Yang (Migration)

[2020] AATA 4993

Yang (Migration) [2020] AATA 4993 (4 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Guang Yang

VISA APPLICANT:  Mr Hua Yang

CASE NUMBER:  1803895

HOME AFFAIRS REFERENCE(S):          BCC2017/2607882

MEMBER:Adrienne Millbank

DATE:4 September 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 143 visa:

·cl.143.230 of Schedule 2 to the Regulations

Statement made on 04 September 2020 at 12:25pm

CATCHWORDS

MIGRATION – Contributory Aged Parent (Migrant) (Class CA) visa – Subclass 864 (Contributory Aged Parent) – health requirements for non-migrating family member – Medical Officer of the Commonwealth opinion updated upon review – decision under review remitted       

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 143.230; Public Interest Criterion 4005

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 January 2018 to refuse to grant the applicant a Contributory Parent (Migrant) (Class CA) visa under s.65 of the Migration Act 1958 (the Act). The applicant applied for the visa on 13 June 2017. The delegate found the applicant did not meet a criterion, cl.143.230, for the grant of the visa under the Migration Regulations 1994 (the Regulations).

2. The delegate made the decision on the basis of an opinion of a Medical Officer of the Commonwealth (MOC), dated 18 September 2017, confirmed in a further MOC opinion dated 2 November 2017, that a non-migrating family member of the applicant did not meet the relevant health criterion, Public Interest Criterion (PIC) 4005.

3. On 7 August 2020 the Tribunal wrote to the applicant advising him that it considered a further MOC should be obtained because the earlier opinion was not current. The Tribunal advised the applicant that the Department updated its procedural instructions for MOC opinions assessing health criteria PIC 4005 and 4007 on 1 July 2019, and that the changes have effect on all MOC opinions made before 1 July 2019. On 11 August 2020 the applicant advised, through his representative, that he wished to obtain a further MOC.

4. On 3 September 2020 the Department advised the Tribunal that the outcome of the further MOC requested by the Tribunal was that the member of the family unit meets the health requirement. The Department provided to the Tribunal a MOC opinion dated 3 September 2020, which is that the member of the family unit has been assessed against PIC 4005 and meets the health requirement for a permanent stay in Australia.

5. The Tribunal must accept the MOC opinion. In light of the new evidence received, that the non-migrating family member meets the health requirement in PIC 4005, the Tribunal is satisfied that the criterion, cl.143.230, is met and has concluded that the matter should be remitted for reconsideration.

6. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

   DECISION

7. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 143 visa:

   ·cl.143.230 of Schedule 2 to the Regulations

   Adrienne Millbank
   Member