Zeng (Migration)

[2018] AATA 1601

Zeng (Migration) [2018] AATA 1601 (4 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Zheng Zeng

VISA APPLICANT:  Mrs Lijun Qu

CASE NUMBER:  1724751

DIBP REFERENCE(S):  OSF2014/064236

MEMBER:Mary Urquhart

DATE:4 May 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Contributory Parent (Migrant) (Class CA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 143 (Contributory Parent) visa:

·PIC 4005(1) for the purposes of cl.143.225 of Schedule 2 to the Regulations.

Statement made on 04 May 2018 at 11:17am

CATCHWORDS
Migration – Contributory Parent (Migrant) (Class CA) visa – Subclass 143 (Contributory Parent) visa – Heath requirements – Tribunal requested a further Medical Officer of the Commonwealth opinion – “Meets Public Health Requirements for permanent stay in Australia”– Decision under review remitted for consideration

LEGISLATION
Migration Act 1958 ss 65, 338, 347, 360
Migration Regulations 1994 r 2.25A Schedule 2 cl 143.225 Schedule 4 Criteria 4005

CASES
Ramlu v MIMIA [2005] FMCA 1735
Robinson vMIMIA [2005] FCA 1626

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 on 2 October 2017 to refuse to grant the visa applicant a Contributory Parent (Migrant) (Class CA) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, Mrs Lijun Qu, a national of the Peoples’ Republic of China born 10 December 1961 applied for the grant of a Contributory Parent (Migrant) (subclass CA143) visa on 8 October 2014 on the basis that she is the parent of the sponsor and review applicant Mr Xheng Zeng.

3. On 5 May 2017 the Medical Officer of the Commonwealth (MOC), Melbourne office, assessed the applicant Lijun Qu as ‘not meeting the health requirement’.

4. On 5 May 2017 an ‘Invitation to Comment’ letter was e-mailed to the migration agent providing an opportunity to provide further medical information. On 25 May 2017 further medical information was provided to the Department which was then provided to the Medical Officer of the Commonwealth (MOC) on the same day.

5. On 29 May 2017 the Medical Officer of the Commonwealth (MOC), Melbourne office assessed the further medical information provided an opinion that the applicant did “not meet the health requirement” and as set out above the delegate decided to refuse to grant the visa.

6. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.143.225 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4005 of Schedule 4 to the Regulations was not met.

7. The review applicant Mr Zheng Zeng applied to the Tribunal for a review.

8. The review applicant was represented in relation to the review by his registered migration agent. The Tribunal finds that the delegate’s decision is a reviewable decision under s.338 (2) of the Act. The Tribunal finds that the applicant has made a valid application for review under s.347 of the Act.

9. On 16 January 2018 the applicant requested an opportunity to obtain a further opinion of the MOC and provided further recent medical reports in support of the request.

10. On 16 April 2018 the Tribunal requested a further MOC opinion.

11. Subsequently the Tribunal received information that the applicant’s medical examination results were finalized on 24 April 2018.The result of the examination being that the applicant “meets Public Health Requirements for permanent stay in Australia”.

12. Under subsection 360(2) (a) of the Act the Tribunal considered that it should decide the review in the visa applicant's favour on the basis of the evidence before it.  As a result, it was therefore unnecessary to proceed with a Tribunal hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in this review is whether the visa applicant meets Public Interest Criterion (PIC) 4005 as required by the criteria for the grant of the visa. Public Interest Criterion 4005, as it applies to this case, is extracted in the attachment to this decision. It requires the applicant, in certain circumstances, to undergo medical assessment, and to be free of certain diseases or conditions that may impact on the community.

15. Under migration law, a visa cannot be granted unless the applicant meets the legal requirements that are specified in the Act and Regulations.

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

16. Public interest criterion 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.

17. Public interest criterion 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 certain temporary visas, the applicant is excluded from the requirement to be free from a disease or condition likely to result in significant cost in the areas of health care and community services: PIC 4005(3).

18. 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 Medical Officer of the Commonwealth (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).

19. As the applicant in this case has applied for a permanent visa the exclusion provision in PIC 4005(3) does not apply and the applicant in this case must satisfy PIC 4005(1) (c).

20. On the evidence before the Tribunal, a MOC opinion is required.

21. As set out above the applicant’s medical examination results were finalized on 24 April 2018.The result of the examination being a MOC opinion that the applicant “meets Public Health Requirements for permanent stay in Australia”.

22. The Tribunal has had regard to the Federal Court decisions in Robinson vMIMIA [2005] FCA 1626 and Ramlu v MIMIA [2005] FMCA 1735 and is satisfied that the MOC did not apply the wrong test in this matter.

23. The Tribunal is bound to accept the final assessment of the MOC to be correct for the purposes of deciding whether the applicant satisfies the health criterion.

24. The Tribunal finds, on the basis of the evidence before it, that the applicant meets the health requirement set out in PIC4005. The Tribunal is, therefore, satisfied that the applicant meets PIC 4005 for the purposes of cl.143.225 of Schedule 2.

25. Accordingly, based on the opinion of the MOC, the applicant satisfies Public Interest Criterion 4005(1) (a), (b) and (c).

26. Given the findings above, the appropriate course is for the Tribunal to remit the matter to the Minister for reconsideration of the remaining criteria for the visa.

    DECISION

27. The Tribunal remits the application for a Contributory Parent (Migrant) (Class CA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 143 (Contributory Parent) visa:

    ·PIC 4005(1) for the purposes of cl.143.225 of Schedule 2 to the Regulations.

    Mary Urquhart
    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.