Babu John (Migration)

[2018] AATA 5525

Babu John (Migration) [2018] AATA 5525 (14 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Andrew Babu John

CASE NUMBER:  1713818

DIBP REFERENCE(S):  BCC2016/2418023

MEMBER:Meredith Jackson

DATE:14 December 2018

PLACE OF DECISION:  Brisbane

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) of Schedule 2 to the Regulations.

Statement made on 14 December 2018 at 2:37pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – previous MOC opinion expired – applicant met the health requirement – Decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 500.317, Schedule 4, Public Interest Criterion (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 19 June 2017 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 20 July 2016. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.500.317 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. The applicant was represented in relation to the review by his registered migration agent.

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration consideration of Claims and evidence

5. 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. PIC 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 delegate found the applicant in this case did not meet the health requirement having been assessed against PIC 4005 and a Does Not Meet (DNM) outcome being recorded by a Medical Officer of the Commonwealth (MOC) on 30/08/2016.

6. On 28 June 2017 the applicant appealed the decision.

   Has the applicant complied with a request to undertake a medical assessment (PIC 4005(1)(ab)?

7. Public interest criterion 4005(1)(ab) requires that the applicant comply with any request by a Medical Officer of the Commonwealth (MOC) to undertake a medical assessment.

8. On 20 November 2018 the Tribunal wrote to the applicant in relation to the review, requesting that the applicant obtain a further opinion from a MOC because the DNM assessment was current for the period to 7 May 2018.

9. The applicant complied with the Tribunal’s request and a new medical assessment was duly obtained.

10. On 14 December 2018 the Tribunal was notified that the applicant met the health requirement. The period of currency for the relevant new opinion is six months from 14 December 2018, therefore the applicant is found to meet the requirement until the expiry of the opinion on 14 June 2018.

11. Therefore the applicant meets PIC 4005(1)(ab).

    Relevant period of currency of MOC opinion

12. The Tribunal notes that in the course of making its request for a new medical assessment, the Tribunal sought from the holder of the visa on which the applicant is dependent, his mother Mrs Mercy Babu John, advice in relation to her anticipated period of stay. Mrs Babu John advised that she is scheduled to complete her current studies on 31 December 2018 and her visa is to cease on 15 March 2019. She further advised that she currently has no intentions to enrol in additional courses, however she may be required to complete a further subject early in the coming year if her grades require it. The applicant’s mother considered that a 6 month period would be a reasonable duration to cover that contingency and for the relevant assessment period for the purpose of the review.

13. On 10 December 2018 the Tribunal sought advice from the Department as to whether it wished to advise the Tribunal whether a different period was indicated. On 11 December 2018 the Department responded providing no advice on any other period for which the MOC opinion should be current, asking the Tribunal to confirm the period of assessment. On 11 December 2018 the Tribunal indicated it was satisfied that a period of 6 months was appropriate in this case.

14. 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

15. 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) of Schedule 2 to the Regulations.

    Meredith Jackson
    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.