ARORA (Migration)

[2020] AATA 2997

ARORA (Migration) [2020] AATA 2997 (16 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Radhey ARORA

CASE NUMBER:  2000388

HOME AFFAIRS REFERENCE(S):          BCC2019/4561036

MEMBER:Jennifer Cripps Watts

DATE:16 May 2020

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:

·cl.500.217(4) of Schedule 2 to the Regulations.

Statement made on 16 May 2020 at 3:10pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – health requirement – undertaking a medical assessment – evidence of medical clearance provided upon review – decision under review remitted           

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 500.217

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 7 January 2020 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 11 September 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.217 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because he did not satisfy the health requirement.

4. The Tribunal was able to make a favourable decision on the evidence before it, relating to the determinative issue on the review, without inviting the applicant to a hearing to give evidence and present arguments:  s.360(2)(a) of the Act.

5. The applicant is represented before the Tribunal by his registered migration agent, Rajdeep Singh Chahal, who was also the migration agent of record at the time of application.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant meets the health requirement as required by cl.500.217(4).

8. Relevantly, cl.500.217(4) requires that an applicant must satisfy Public Interest Criteria (PIC) 4005. This means, relevantly, that the applicant in this case must undertake a medical assessment.

9. During the assessment of the visa application, the Department wrote to the applicant twice, on 18 October 2019 and 20 November 2019, requesting he provide evidence of having undertaken a medical assessment to meet PIC 4005.   The evidence was not provided.  The visa was refused 7 January 2020 and the applicant applied for review of the decision.

10. On 9 January 2020, the Tribunal wrote to the applicant requesting he provide evidence of meeting the PIC 4005 health requirements for the purpose of cl.500.217.

11. The applicant has provided the Tribunal with a receipt from Sonic Health Plus Pty Ltd, dated 6 February 2020, confirming payment for medical examinations and x-ray.  The Tribunal received an email confirmation from the Department, on 4 March 2020, confirming that the applicant’s health requirement was cleared on 7 February 2020

12. The Tribunal is satisfied the applicant meets cl.500.217(4).

13. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    DECISION

14. 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:

    ·cl.500.217(4) of Schedule 2 to the Regulations.

    Jennifer Cripps Watts
    Member