Yu (Migration)

[2020] AATA 2799

Yu (Migration) [2020] AATA 2799 (12 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Fang Yu
Mr Yanzhen Chen

CASE NUMBER:  1811146

HOME AFFAIRS REFERENCE(S):          CLF2016/2272

MEMBER:Adrienne Millbank

DATE:12 March 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the applications for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 864 visa:

·cl.864.227 of Schedule 2 to the Regulations

The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 12 March 2020 at 9:40am

CATCHWORDS
MIGRATION – Contributory Aged Parent (Residence) (Class DG) visa – Subclass 864 (Contributory Aged Parent) – health criteria – secondary applicant passed away – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 864.227 Schedule 4, PIC 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 to refuse to grant the applicants Contributory Aged Parent (Residence) (Class DG) visas under s.65 of the Migration Act 1958 (the Act). The applicants applied for the visas on 7 January 2016. The delegate refused to grant the visas on 6 April 2018.

2. The first-named and primary applicant (the applicant) was not the holder of a substituted Subclass 600 visa at the time of application and therefore each applicant was required to meet the health requirements outlined in Public Interest Criterion (PIC) 4005. On 13 October 2016 the Department requested medical examination reports for both the primary and the secondary applicant. On 7 November 2016 the secondary applicant’s health requirement was finalised by the Medical Officer of the Commonwealth (MOC) as Does Not Meet. There is no information or evidence before the Tribunal to indicate that the primary applicant does not meet the health requirement.

3. The delegate made the decision to refuse the applications on the basis that the secondary applicant, who made a combined application with his spouse (the primary applicant), failed his medical assessment and did not meet the health requirement in PIC 4005. Because the second-named applicant did not meet the health requirement and was a member of the applicant’s family unit, the delegate found that the applicant did not meet cl.864.227.

4. On 4 March 2020 the Tribunal received advice from the parties’ representative that the secondary applicant is deceased. A copy of a Queensland Death Certificate was provided, dated 13 March 2019, certifying that the secondary applicant died on 26 February 2019 in the Mater Hospital in Brisbane. Therefore, the applicant does not have a family member who does not meet the health requirement. In light of the new evidence received, the Tribunal is satisfied that the criterion is met by the primary applicant as there is no longer a member of the family unit that does not satisfy the public interest criteria, and has concluded that the matter should be remitted for reconsideration.

5. 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

6. The Tribunal remits the application for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 864 visa:

   ·cl.864.227 of Schedule 2 to the Regulations

   The Tribunal has no jurisdiction with respect to the second named applicant.

   Adrienne Millbank
   Member