Biskaps (Migration)

[2023] AATA 2972

Biskaps (Migration) [2023] AATA 2972 (4 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Sunshine Jennifer Biskaps

REPRESENTATIVE:  Ms Julie Van Arts (MARN: 1383806)

CASE NUMBER:  2306822

HOME AFFAIRS REFERENCE(S):          BCC2018/4269734

MEMBER:Meena Sripathy

DATE:4 September 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

·PIC 4007 for the purposes of cl 820.223 of Schedule 2 to the Regulations.

Statement made on 04 September 2023 at 11:50am

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – health requirement – medical assessment provided upon review – Australian citizen child of the relationship – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 820.223; Schedule 4, Public Interest Criterion 4007

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 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant applied for the visa on 1 October 2018. The delegate refused to grant the visa on 16 May 2023.

2. The delegate made the decision on the basis that evidence of a medical assessment was not provided as required to satisfy a criterion for the grant of the visa under the Migration Regulations 1994 (Cth) (the Regulations).

3. On the 29 June 2023 Tribunal received evidence of applicant’s completed medical examinations. Department records accessed by the Tribunal on 19 July 2023 indicate that the applicant is assessed as meeting the health requirement.  In light of the new evidence received, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration. 

4. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant in respect of the criteria on which the application was refused, on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

5. The applicant submitted to the Tribunal updated evidence of the ongoing spouse relationship, including a birth certificate for an Australian citizen child of the relationship. This evidence will be forwarded to the Department for consideration of the remaining criteria. 

   DECISION

6. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

   ·PIC 4007 for the purposes of cl 820.223 of Schedule 2 to the Regulations

   Meena Sripathy
   Member