Ahmed (Migration)

[2021] AATA 5055

Ahmed (Migration) [2021] AATA 5055 (23 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Alaedin Ahmed

CASE NUMBER:  1804441

HOME AFFAIRS REFERENCE(S):          BCC2016/1797034

MEMBER:David Crawshay

DATE:23 December 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 820 visa:

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

Statement made on 23 December 2021 at 3:47pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – medical assessment – health requirements met upon review – decision under review remitted     

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 820.223; Schedule 4, Public Interest Criterion 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 Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act). The applicant applied for the visa on 20 May 2016. The delegate refused to grant the visa on 1 February 2018.

2. The delegate made the decision on the basis that the applicant did not satisfy cl.820.223(1)(a) of the Migration Regulations 1994 (the Regulations) because he had not provided evidence of a medical assessment as required under public interest criterion 4007.

3. On 23 December 2021 the Tribunal received an email from the Department which stated as follows:

   I can confirm that Mr Ahmed met health to a permanent standard on 23 November 2021. As his case was electronically finalised as “Auto Cleared” there is no 884 Meets letter available, however, I have screenshot the HAP outcome below for your convenience.

4. The enclosed screenshot shows the applicant and gives his correct date of birth and HAP ID. Under a section titled “IME Summary”, it gives his status as “finalised” and gives the expiry date as 23 November 2022. Under a section titled “Type”, it states that it was an assessment for an “801 – Partner”. Under a section titled “Assessment Status”, it states that the applicant had been “Auto Cleared” on 23 November 2021.

5. The Tribunal accepts that the above evidence is a genuine reflection the fact that the applicant underwent and passed an IME assessment, and it is given weight. Based on this evidence, it finds that the applicant is free from tuberculosis and from any disease or condition that is contemplated by PIC 4007(1)(b) or (c), and there is no evidence to show that he is required to comply with PIC 4007(d). The Tribunal is therefore satisfied that PIC 4007 is met and has concluded that the matter should be remitted for reconsideration.

6. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

   DECISION

7. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

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

   David Crawshay
   Member