Benson (Migration)

[2017] AATA 1942

Benson (Migration) [2017] AATA 1942 (9 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Alexander Peter Benson

CASE NUMBER:  1614106

DIBP REFERENCE(S):  BCC2016/1558335

MEMBER:Lilly Mojsin

DATE:9 August 2017

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 573 Higher Education Sector visa:

·PIC 4005 (1)(aa)(i) for the purposes of cl.573.224 of Schedule 2 to the Regulations.

Statement made on 09 August 2017 at 1:54pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Health criteria – Evidence of medical examination – Health testing completed

LEGISLATION

Migration Act 1958, ss 65, 360(2)

Migration Regulation 1994, Schedule 2 cl 573.224, Schedule 4 Public Interest Criterion 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 30 August 2016 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 26 April 2016.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.573.224 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.

4. The Tribunal did not invite the review applicant to attend a hearing as it decided it should make a favourable decision on the available evidence (s.360(2)).

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this review is whether the 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 application, 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.

6. The applicant is a citizen of the United Kingdom.

7. On 27 April 2016 the applicant was requested to provide supporting evidence including the results of a medical and an x-ray examination, completed within the last 12 months of his application made on 26 April 2016. However the applicant did not do so by 30 August 2016 and the delegate was not satisfied that the applicant met PIC 4005 for the purposes of cl.573.224.

8. 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.

9. According to Items 2(c) and (d) and Column C of Schedule 2 of IMMI 15/144, the applicant is in a specified class of persons for the purposes of PIC 4005(1)(aa) and must undertake a chest x-ray and medical examination.

10. A check of the Department's records shows that, as of 26 January 2017, the applicant 'meets' the Finalised Health Requirement, meaning that all required health testing has been completed.

11. Therefore, the Tribunal is satisfied that the applicant has undertaken all the relevant medical assessments and that the assessments were carried out by the relevant persons. The Tribunal finds, therefore, that the requirements in PIC 4005(1)(aa) are met.

12. 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

13. 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 573 Higher Education Sector visa:

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

    Lilly Mojsin
    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.