Amir (Migration)

[2019] AATA 4753

Amir (Migration) [2019] AATA 4753 (22 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Amaleena Binti Amir

CASE NUMBER:  1922043

DIBP REFERENCE(S):  BCC2019/2251876

MEMBER:Kira Raif

DATE:22 October 2019

PLACE OF DECISION:  Sydney

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

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

Statement made on 22 October 2019 at 11:58am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Public Interest Criterion 4005 – medical assessment undertaken after delegate’s decision – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 500.217, Schedule 3, criterion 4005(1)(c)

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 2 August 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 25 April 2019. 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. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it.

   Relevant law

4. 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, 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.

5. Public interest criterion 4005(1)(c) requires the applicant be free from a disease or condition which would be likely to require health care or community services or which would meet the medical criteria for provision of a community service during the specified period; and  provision of the health care or community services (regardless of whether it will actually be used in connection with the applicant) would be likely to: result in a significant cost to the Australian community in the areas of health care and community services; or prejudice access of an Australian citizen or permanent resident to health care or community services. For specified temporary visas, certain specified health care and community service are excluded from this consideration: PIC 4005(3).

   Is the applicant free from the relevant diseases or conditions (PIC 4005(1)(a), (b), (c))?

6. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that in May, June and July 2019 the delegate made contact with the applicant requesting the applicant to undertake health checks and this was not done. As a result, the delegate was not satisfied the applicant met PIC 4005.

7. Electronic records before the Tribunal indicate that the applicant did undertake a health examination and an ‘auto cleared’ result was recorded on 3 October 2019. On the basis of this evidence, the Tribunal is satisfied that the applicant meets PIC 4005(1)(c).

   Conclusion

8. 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

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

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

   Kira Raif
   Senior Member