1511206 (Migration)

[2016] AATA 4392

1511206 (Migration) [2016] AATA 4392 (6 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Zeljka Lonac

VISA APPLICANT:  Mrs Ljubica Vucic

CASE NUMBER:  1511206

DIBP REFERENCE(S):  2006/101531

MEMBER:Lisa Lo Piccolo

DATE:6 September 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Parent (Migrant) (Class AX) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 103 (Parent) visa:

·PIC 4005(1)(aa) for the purposes of cl.103.224 of Schedule 2 to the Regulations.

Statement made on 06 September 2016 at 4:03pm

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 8 June 2015 to refuse to grant the visa applicant a Parent (Migrant) (Class AX) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 13 December 2006. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.103.224 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.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

2. The applicant in this case was requested to undertake a medical examination with the Department’s medical service provider on 8 April 2014.  However, the applicant did not fulfil the Department’s request to undertake a health assessment within the timeframe outlined.  Accordingly, on 8 June 2015, a delegate of the Minister refused the application because the delegate was not satisfied on the available evidence that the applicant met Public Interest Criteria 4005 as she had failed to comply with the request to undertake a health examination, and therefore subclauses 103.224 of the Regulations.  A copy of the delegate’s decision record was provided to the Tribunal by the review applicant.

3. The review applicant was not invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review because the Tribunal was able to decide the review in the applicant's favour on the basis of the material before it.

Has the applicant undertaken a medical assessment (PIC 4005(1)(aa))?

1. Public Interest Criterion 4005(1)(aa) requires that if the applicant is in a specified class of persons, he or she must undertake the specified medical assessment and be assessed by a specified person unless a Medical Officer of the Commonwealth (MOC) decides otherwise. The relevant class of persons and assessments are specified in IMMI 11/085. 

2. On 13 December 2006, the applicant lodged with the Department the application under review.  As set out in the decision record of the delegate, the application had been released from the queue to be assessed for the grant of the visa.  The Department requested that the applicant undertake a medical examination with the Department’s medical service provider on 8 April 2014.  However, the applicant did not fulfil the Department’s request to undertake a health assessment within the timeframe outlined.  Accordingly, on 8 June 2015, a delegate of the Minister refused the application because the delegate was not satisfied that the applicant met Public Interest Criteria 4005, and therefore subclause 103.224 of the Regulations.

3. On 5 September 2016, the Department provided the Tribunal with information which indicates that the visa applicant has undergone a relevant health examination with panel physicians nominated by the Department.  

Findings and reasons

1. The Tribunal finds that the Department requested the visa applicant undertake the medical assessment as required.

2. The Tribunal finds that the applicant is a national of Croatia and Department records indicate that in the past 5 years the applicant has spent three (3) or more consecutive months in Croatia.  Therefore, the Tribunal finds that that the applicant is in a class of persons specified by the Minister who must undertake a medical assessment and be assessed by specified persons: IMMI 15/144.

3. The Tribunal is satisfied from the information provided to the Tribunal by the Department that the applicant has now undertaken the relevant medical assessment specified in this instrument and that the assessment was carried out by the relevant person specified in the instrument.  The Tribunal therefore finds therefore that the applicant satisfies PIC 4005(1)(aa).

4. For these reasons the requirements in PIC 4005(1)(aa) are met.

5. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for the visa.

DECISION

1. The Tribunal remits the application for a Parent (Migrant) (Class AX) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 103 (Parent) visa:

   ·PIC 4005(1)(aa) for the purposes of cl.103.224 of Schedule 2 to the Regulations.

Lisa Lo Piccolo
Member

ATTACHMENT

Migration Regulations 1994

Schedule 4

1. (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)Sub-subparagraph (1) (c) (ii) (A) does not apply if:

   (a)the applicant would not be eligible for the provision of the health care or community services; and

   (b)the ineligibility would be due to the temporary visa for which the applicant is applying being of a particular subclass; and

   (c)the subclass is not specified by the Minister in an instrument in writing made under subparagraph (2) (b) (ii).