Zhang (Migration)

[2019] AATA 6846

Zhang (Migration) [2019] AATA 6846 (9 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Jie Zhang

VISA APPLICANT:  Mr Jinhe Zhang

CASE NUMBER:  1813745

DIBP REFERENCE(S):  2014/097883 OSF2014/097883

MEMBER:Amanda Mendes Da Costa

DATE:9 July 2019

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)(c) for the purposes of cl.143.225 of Schedule 2 to the Regulations.

Statement made on 09 July 2019 at 12:17pm

CATCHWORDS

MIGRATION – Contributory Parent (Migrant) (Class CA) – Subclass 143 (Contributory Parent) – health criteria – MOC opinion – cost to the Australian community – additional medical evidence provided – no treatment required  currently or in the foreseeable future – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 65
Migration Regulations 1994 (Cth), r 2.25A; Schedule 2, cl 143.225; Schedule 4, PIC 4005

CASES

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

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 19 April 2018 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 visa applicant applied for the visa on 30 December 2014. 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(1)(c)(ii)(A) of Schedule 4 to the Regulations was not met.

3. On consideration of the both the files of the Department and the Tribunal, the Tribunal has determined that it can make a decision in the matter without the necessity of a hearing. 

4. The review applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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. The applicant in this case the delegate found that the visa applicant did not meet the prescribed health requirements as set out in PIC 4005(1)(c)(ii)(A) of Schedule 4 to the Migration Regulations.

   Is the applicant free from the relevant diseases or conditions which would be likely to require health care (PIC 4005(1)(c))?

7. 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 specified temporary visas, certain specified health care and community service are excluded from this consideration: PIC 4005(3).

8. In determining whether a person meets PIC 4005(1)(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).

9. On the evidence before the Tribunal, a MOC opinion is required in relation to the visa applicant. 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 criterion 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.

10. The Tribunal notes that the visa applicant’s health condition is asymptomatic chronic viral Hepatitis B.

11. The Tribunal further notes that on 23 October 2017, a MOC issued the visa applicant with a “Does Not Meet” outcome for the health requirements under PIC4005(1)(c)(ii)(A).

12. On 13 December 2017 the Department advised the visa applicant that he did not meet the requirements of PIC4005(1)(c)(ii)(A).  He was invited to comment and provide additional supporting medical information regarding the health requirement.

13. On 4 January 2018 the visa applicant provided the Department with additional medical reports regarding the visa applicant’s health and this information was sent to a MOC for assessment.

14. On 10 January 2018 (after taking the further information into consideration) a MOC made a decision that the visa applicant did not meet the requirement of PIC4005(1)(c)(ii)(A).

15. On 30 November 2018 (subsequent to the delegate’s decision) the visa applicant provided the Tribunal with additional medical reports regarding the visa applicant’s health and this information was sent to a MOC for assessment.

16. On 28 December 2018 a MOC made a decision that the visa applicant did not meet the requirements of PIC 4005(1)(c)(ii)(A).

17. On 2 May 2019 the visa applicant provided the Tribunal with an additional medical report regarding his health.  This information was subsequently provided to a MOC for assessment.

18. Relevant medical opinion was subsequently provided to the Tribunal, showing that the prognosis from the visa applicant’s Hepatitis B is excellent and he does not need to have any treatment currently and most likely does not need it in the foreseeable future either.

19. On 30 May 2019 the Tribunal received the outcome of the MOC’s further assessment of the visa applicant’s health in which the MOC opines that the visa applicant meets the health requirement of PIC4005(1)(c)(ii)(A) subject to him providing a signed undertaking in accordance with PIC4005(1)(d).

20. Given the visa applicant’s compliance with the requirements of PIC4005 pertaining to complying with any requests to attend medical examinations, the Tribunal is satisfied that the visa applicant will comply with any request for an undertaking in respect of such examinations. 

21. Accordingly, based on the opinion of the MOC, the applicant satisfies public interest criterion 4005(1)(c)(ii)(A).

22. 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

23. 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)(c) for the purposes of cl.143.225 of Schedule 2 to the Regulations.

    Amanda Mendes Da Costa
    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.