1609537 (Migration)

[2016] AATA 4755

1609537 (Migration) [2016] AATA 4755 (1 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gabriel Chew Han Tin

CASE NUMBER:  1609537

DIBP REFERENCE(S):  CLF2012/49296

COUNTRY OF REFERENCE:                  Singapore

MEMBER:Ian Garnham

DATE:1 December 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820.223 (Spouse) visa:

·PIC 4007 for the purposes of cl.820.223 of Schedule 2 to the Regulations.

Statement made on 01 December 2016 at 10:18am

CATCHWORDS

Migration – Partner (Residence) (Class BS) visa – Subclass 820 – Medical examination provided

LEGISLATION

Migration Act 1958
Migration Regulations 1994, cl.820.223(1)(a), PIC 4007

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 7 June 2016 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 6 March 2012. The delegate refused to grant the visa as the applicant did not satisfy cl.820.223(1)(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4007 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

4. The issue in this review is whether the visa applicant meets Public Interest Criterion (PIC) 4007 as required by the criteria for the grant of the visa. Public Interest Criterion 4007, 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. This last requirement may be waived in certain circumstances.

5. The applicant in this case did not provide required medical examination evidence.

6. Since the delegate’s decision was made the review applicant has attended a medical assessment and the results of that assessment have been provided to the department.  The Tribunal was advised by emails from the department dated 9 and 29 November 2016[1] that the review applicant now meets the requirements of PIC 4007.

   [1] at FF 27 & 31 AAT file

7. Given this finding the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a subclass 820 visa.

   Has the applicant undertaken a medical assessment (PIC 4007(1)(aa))?

   DECISION

8. The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Spouse) visa:

   ·PIC 4007(1) for the purposes of cl.820.223(1)(a) of Schedule 2 to the Regulations.

   Ian Garnham

   
   

   Member

   ATTACHMENT

   Migration Regulations 1994

   Schedule 4

   4007(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)    subject to subclause (2) — 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 (1A); 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.

   (1A)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.

   (1B)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 (1A)(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.

   (2)The Minister may waive the requirements of paragraph (1)(c) if.

   (a)    the applicant satisfies all other criteria for the grant of the visa applied for; and

   (b)    the Minister is satisfied that the granting of the visa would be unlikely to result in:

   (i)undue cost to the Australian community; or

   (ii)undue prejudice to the access to health care or community services of an Australian citizen or permanent resident.