Aung (Migration)

[2018] AATA 5632

Aung (Migration) [2018] AATA 5632 (19 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Ngu Wai Aung

CASE NUMBER:  1814989

DIBP REFERENCE(S):  BCC2018/1429589

MEMBER:Justine Clarke

DATE:19 November 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 (Visitor) visa:

·PIC 4005(1)(aa) for the purposes of cl.600.213 of Schedule 2 to the Regulations.

Statement made on 19 November 2018 at 2:39pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – health criteria – medical assessments now undertaken – health clearance received – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 600.213; Schedule 4, PIC 4005

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 7 May 2018 to refuse to grant the applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. On 27 March 2018, the applicant applied for the visa. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.600.213 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—specifically, because the applicant did not undergo a health examination.

3. On 23 May 2018, the applicant applied to the Tribunal for review of the primary decision. The applicant was represented in relation to the review by her registered migration agent.

4. On 25 September 2018, the Tribunal wrote to the applicant, by way of her registered migration agent, inviting her to undertake a health examination.

5. Subsequently, the applicant undertook the health examination and the results were communicated to the Department of Home Affairs.

6. Pursuant to s.360(2)(a) of the Act, the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it. Accordingly, the applicant was not invited to a hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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 did not undertake a medical examination when so requested by the Department on 3 April 2018. As at 7 May 2018, which was the day a delegate of the Minister made the primary decision, there was no evidence before the Department that the applicant had undertaken or made arrangements to undertake a chest x-ray and/or medical examination through an approved medical services provider.

   Has the applicant undertaken a medical assessment (PIC 4005(1)(aa))?

9. 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. The relevant class of persons and assessments are specified in IMMI 15/144 (the Instrument).

10. From the evidence before the Tribunal, the applicant is in the class of persons specified in the Instrument as she has spent three or more consecutive months in the last five years in Australia and Australia is a country specified in Column A of Schedule 1 to the Instrument.

11. Further and importantly, the Tribunal’s file contains evidence that, as at the date of this decision, the applicant has received a health clearance. The file contains a screenshot of the applicant’s ICSE records which states that she meets the health requirement as at 30 October 2018. An officer of the Tribunal sought written confirmation of this information from the Department. On 7 November 2018, an officer of the Department confirmed in writing that the applicant met the health requirement with an assessment expiry date of 30 October 2019.

12. For these reasons, the requirements in PIC 4005(1)(aa) are met.

13. 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

14. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 (Visitor) visa:

    ·PIC 4005(1)(aa) for the purposes of cl.600.213 of Schedule 2 to the Regulations.

    Justine Clarke
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    Schedule 4

    4005(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)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 (2); 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.

    (2)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.

    (3)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 (2) (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.