ADAMS (Migration)

[2022] AATA 590

ADAMS (Migration) [2022] AATA 590 (18 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Caitlin Rose-Marie ADAMS

REPRESENTATIVE:  Mr Deepak Panchal (MARN: 0747362)

CASE NUMBER:  1933059

HOME AFFAIRS REFERENCE(S):          BCC2018/2865838

COUNTRY OF REFERENCE:                   United Kingdom

MEMBER:Christine Kannis

DATE:18 March 2022

PLACE OF DECISION:  Perth

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 (Spouse) visa:

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

Statement made on 18 March 2022 at 8:39am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – health criteria – medical assessment – departmental records indicate health requirements met – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 820.223, Schedule 4, criterion 4007(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 on 31 October 2019 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 31 July 2018. The visa was refused because the delegate decided that the applicant did not satisfy cl 820.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the health criteria in Public Interest Criterion (PIC) 4007 of Schedule 4 to the Regulations was not met. The delegate made the decision on the basis that evidence of a medical assessment had not been provided as required to satisfy a criterion for the grant of the visa under the Regulations.

3. No hearing was held in this case because the Tribunal determined it was able to make a favourable decision on the materials before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

4. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this review is whether the applicant meets PIC 4007 as required by the criteria for the grant of the visa. PIC 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.

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

7. Clause 4007(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.

8. IMMI 15/144 relevantly provides, at paragraph (2)(a), that:

   … for paragraphs … 4007(1)(aa) of Schedule 4 to the Regulations:

   a.    the class of persons is a person 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 listed in Column A of Schedule 1 to this Instrument.

9. The United Kingdom is one of the countries listed in Column A of Schedule 1 to the Instrument. The applicant is a citizen of the United Kingdom and the Tribunal is satisfied that the applicant is in the class of persons specified in the Instrument.

10. The Tribunal is satisfied that the Minister requested the applicant undergo a medical  assessment to ensure she meets the health requirement for a Partner (Subclass 820) visa. Prior to the delegate’s decision the applicant had failed to undergo the medical assessment as requested.

11. Departmental records indicate that the applicant met the health requirements for permanent stay on 3 March 2022.

12. For these reasons the requirements in PIC 4007(1)(aa) are met.

13. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for the visa.

    DECISION

14. 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 (Spouse) visa:

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

    Christine Kannis

    
    

    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.