1607027 (Migration)

[2016] AATA 4356

1607027 (Migration) [2016] AATA 4356 (1 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Mei-yun Huang

CASE NUMBER:  1607027

DIBP REFERENCE(S):  bcc2015/4004849

MEMBER:Tony Caravella

DATE:1 September 2016

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 01 September 2016 at 2:48pm

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 May 2016 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 22 December 2015. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.570.224(a) 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. On 17 May 2016, the applicant applied to this Tribunal for a review of the delegate’s decision.

4. On 16 August 2016, having considered the material before it, the Tribunal found the applicant had not provided evidence of the results of a Chest x-ray and that it was therefore unable to make a favourable decision on the information before it at that time.  Therefore, on 16 August 2016, the Tribunal wrote to the applicant and invited her to appear before the Tribunal on 1 September 2016 to give evidence and present arguments. The hearing invitation stated, amongst other things, that Regulation 570.224 requires the applicant to provide the Minister with evidence that she satisfies a range of criteria including criterion 4005. The hearing invitation explained that to satisfy criterion 4005, an applicant is required to provide satisfactory results of a medical and x-ray examination, and explained that as it appeared the applicant had not provided this the Tribunal invites the applicant to provide it to the Tribunal before or at the hearing.

5. The hearing invitation referred to in the preceding paragraph was sent to the applicant’s e-mail address which was provided to the Tribunal.  Further, two SMS messages reminding the applicant of the hearing were sent to the applicant’s mobile telephone number on 25 August 2016 and on 31 August 2016, respectively.  In the hearing invitations, the applicant was advised that if she does not attend the scheduled hearing the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear before the Tribunal.

6. Section 362B of the Act provides that if an applicant has been invited under s.360 to attend a hearing and does not appear on the day on which, or at the time and place at which, she or he is scheduled to appear, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.  Alternatively, the Tribunal may dismiss the application without any further consideration of the application of information before the Tribunal. 

7. The power to make a decision on the review or to dismiss proceedings for non-appearance only arises if the hearing invitation complied with the relevant statutory requirements.

8. If a review applicant fails to appear at the time and date of the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it. If the Tribunal exercises the discretion in s.362B(1A)(a), the Tribunal must consider whether the written materials on the relevant Departmental and Tribunal files support the case the applicant seeks to make.

9. The applicant did not appear before the Tribunal on 1 September 2016 and did not contact the Tribunal to explain her non-appearance or to request that the hearing be postponed. The Tribunal also observes from the Department’s file that the delegate requested relevant documents, including evidence that she had taken a Chest x-ray examination, however, the applicant failed to take up that opportunity.  Further, the Tribunal notes from the Department’s file that the delegate first requested the applicant provide the evidence of the medical examination, including the chest x-ray results in a letter dated 23 December 2015.  The applicant has therefore had some 8 months to comply with the request.  In all these circumstances, and pursuant to s.362B(1A) of the Act, the Tribunal has decided to make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

10. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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 was requested (by letter dated 23 December 2015) by the Department to undergo a medical examination and a chest x-ray examination.  The applicant was advised to provide evidence of undergoing these tests within 28 days of being taken to have received the letter dated 23 December 2015.  As at the date of the delegate’s decision, the applicant had not provided evidence that they meet the public health criteria in PIC 4005. 

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

12. 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 15/144 Required medical assessment.

13. The Tribunal finds the applicant is a national of Taiwan.  She arrived in Australia on 7 October 2015 and as at the date of this decision has been onshore for almost 11 months. 

14. Having regard to IMMI 15/144, the Tribunal finds the applicant is in a class of persons being a citizen of, or who has spent three or more consecutive months during the last five years in a country that is not listed in Column A of Schedule 1 to IMMI 15/144. The applicant therefore is in a class or persons falling into paragraph 2(c) of IMMI 15/144. Paragraph 2(d) of IMMI15/144 provides that the medical assessment specified in Columns B,C,D and E that appear in Schedule 2 of IMMI 15/144 apply to a class of persons specified at paragraph 2(c) of IMM1 15/144.

15. Column C, of Schedule 2, of Instrument IMM 15/144, specifies the medical assessment in the case where the applicant seeks a temporary stay in Australia of six months or more. The Tribunal finds the applicant falls within the category of persons seeking a temporary stay in Australia of 6 months or more, indeed, on the evidence before the Tribunal she has been in Australia for 11 months so far. Column C, of Schedule 2, of Instrument IMM 15/144 specifies that the medical assessment for a person in the class which the applicant falls within includes a medical examination, chest x-ray and any additional medical assessments specified in Column E of Schedule 2. In other and simpler words, to qualify for the visa which the applicant seeks, the applicant must, as a minimum, provide a specified chest x-ray examination result.

16. The Tribunal examined the relevant report from the Department’s ICSE database to which it has access.  It found the Department has no record of the applicant providing a relevant x-ray examination report.  Further, there is no evidence provided by the applicant to this Tribunal that she has undergone the required x-ray examination, or even that she is booked in to undertake such an x-ray within a reasonable period of time.  

17. Based on all the evidence before it, the Tribunal finds the applicant has failed to provide evidence of having undertaken the relevant medical examination or chest x-ray.  She therefore does not meet the prescribed requirements in respect of PIC 4005(1)(aa).  She therefore fails to meet PIC 4005 generally.

18. As the applicant has not satisfied the requirements of PIC 4005, the Tribunal finds the applicant fails to meet cl.570.224(a) of Schedule 2 to the Regulations. The Tribunal must affirm the decision under review.

    DECISION

19. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

    Tony Caravella
    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.