Wang (Migration)

[2018] AATA 393

Wang (Migration) [2018] AATA 393 (7 February 2018)

WRITTEN STATEMENT OF DECISION

Division:Migration and Refugee Division

Review Applicant:  Ms Yao Wang

Visa Applicant:  Mr Desheng Wang

Case Number:  1715951

DIBP Reference(s):  OSF2014/098887

Visa Application Refusal:  Contributory Parent (Migrant) (Class CA) Subclass 143 visa

Member and Place:  Nicholas McGowan (Melbourne)

CATCHWORDS
Migration – Contributory Parent (Migrant) (Class CA) visa – Subclass 143 (Contributory Parent) – Health requirement – Applicant previously assessed as not meeting requirement – Applicant subsequently assessed as meeting requirement

LEGISLATION
Migration Act 1958, ss 65, 368
Migration Regulations 1994, Schedule 2, cl 143.225, Schedule 4, PIC 4005(1)(c)

Decision

1. The Tribunal remits the application with the direction the visa applicant (‘applicant’) meets Public Interest Criteria (PIC) 4005(1)(c) for the purposes of clause 143.225.

   Statement

2. This statement fulfils the Tribunal’s obligations under the Migration Act: s.368. While this statement sets out the Tribunals’ decision (above); the reasons for it and findings on material matters (including the evidentiary basis), to fully appreciate this decision, a third-party would need to appraise themselves with the documentary evidence in the Department of Immigration (‘department’) and Tribunal case files.

3. The applicant applied for the 143 visa on 25 July 2014. The Minister refused that application on 16 May 2017 on the basis that the Medical Officer of the Commonwealth assessed the applicant as not meeting the health requirement for the grant of the visa.

4. The review applicant appealed the Minister’s refusal of the applicant’s visa application to this Tribunal.

5. On 18 January 2018 confirmed the validity of a copy of a new ‘Opinion’ (Form 884) from the Review Medical Officer of the Commonwealth (folio 20) which states the applicant Desheng Wang “meets the health requirement”: PIC 4005.

6. The Tribunal is satisfied that the Officer’s assessment dated 17 August 2017 is valid, in that it identifies the medical condition to which the Public Interest Criterion has been applied; specifies the form or level of the condition suffered by the applicant and has applied the statutory criteria by reference to a hypothetical person who suffers from the form or level of the condition. The Tribunal is satisfied that the Officer has applied the correct test and is bound to accept the medical opinion to be correct.

7. Given the above, and based on the opinion of the MOC, the applicant satisfies PIC 4005(1)(c) for the purposes of clause 143.225. Accordingly, the appropriate course is to remit the applicant’s visa application to the Minister for further consideration.

   
   Statement made on 07 February 2018 at 11:12am