Basyrah (Migration)

[2021] AATA 1913

Basyrah (Migration) [2021] AATA 1913 (4 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Gusrinda Alam Basyrah

CASE NUMBER:  2104264

HOME AFFAIRS REFERENCE(S):          BCC2021/208818

MEMBER:Nicole Burns

DATE:4 May 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Medical Treatment (Visitor) (Class UB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 602 visa:

·Public Interest Criterion 4001 for the purposes of cl 602.217(1) of Schedule 2 to the Regulations.

Statement made on 04 May 2021 at 2:54pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – character test – National Police Certificate provided upon review – decision under review remitted  

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 602.217; Schedule 4, Public Interest Criterion 4001

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 17 March 2021 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 6 February 2021. At that time, Class UB contained one subclass, Subclass 602 (Medical Treatment). The criteria for the grant of this visa are set out in Part 602 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.602.217(1) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the criteria in Public Interest Criterion (‘PIC’) 4001 of Schedule 4 to the Regulations was not met.

4. The Tribunal did not consider a hearing to be necessary as it was able to remit the matter on the material before it.

5. For the following reasons, the Tribunal has decided that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant meets PIC 4001 as required by the criteria for the grant of the visa.

7. PIC 4001, as it applies to this case, is extracted in the attachment to this decision. It requires the applicant satisfy the Minister (or in this case the Tribunal) that she passes the character test or the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that she would fail to satisfy the Minister that she passes the character test or the Minister has decided not to refuse to grant a visa to her despite reasonably suspecting that she does not pass the character test or the Minister has decided not to refuse to grant a visa to her despite not being satisfied that she passes the character test.

8. On 8 February 2021, the Department of Home Affairs (the Department) requested that the applicant provide a current AFP Police Check within 28 days. The applicant did not respond to that request within the timeframe nor did she seek an extension of time to do so. The delegate was therefore not satisfied that the applicant met the requirements of PIC 4001. The delegate found that she did not satisfy cl.602.217(1) and refused the visa application.

9. On review the applicant submitted to the Tribunal a National Police Certificate dated 21 March 2021 which indicated that she did not have any disclosable court outcomes recorded against her as at 21 March 2021.

10. On the evidence before it, the Tribunal finds that the requirements in PIC 4001 are met for the purposes of cl.602.217(1).

11. Given the finding above, the appropriate course is for the Tribunal to remit the visa application to the Minister for reconsideration of the remaining criteria for the Subclass 602 visa.

    DECISION

12. The Tribunal remits the application for a Medical Treatment (Visitor) (Class UB) Subclass 602 visa for reconsideration, with the direction that the applicant meets the following criteria for a Medical Treatment (Visitor) (Class UB) Subclass 602 visa:

    ·PIC 4001 for the purposes of cl.602.217(1) of Schedule 2 to the Regulations.

    Nicole Burns
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    Schedule 4

    PIC 4001 

    Either: 

    (a)  the person satisfies the Minister that the person passes the character test; or  

    (b)  the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that the person would fail to satisfy the Minister that the person passes the character test; or 

    (c)  the Minister has decided not to refuse to grant a visa to the person despite reasonably suspecting that the person does not pass the character test; or 

    (d)  the Minister has decided not to refuse to grant a visa to the person despite not being satisfied that the person passes the character test.

    Schedule 2

    602.217  

    (1)  The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4013 and 4014.

    (2)  However, subclause (1) does not apply if the requirements described in subclause 602.212(6), (7) or (8) are met in relation to the applicant.