Beniwal (Migration)

[2022] AATA 4484

Beniwal (Migration) [2022] AATA 4484 (30 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ankur BENIWAL

REPRESENTATIVE:  Mr Harpal Bajwa (MARN: 0955800)

CASE NUMBER:  2211157

HOME AFFAIRS REFERENCE(S):          BCC2021/1602955

MEMBER:Mireya Hyland

DATE:30 October 2022

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 for the purposes of cl 500.217 of Schedule 2 to the Regulations.

Statement made on 30 October 2022 at 9:00am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – health criteria – medical assessment provided upon review – decision under review remitted          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 500.217; Schedule 4, Public Interest Criterion 4005; r 2.25

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 21 July 2022 to refuse to grant the applicant, Ankur Beniwal, a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958.

2. Mr Beniwal applied for the visa on 18 August 2021. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). Mr Beniwal applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. The criteria for the grant of a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate refused to grant the visa on the basis that Mr Beniwal did not satisfy cl.500.217 of the Regulations because the health criteria in Public Interest Criterion (‘PIC’) 4005 of Schedule 4 to the Regulations was not met. The delegate did not consider any requirements other than those contained in PIC4005. Mr Beniwal lodged an application for review of the decision with the Tribunal on 2 August 2022 and the matter was constituted to the Tribunal on 27 October 2022. The delegate’s decision was provided to the Tribunal by Mr Beniwal with his review application.

3. The issue in this review is whether Mr Beniwal meets PIC4005 as required by the criteria for the grant of the visa. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. 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. 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: PIC4005(1)(aa). The applicant must be free from tuberculosis and 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: PIC4005(1)(a) and (b). Also, the applicant must be free from a disease or condition likely to require health care or community services or which meet the medical criteria for provision of a community service during a specified period where provision of the health care or community services (regardless of whether it will actually be used) would be likely to: 1) result in a significant cost to the Australian community; or 2) prejudice access of an Australian citizen or permanent resident to health care or community services: PIC4005(1)(c).

5. The relevant classes of persons and assessments for PIC4005(1)(aa) are specified in IMMI 15/144 as amended by LIN 22/065. The classes of persons are persons who are citizens of a country or who have spent three or more consecutive months during the last five years in a country or countries either listed or not listed in Schedule 1 to that Instrument. Mr Beniwal is a citizen of India. There is no evidence before the Tribunal that Mr Beniwal has spent more than three consecutive months in any country other than India and Australia. India is not listed in Schedule 1 to the Instrument.

6. Schedule 2 to IMMI 15/144 lists the medical assessments to be undertaken by citizens of countries that are not listed in Schedule 1 to that Instrument. For a temporary visa applicant aged 11 years or older, Schedule 2 requires that the applicant undergo a medical examination and chest x-ray. Medical assessments conducted within Australia must be conducted by Bupa Australia Health Pty Ltd, trading as Bupa Medical Visa Services, or an Approved Medical Practitioner.

7. Schedule 3 to IMMI 15/144 requires additional tests in certain circumstances. These are where the applicant intends to work, study or train as a doctor, dentist, nurse, paramedic, health care worker or childcare worker, or intends to work in the health care profession, an aged care or disability facility, or childcare centre, or is likely to enter a health care or hospital environment. There are also additional tests required where the applicant is pregnant and intends to have the baby in Australia and for visitors who are at least 75 years old. On 5 October 2022, Mr Beniwal confirmed to the Tribunal that he does not fall within any of the classes of person for whom additional medical assessments are required.

8. In determining whether a person meets PIC4005(1)(a), (b) or (c), r.2.25A requires the Tribunal to seek the opinion of a MOC unless, in the case of an application for a temporary visa, there is no information known to Immigration to the effect that the person may not meet those requirements. Where an opinion of a MOC is required, the Tribunal must take it to be correct: r.2.25A(3). For some temporary visas, certain specified health care and community services are excluded from the PIC4005(1)(c) considerations: PIC 4005(3). A Student (Temporary) (Class TU) visa is not listed in Legislative Instrument IMMI 22/007. As such the health care and community services listed in IMMI 22/014 are excluded from consideration. There is no evidence that there is information known to immigration that Mr Beniwal may not meet PIC4005(1)(a), (b) or (c).

9. Applicants are required to comply with any request by a MOC to undertake a medical assessment or sign an undertaking to present themselves to a health authority for a follow-up medical assessment: PIC4005(1)(ab) and (d). There is no evidence that a MOC has requested that Mr Beniwal comply with the requirements in PIC4005(1)(ab) or (d).

10. Based on the above information the Tribunal finds that in Mr Beniwal’s case a MOC opinion is not required.

11. The Department of Home Affairs’ records show that on 10 September 2022 Mr Beniwal finalised the health requirements for PIC4005 and was ‘Auto Cleared’. The Department has confirmed to the Tribunal that where its records show that an applicant has been Auto Cleared it is an eMedical with no MOC involvement or assessment and no Form 884 is available. Therefore, the Tribunal accepts the Department evidence that Mr Beniwal meets all the health requirements in the legislation and has been cleared to the standard of an applicant for a temporary visa made where the specified class of person has lived in India and does not require additional medical assessment under Schedule 3 to IMMI 15/144.

12. Mr Beniwal meets PIC4005 of the Regulations.

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

    ·PIC4005 for the purposes of cl.500.217 of Schedule 2 to the Regulations.

    Mireya Hyland

    
    

    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.