Abecendario (Migration)

[2021] AATA 3943

Abecendario (Migration) [2021] AATA 3943 (8 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Owen Payas Abecendario
Ms Abegail Blanza Abecendario
Mr Olivier Blanza Abecendario
Miss Arwen Blanza Abecendario
Mr Vincent Kyle Blanza Abecendario
Mr Olwen II Blanza Abecendario
Mr Orren Blanza Abecendario

CASE NUMBER:  1926403

HOME AFFAIRS REFERENCE(S):          BCC2019/1999470

MEMBER:David Barker

DATE:8 October 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 visa:

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

Statement made on 08 October 2021 at 3:53pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – health criteria – medical assessments provided to tribunal – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), Schedule 2, cl 500.217, Schedule 4, criterion 4005(1)(aa)

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 Home Affairs to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act). The applicants applied for the visas on 18 April 2019. The delegate refused to grant the visas on 29 August 2019.

2. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.500.217 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. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicants on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. In order to satisfy criteria for a Student (Temporary) (Class TU) visa, namely c.500.217, an applicant must, if required, demonstrate that they meet a range of Public Interest Criterion (PIC).

6. 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 failed to provide the Department with evidence that they had undergone a required medical and x-ray examination.

   Have the applicants undertaken a medical assessment (PIC 4005(1)(aa))?

7. 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.

8. On 26 May 2021, the applicant’s authorised representative provided the Tribunal with Tax invoice and payment receipts regarding Bupa Medical Visa Services appointments for the required medical and x-ray examination undertaken on 31 May 2021: by Owen Payas Abecendario, Arwen Blanza Abecendario, Olwen II Blanza Abecendario, Olivier Blanza Abecendario, Vincent Kyle Blanza Abecendario, Abegail Blanza Abecendario, Orren Blanza Abecendario.

9. A review of Department records show that the applicants’ health requirements were confirmed as finalised between 26 May 2021 and 18 August 2021.

10. In light of the new evidence received, the Tribunal is satisfied that in relation to the first named applicant, the requirements in PIC 4005(1)(aa) are met.

    The secondary visa applicants

11. ‘Member of a family unit’ is relevantly defined at r. 1.12, which provides:

    Reg 1.12    Member of the family unit

    (1)   For the definition of member of the family unit in subsection 5(1) of the Act, and subject to

    subregulations (2), (2A), (6) and (7),  a person is a member of the family unit of another person (in this subregulation called the family head) if the person is:

    (a)a spouse or de facto partner of the family head; or

    (b)a dependent child of the family head or of a spouse or de facto partner of the family head; or

    (c)a dependent child of a dependent child of the family head or of a spouse or de facto partner of the family head; or

    (e) a relative of the family head or of a spouse or de facto partner of the family head who:

    (i)       does not have a spouse or de facto partner; and

    (ii)      is usually resident in the family head's household; and

    (iii)     is dependent on the family head.

12. The Tribunal accepts that the second named visa applicant is the spouse of the primary applicant, the remaining secondary applicants are their children.

13. The Tribunal has found the applicant satisfies PIC 4005(1). The Tribunal notes that an assessment by the Department as to whether the secondary applicants satisfy cl 500.311 in Schedule 2 to the Regulations would flow from the outcome of their findings in relation to whether the applicant satisfies other required Public Interest Criteria in order for him to satisfy cl 500.217.

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

    DECISION

15. The Tribunal remits the application for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 visa:

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

    David Barker
    Member