[2004] MRTA 712

CATCHWORDS: Review of visa refusal - Subclass 804 (Aged Parent) - primary visa applicant fails health requirement - effect on secondary visa applicant.

DECISION: The Tribunal affirms the decision under review, finding that the applicants are not entitled to the grant of Aged Parent (Residence) (Class BP) visas.

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the delegate). Mr Kurt Hans Rudi KAENDLER (the primary visa applicant), a national of Germany, born on 5 August 1915 applied for an Aged Parent (Residence) (Class BP) visa on 9 October 2001 (D1 f 31). His wife Mrs Annaliese Kaendler (the secondary visa applicant, but for the purposes of this decision referred to as the applicant), born on 23 June 1912, was included in the application. The delegate decided to refuse to grant the visas on 29 September 2003 (D1 f 61).

2. The applicant lodged an application for review with the Migration Review Tribunal (the Tribunal) on 23 October 2003 (T1 f 13). The decision is reviewable by the Tribunal and the application for review was properly made by a person with standing to apply for review.

3. The Migration Act 1958 (the Act) and the various Regulations made under that Act, principally the Migration Regulations 1994 (the Regulations), provide for different classes of visas, and the criteria for the grant of visas. In reaching a decision, the Tribunal is bound by the Act, the various Regulations and written directions issued by the Minister under section 499 of the Act. Some matters may be the subject of policy, as found in publications such as the Procedures Advice Manual 3 (PAM3) and the Migration Series Instructions (MSIs), produced by the Department of Immigration and Multicultural and Indigenous Affairs (the Department). The Tribunal is required to have regard to policy and apply it unless there are cogent reasons for departing from policy.

4. The Tribunal has the power to affirm, vary or set aside a decision to refuse to grant a visa. It also has the power to remit an application for a visa to the Department for reconsideration. Such a remittal may be accompanied by directions that a visa applicant meets one or more of the criteria for a visa. It is then a matter for the Minister or a delegate to consider any remaining criteria. A review by the Tribunal is generally limited to a consideration of whether a visa applicant meets one or more essential criteria, with the application remitted or the decision affirmed on that basis.

5. Generally, where members of the same family unit have applied for visas together, at least one of the visa applicants must meet the `primary criteria' for the visa. The other applicants need only meet the `secondary criteria'.

6. The criteria and policy immediately relevant to this review are:

Part 804 of Schedule 2 to the Regulations

Regulation 2.25A Referral to Medical Officers of the Commonwealth

7. The Tribunal generally has regard to the Regulations as they stood at the time of a visa application. However, subsequent amendments may apply in some circumstances.

D1 - Departmental case file F01/56891, folio numbered 1- 65.

9. The visa application in this case was made on the basis that the applicants were the aged parents of their daughter Ms Anneli KAENDLER (the nominator), an Australian citizen since July 1989 (D1 f 26, 5).

10. The application showed that the applicants had two children living in Australia and two children living in Germany. Australian passports were provided to demonstrate that two of their children were Australian citizens and certified translations of their birth certificates confirmed that they were the natural adult children of the applicants.

11. On 5 December 2002 a medical officer of the Commonwealth (MOC) found that the applicant met the health requirement.

12. On 16 January 2003 a Medical Officer of the Commonwealth found that the primary visa applicant did not meet the health requirement, stating:

In my opinion, this applicant fails to meet the above regulation [4005] for the following reasons:

Mr Kaendler is an 87 year old man diagnosed with near end-stage renal failure. Subparagraphs 4005(c)(i) and (ii) of the Regulations apply to a person with such a condition; i.e. such a person would require health care and/or community services during the period of the proposed stay in Australia. Provision of health care and/or community services in a case such as this would be likely to result in a significant cost to the Australian community regardless of whether the health care and/or community services will actually be used. Therefore the applicant does not meet Public Interest Criterion 4005.

13. By letter dated 24 January 2003 the primary visa applicant was advised of the MOC's opinion and that there was no provision to waive the health criterion. The primary visa applicant was advised that, in the event that his application was refused, he may be eligible to be granted a Medical Treatment (Long Stay) visa.

14. On 29 September 2003 the delegate refused the application on the basis that the primary visa applicant did not meet the health criterion set out in public interest criterion 4005. Consequently the primary visa applicant failed to satisfy clause 804.225 which required that the primary visa applicant satisfy a number of public interest criteria including the health requirement set out in public interest criterion 4005 in Schedule 4 to the Migration Regulations.

15. On 23 October 2003 the applicant lodged an application for review of the delegate's decision with the Tribunal. In the application for review, the applicant stated:

My visa application was joined with my husband's application. Our application has been rejected due to my husband failing the medical. Whilst I am planning to stay with my husband, you have to know that he is very sick and can no longer travel and will more than likely die before me. Because he cannot travel, I have jointly with him applied for a Medical visa. After his death I would like to continue to live with my children in Australia. I have now received conflicting advice from different immigration officers as to what course of action is open to me, that I can/cannot stay with my husband on the medical visa, that I can/cannot apply for another visa after his death.

As I believe that I passed my medical, I would like for my application to be considered in isolation to my husband's so that I can rest assured of my long-term future and concentrate on supporting my husband to the end.

16. The Tribunal convened a hearing on 4 December 2003 at which the applicant gave evidence in person. The applicant stated that she was born on 23 June 1912. She had a daughter and a son in Australia and two sons in Germany. She did not have any other children in any other countries. She and her husband were still married.

17. The applicant confirmed that she had met the health requirement, but her husband had not. Although her husband had undergone further medical treatment since his medical assessment was made, he had not made a further medical assessment for immigration purposes. His condition was deteriorating. He was unable to travel and she was unable to leave him alone. They had been married for 64 years. She could not return to Germany without him. She had only grandchildren in Germany and no other life there. She did not know what she would do on her own in Germany. Her son and daughter were living in Australia and the grandchildren could come to Australia to visit her. There was no reason for her to return to Germany. She was now over ninety and it was becoming increasingly difficult to travel.

18. The nominator confirmed that she was an Australian citizen and had resided in Australia since 1974. If the applicant returned to Germany, it would kill the primary visa applicant. The applicant would also not last long if she were separated from the primary visa applicant. They had no home to go to in Germany. They had been renting an apartment when they had left three years previously and the nominator's brothers did not want to care for them. The applicant would have to live in a home for the aged. The applicants had been married for 64 years.

19. The nominator stated that she would be devastated if the applicant had to return to Germany. She would be worried about the applicant because the applicant could not cope on her own.

20. The applicant's son, Klaus Kaendler, said he would not know what he should do if the applicant were required to return to Germany. He had to look after his father but the applicant could not look after herself. The primary visa applicant and the applicant would not last for very long if they were separated. They had not been separated for more than a weekend since the second world war. The applicant would not understand why they were apart.

21. The applicant would not be able to cope if she had to travel alone. She would get lost and needed to be accompanied. She may also try to harm herself if she were separated from the primary visa applicant. The primary visa applicant might pass away any time. They had made the application in the event that the primary visa applicant did pass away, so that the applicant would be able to remain in Australia.

22. Petar Djuric, a friend of the nominator, stated that the primary visa applicant and the applicant were a devoted couple. During their time in Australia, they had come to know many people in Australia and they had become attached to the applicant. The applicant would not survive if she returned to Germany, nor would the primary visa applicant. The applicant would die of a broken heart. It would be terrible to keep them apart. They had been lucky that the primary visa applicant had survived for so long. They had both received a new lease of life on arriving in Australia. Their sons in Germany had not wanted to care for them and wanted to put them in a home for the aged.

23. If the applicant remained in Australia she would have a strong support network through the friends of her son and daughter.

24. At the time the visa applications were lodged, Aged Parent (Residence) (Class BP) contained only one subclass: 804 (Aged Parent). To succeed in an application for a subclass 804 visa, a secondary visa applicant must meet clause 804.321 which requires:

804.321 The applicant is a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 804 visa.

25. The primary visa applicant in this case was found not to meet a primary criterion and his application for a subclass 804 visa was refused. He has not applied for a review. Therefore, as a secondary visa applicant, the applicant would not meet clause 804.321.

26. In light of the circumstances of this case, the Tribunal has considered whether the applicant may be eligible to be assessed against the primary criteria in her own right. On the question of who is entitled to be considered against the primary criteria, policy offers the following guidelines:

55 IF THE VISA HAS BOTH SCHEDULE 2 PRIMARY & SECONDARY CRITERIA

If the visa applied for has secondary as well as primary criteria, each applicant must satisfy either primary criteria or secondary criteria in order to satisfy prescribed criteria for visa grant - see regulation 2.03. In combined applications, at least one applicant must satisfy primary criteria.

Officers should keep the following in mind in deciding in which order to consider the visa subclasses and which (one) family unit member (if any) must satisfy primary criteria. This itself may depend on which visa subclass is being considered.

* that the main applicant (and, for certain permanent visa classes only, their spouse, if any) will present claims and supporting documentation in support of one visa subclass only and

* if a combined application is made, that the rest of the family unit will usually present supporting documentation (eg marriage certificate, birth certificates and/or evidence of dependency on the main applicant) in support of satisfying secondary criteria only.

If, as is usually the case, one (and only one) of the applicants must satisfy primary criteria, officers should decide who should be assessed (at least initially) against primary criteria and in which visa subclass by considering (against visa-specific criteria):

* the claims and supporting documentation provided by the main applicant

* in the name of which applicant the sponsorship/nomination (if any) has been completed

* for permanent visa classes only [other than Return (Residence)], the claims and supporting documentation provided by the main applicant's spouse (if any, and only if an applicant)

* the strength of the main applicant's (and, as described above, their spouse's) claims for each subclass.

As stated earlier, if a combined application is made, it is likely that the application form will have been completed by the applicant whom the family unit considers as having the strongest claim to a visa. However, officers should not assume that the main applicant (even if assessed to be a person who has to satisfy primary criteria) is necessarily the only applicant capable of satisfying primary criteria.

If an applicant does not satisfy secondary criteria and has not previously been assessed against the primary criteria, it will be necessary to assess them against primary criteria before a decision can be made on their application.

For permanent visa classes that have secondary criteria, it should be necessary for officers to assess only the main applicant and, if applicable, their spouse, against primary criteria. ...

* It is, of course, always open to officers to proceed with an application on the basis of the main applicant's spouse being the person who has to satisfy primary criteria if, at any time prior to decision, the spouse appears to have stronger claim than the main applicant to satisfying those criteria. (For guidelines on amending the data base, see the relevant DIMIA systems manual.)

27. In light of this guidance and in the absence of any legislative prohibition to the contrary, the Tribunal considers that the applicant should also be considered against the primary criteria. In order to be eligible for the visa, it is necessary for the applicant to meet all of the relevant criteria for the visa.

28. Clause 804.211 does not apply to the applicant. Clause 804.212 requires:

804.212 The applicant is nominated for the grant of the visa by an adult child of the applicant who is:

At the time of application, the applicant was nominated by her daughter, Anneli Kaendler, an adult child of the applicant who is a settled Australian citizen and the applicant would meet clause 804.212.

29. The application was made within 12 months of the expiry of the applicant's visitor's visa and clause 3002 is met. Therefore the applicant would have met clause 804.213.

30. At the time of application, clause 804.221 required that the applicant be an aged parent of the Australian citizen referred to in clause 804.212. Aged parent is defined in regulation 1.03 as a parent who is old enough to be granted an age pension under the Social Security Act 1991. The applicant was born in 1912 and is 91 years of age at the time of decision. She therefore meets the definition of an aged parent of the nominator and would meet clause 804.221.

31. Clause 804.223 requires that at the time of decision, the applicant satisfies the balance of family test. This test is defined in regulation 1.05:

(a) a person is a child of another person (the parent) if the person is a child, adopted child or step-child of:

(iii) a former spouse of the parent, if the child was born or adopted:

(A) before the parent became the spouse of the former spouse; or

(B) while the parent was the spouse of the former spouse; and

(b) if the whereabouts of a child of the parent are unknown, the child is taken to be resident in the usual country of residence of the parent.

(2) A parent satisfies the balance of family test if:

(i) lawfully and permanently resident in Australia; or

(b) the number of children of the parent who are lawfully and permanently resident in Australia or are holders of special category visas usually resident in Australia is:

(i) greater than, or equal to, the total number of children of the parent who are resident overseas; or

(ii) greater than the greatest number of children of the parent who are resident in any single overseas country.

[subregulation (3) is not relevant in this case].

32. The applicant has two Australian citizen children residing in Australia and two children residing in Germany. She therefore meets paragraph 105(2)(b)(i) and meets the balance of family test for the purposes of clause 804.223.

33. Clauses 804.224 and 804.225 have not been assessed by the Tribunal as the assurance of support does not appear to have yet been requested and clause 804.225 contains the character requirement, which is outside the Tribunal's jurisdiction. Additionally, the applicant's medical clearance has expired.

34. However, even if the applicant met those criteria, clause 804.226 requires:

804.226 (1) Each member of the family unit of the applicant who is an applicant for a Subclass 804 visa is a person who satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4009 and 4010.

(2) Each member of the family unit of the applicant who is not an applicant for a Subclass 804 visa is a person who:

(a) satisfies public interest criteria 4001, 4002, 4003 and 4004; and

(b) satisfies public interest criterion 4005, unless the Minister is satisfied that it would be unreasonable to require the person to undergo assessment in relation to that criterion.

35. Member of a family unit is defined in regulation 1.12

1.12. (1) Subject to subregulation (2), a person is a member of the family unit of another person (in this subregulation called the family head) if the person is:

36. In this case, the applicant and the primary visa applicant are spouses and the primary visa applicant remains a member of the applicant's family unit. If the primary visa applicant remains included in the application, his failure of the health requirement means that the applicant does not meet subclause 804.226(1). Even if the Tribunal can take his exclusion from the application for review to be a withdrawal from the application (which is debateable, considering that the matter has already been decided at the primary level), paragraph 804.226(2)(b) would require that he met the health criteria, whether or not he was included in the application. His failure of the health requirement means that the applicant would not meet subclause 804.226(2) (considering that the primary visa applicant has already undergone the health assessment, the Tribunal does not consider it unreasonable for him to do so).

37. In such circumstances, even if the applicant were to be considered against the primary criteria, despite appearing to satisfy most of the central criteria, she would still not be eligible for the visa on the basis of the primary visa applicant's health assessment.

38. The applicant and her husband have been married for 64 years and, but for her husband's illness, she would be likely to meet the relevant criteria. The nominator, Mr Kaendler and Mr Djuric gave strong and credible evidence as to the effect that separation would have on the applicant and the primary visa applicant and as to their own distress at the current circumstances. However, the Tribunal does not have any discretion to waive the health requirement, even if the applicant's spouse is considered not to be included in the application.

39. Given the findings made above, the Tribunal has no alternative but to affirm the decision under review.

40. The Tribunal affirms the decision under review, finding that the applicants are not entitled to the grant of Aged Parent (Residence) (Class BP) visas.