schedule 1 Item 1124 Schedule 2 cls 103.227 Schedule 4 Criteria 4005

CASES
Ramlu v MIMIA [2005] FMCA 1735
Robinson v MIMIA (2005) 148 FCR 182

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 to refuse to grant the visa applicants Parent (Migrant) (Class AX) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visa on 11 March 2008. The delegate refused to grant the visas on 11 January 2017 on the basis that cl.103.227 of Schedule 2 to the Migration Regulations 1994 (the Regulations) was not satisfied because the health criteria in public interest criterion (PIC) 4005 of Schedule 4 to the Regulations was not met.

   RELEVANT LAW

3. At the time the visa application was lodged, the Parent (Migrant) (Class AX) visa contained Subclass 103 (Parent): Item 1124 of Schedule 1 to the Regulations.

4. The Parent (Migrant) (Class AX) visa is a permanent visa for parents of settled Australian citizens, Australian permanent residents and eligible New Zealand citizens who satisfy the ‘balance of family’ test.

5. The criteria for a Subclass 103 visa are set out in Part 103 of Schedule 2 to the Regulations. The primary criteria must be satisfied by at least one member of the family unit who is an applicant for the visa. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

6. The primary criteria require that at the time of application, the visa applicant be a ‘parent’ of a settled Australian citizen or permanent resident, or a settled eligible New Zealand citizen: cl.103.211. Under r.1.03 of the Regulations, ‘parent’ includes an adoptive or step parent and ‘step-child’ in relation to a parent is a child who is the natural or adopted child of a person’s current or, in certain circumstances, former spouse.

7. The Regulations also require that the visa applicant be sponsored at the time of application by, if the child has turned 18, the child or the child’s cohabiting spouse (if that person has turned 18) or, if the child has not turned 18, by either the child’s cohabiting spouse (if the spouse has turned 18) or a relative or guardian of the child or the child’s spouse who has turned 18 or a community organisation: cl.103.212.

8. At the time of decision, the primary criteria to be satisfied are that:

   ·the visa applicant continues to satisfy the criterion in cl.103.211: cl.103.221

   ·a sponsorship of the kind mentioned in cl.103.212 has been approved by the Minister and is in force (whether or not the sponsor was the sponsor at time of application): cl.103.222

   ·an assurance of support has been accepted by the Department of Family and Community Services: cl.103.226

   ·the visa applicant and family members satisfy certain public interest criteria: cl.103.224, 103.225, 103.227 and 103.228

   ·if the applicant has previously made a valid application for another parent visa, that application is not ‘outstanding’: cl.103.229

   ·in the case of applications made on or after 1 July 2005, the visa applicant satisfies certain passport requirements: cl.103.230.

9. Part 103 of Schedule 2 also contains secondary criteria that must be satisfied by applicants who are members of the family unit of a person who satisfies the primary criteria.

10. The primary applicant has been considered against the following time of decision criterion.

    Clause 103.227

    (1)Each member of the family unit who is an applicant for a Subclass 103 visa is a person who:

    (a)satisfies public interest criteria 4001, 4002, 4003,4004,4004, 4009, 4010 and 4020; and

    (aa)if the person had turned 18 at the time of application, satisfies public interest criterion 4019; and

    b)if he or she has previously been in Australia, satisfies special return criteria 5001,5002 and 5010.

    (2)Each member of the family unit of the applicant who is not an applicant for a Subclass 103 visa is a person who:

    (a)       satisfies public interest criteria 4001, 4002, 4003 and 4004; and

    (b)satisfies public interest criterion 4005, unless the Minister is satisfied that it would be unreasonable to require the person to undergo assessment in relation to that criterion.

    Public interest criteria

    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.

    CLAIMS AND EVIDENCE

11. The issue in the present case is whether the second named visa applicant, Mr Lidong Wang, meets (PIC) 4005 as required by the criteria for the grant of the visa. Mr Wang is a member of the family unit of the primary applicant, Mrs Junlan Guo, and if he does not satisfy PIC 4005 then she will not be eligible for the grant of the visa pursuant to cl.103.227. PIC 4005, as it applies to this case, is extracted in the attachment to this decision. It requires the applicants in certain circumstances, to undergo medical assessment, and to be free of certain diseases or conditions that may impact on the community. In this case the delegate is not satisfied that the secondary applicant meets cl.103.227 in Schedule 2 of the Regulations.

12. On 9 November 2016 Mrs Junlan Guo and Mr Lidong Wang (spouse) were requested to undertake medical examinations, chest x-rays and blood tests to satisfy the health criteria for the grant of a Parent (Migrant) (Class AX) Subclass 103 visa.

13. On 18 November 2016 the Medical Officer of the Commonwealth (MOC) assessed the primary applicant Mrs Junlan Guo and the secondary applicant Mr Lidong Wang against (PIC) 4005 and found that the secondary applicant, Mr Lidong Wang did not satisfy PIC 4005(1)(c)(ii)(A) in Schedule 4 to the Regulations for the period of a permanent stay in Australia. The parties were given the opportunity to provide additional medical information.

14. Additional information was submitted on 9 January 2017 and forwarded to the MOC for consideration. On 10 January 2017 the MOC maintained their decision that Mr Lidong Wang did not satisfy PIC 4005(1)(c)(ii)(A) in Schedule 4 to the Regulations for the period of a permanent stay in Australia. As a member of her family unit did not satisfy PIC 4005, the delegate found the primary applicant Mrs Guo did not meet cl.103.227(1)(a) for the grant of a Parent (Migrant) Class AX subclass 103 visa.

15. On 17 November 2017 a request for a further opinion from a MOC was lodged with the Administrative Appeals Tribunal for Mr Wang by the review applicant Mr Xiaoyan Wang (son).

16. On 24 January 2018 the MOC assessed the secondary applicant Mr Lidong WANG for a second time against PIC 4005 and found that the secondary applicant, Mr Lidong Wang did not satisfy PIC 4005(1)(c)(ii)(A) in Schedule 4 to the Regulations for the period of a permanent stay in Australia.

17. The review applicant appeared before the Tribunal and provided two supporting letters from Longwang He and Xiaoxia Weng stating that they are friends of the review applicant and his father Mr Wang and believe Mr Wang to be in good health. Two witnesses also appeared at the Tribunal attesting to the good health of Mr Wang. The Tribunal accepts that Mr Wang’s friends believe that he is in good health.

18. The review applicant also provided a report from [Dr A] dated 27 March 2017 who states this is the first occasion that he has seen Mr Lidong Wang. In summary [Dr A] states that Mr Wang has a history of [medical condition deleted] in 2004. He (Wang) is clinically well at the moment and there are no signs of [his condition worsening]. If his condition remains stable, he would require 2 to 4 specialist visits per year with blood tests up to 4 times a year. Based on the current [medication] regimen, the estimated cost to the PBS is approximately $210 per month. The Tribunal accepts that Mr Lidong would require long term specialist care and medication.  

19. The review applicant stated that his father’s condition is stable and that he is not seeking permanent stay in Australia for medication or treatment he just wants to be reunited with his family. The review applicant also stated that his father’s medication has decreased over time and his condition is stable. 

    Public Interest Criterion 4005

20. Clause 103.227 requires the primary applicant to satisfy primary criteria. It stipulates that any member of the primary applicant’s family unit who is not a visa applicant must satisfy certain criteria. Criteria include the specified public interest criteria, one of which is PIC 4005, the health criterion. The migrating spouse, Mr Lidong Wang, does not meet the prescribed health requirements outlined in PIC 4005. Therefore, as a member of her family unit does not meet a specified criterion, the primary applicant Mrs Junlan Guo, does not satisfy cl.103.227(1)(a) of the Regulations.

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

21. PIC 4005(1)(a) and (b) require the applicant to be free from tuberculosis and 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.

22. PIC 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).

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

24. 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 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).

25. 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 criteria 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.

26. The MOC opinion dated 24 January 2018 indicates the applicants spouse (Mr Wang) is a 61 year old person who has a stable [medical condition] and requires lifelong [medical] support. The MOC opinion states that a hypothetical person with the same condition and severity as the applicant would be likely to require long term health care services, including but not limited to [particular] pharmaceuticals and specialist review. The MOC opinion also indicates Mr Wang has a stable [medical condition] requiring lifelong [specialist medication]. The MOC opinion states that a hypothetical person with the same condition and severity as the applicant would be likely to require long term specialist health care services including, but not limited to [specialist] medication and medical review. These conditions are likely to be permanent.

27. Specifically, the Tribunal is satisfied that the MOC opinion identified Mr Wang’s condition to which PIC 4005 have been applied, ascertained the form or level of condition suffered by him and applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the conditions. Accordingly the Tribunal is satisfied the MOC opinion is valid.

    FINDINGS

28. The Tribunal is bound to accept the final assessment of the MOC to be correct for the purposes of deciding whether Mr Wang satisfies the relevant health condition. Accordingly, based on the opinion of the MOC, Mr Wang does not satisfy the health requirements outlined in PIC 4005. It follows that the primary applicant Mrs Guo does not satisfy cl.103.227 as Mr Wang is a member of her family unit. Accordingly the Tribunal must affirm the decision to refuse the primary applicant’s visa.

29. As Mr Wang does not satisfy PIC 4005, he is unable to meet cl.103.323. Further, as the primary applicant does not meet the criteria for the grant of the visa, it follows that Mr Wang cannot meet cl.103.321. Accordingly the Tribunal must also affirm the decision to refuse the secondary applicants visa.

    DECISION

30. The Tribunal affirms the decisions not to grant the visa applicants Parent (Migrant) (Class AX) visas.

    Russell Matheson
    Member