1604840 (Migration)

[2016] AATA 3848

1604840 (Migration) [2016] AATA 3848 (4 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Malakai Tadulala

CASE NUMBER:  1604840

DIBP REFERENCE(S):  bcc2016/1002287

MEMBER:Suhad Kamand

DATE:4 May 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 (Visitor) visa:

·PIC 4005(1)(aa) for the purposes of cl.600.213(1) of Schedule 2 to the Regulations.

Statement made on 04 May 2016 at 8:55am

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 21 March 2016 to refuse to grant the applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act). For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

2. The applicant applied for the visa on 9 March 2016. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.600.213 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

3. 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.

4. As at the time of the delegate’s decision record, dated 21 March 2016, the department had not received a response or any evidence that the applicant had undertaken the requested medical examination and chest E-ray examination. .

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

5. 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 14/042. Pursuant to that instrument, the applicant, a citizen of Fiji who is intending to stay temporarily in Australia, is required to undergo a chest X-ray examination and a medical examination.

6. In a letter dated 10 March 2016 the Department requested the applicant to make arrangements to undergo a medical examination and chest X-ray. In that letter he was directed to send the Department evidence of having made an appointment and to provide details of the date and time of his appointment by 17 March 2016.

7. Having not received any response by 21 March 2016, the delegate made a decision to refuse to grant the visa.

8. The Tribunal’s current examination of Departmental ICSE records indicates, however, that the results of the applicant’s health assessment were since received by the Department. This is consistent with the explanation and documentation provided to the Tribunal by the review applicant which, in summary, explains that he missed the response date specified in the Department’s letter as he was unable to open the Department’s correspondence on his phone; on opening that correspondence he made arrangements to undergo the heath tests requested in the department’s correspondence. This is evidenced further by correspondence from Bupa Medical Visa Services stating that the applicant underwent a chest x ray and medical examination on 29 March 2016.

9. Accordingly, on the evidence before it, the Tribunal finds that the applicant meets PIC 4005(1)(aa) and the appropriate course is to remit the matter to the Minister for reconsideration of the remaining criteria for the visa.

   DECISION

10. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 (Visitor) visa:

    ·PIC 4005(1)(aa) for the purposes of cl.600.213(1) of Schedule 2 to the Regulations.

    Suhad Kamand
    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.