2416045 (Migration)

[2024] AATA 3745

2416045 (Migration) [2024] AATA 3745 (19 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2416045

MEMBER:Michael Judd

DATE:19 September 2024

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for Student (Temporary) (Class TU) visa for reconsideration with respect to the first named applicant, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:

·PIC 4005(1) for the purposes of cl 500.217 of Schedule 2 to the Regulations.

The Tribunal remits the application for Student (Temporary) (Class TU) visa for reconsideration with respect to the second named applicant, with the direction that the second named applicant meets the following criteria for a Subclass 500 (Student) visa:

·Clause 500.311 of Schedule 2 to the Regulations.

Statement made on 19 September 2024 at 5:45pm

CATCHWORDS  
MIGRATION – Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – applicant finalised health requirements with the outcome recorded as ‘Auto-cleared’– health criteria in Public Interest Criterion (‘PIC’) 4005 met – decision under review remitted 

LEGISLATION
Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 500.217, Schedule 4, Public Interest Criterion (‘PIC’) 4005

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 28 May 2024 to refuse to grant the primary and secondary applicants Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 7 December 2023. The delegate refused to grant the visas on the basis that the first named applicant (now referred to as the primary applicant) did not satisfy cl 500.217 of Schedule 2 to the Migration Regulations 1994 (Cth) (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.

   Delegate’s reasons for decision – the primary applicant

   ‘It is important for Australia and for the continuation of many successful visa programs that
   public health risks and health costs are not unduly increased by visa holders (whether
   permanent or temporary). For this reason, applicants for visas to visit, or migrate to, Australia are required to meet certain health requirements. These requirements help ensure that:

   ● risks to public health in the Australian community are minimised
   ● public expenditure on health and community services is contained and
   ● Australian residents have access to health and other community services.

   Clause 500.217 requires the applicant to provide the Minister with evidence that satisfies a range of public health criteria (PIC) including criterion 4005. In order to satisfy PIC 4005, the applicant is required to provide satisfactory medical and x-ray examination results.

   On 7 December 2023, the applicant was requested via email and provided 28 days to
   complete their medical and x-ray examinations for the purpose of being granted a Student
   visa. At time of decision, searches conducted on departmental systems reveals the applicant has not provided evidence of having organised a valid health examination or having completed a medical examination in relation to this matter. It is considered that ample time has been afforded to the applicant for a response. Therefore the applicant does not meet public interest criteria 4005 and consequently does not satisfy clause 500.217

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The key issue in this review is whether the primary visa applicant meets Public Interest Criterion (PIC) 4005 as required by the criteria for the grant of the visa. The secondary applicant’s position is dependent upon this being satisfied. 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 visa application was refused because the applicant had not provided evidence of having undergone the requisite medical assessment.

   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 Migration (Required Medical Assessment) Amendment Instrument (LIN 23/042) 2023 (as amended by IMM 15/144) (the instruments). The instruments set out classes of persons based on countries (grouped according to risk) of which the applicant is a citizen, or where an applicant has recently spent time. The applicant is a citizen of India. 

6. Following outreach by the Tribunal, the applicants provided a receipt for BUPA Medical assessments on 26/8/24 (DOC ID:[deleted]) - ICSE checks confirm the applicants were 'Health Auto Cleared' on the 19th and 20th August 2024.

7. The Tribunal has satisfied itself that the primary applicant is in the class of persons specified in the instruments who is a citizen of a country or who has spent three or more consecutive months during the last five years in a country or countries that is not listed in Column A of Schedule 1 to this Instruments and has now undertaken the specified tests. For these reasons the requirements in PIC 4005(1)(aa) are met with respect to the primary applicant. With respect to the secondary applicant, the Tribunal is now satisfied that she satisfies the requirements of clause 500.311.  

8. Given the findings above, the appropriate course is for the Tribunal to remit the matters to the Minister for reconsideration of the remaining criteria for the visa.

   DECISION

9. The Tribunal remits the application for Student (Temporary) (Class TU) visa for reconsideration with respect to the first named applicant, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:

   ·PIC 4005(1) for the purposes of cl 500.217 of Schedule 2 to the Regulations.

10. The Tribunal remits the application for Student (Temporary) (Class TU) visa for reconsideration with respect to the second named applicant, with the direction that the second named applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·Clause 500.311 of Schedule 2 to the Regulations.

    
    

    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.