Castillo Castillo (Migration)

[2020] AATA 4035

Castillo Castillo (Migration) [2020] AATA 4035 (20 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Santa Castillo Castillo

CASE NUMBER:  1714028

HOME AFFAIRS REFERENCE(S):          BCC2016/2970708

MEMBER:Karen Synon

DATE:20 July 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 visa:

·Public Interest Criterion 4006A for the purposes of cl.457.325(d) of Schedule 2 to the Regulations.

Statement made on 20 July 2020 at 2:12pm

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – health requirement – Senior Medical Officer of the Commonwealth opinion – corrected period of assessment – decision under review remitted       

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 457.325; Schedule 4 Public Interest Criterion 4006

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 and Border Protection to refuse to grant the applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).  The applicant applied for the visa on 7 September 2016.  The delegate refused to grant the visa on 9 June 2017.

2. The delegate refused the visa to this, the secondary applicant, on the basis of an opinion of a Medical Officer of the Commonwealth that she did not meet health requirement in Public Interest Criterion (PIC) 4006A(1)(c).

3. The applicant applied for review of the primary decision on 30 June 2017 and provided a copy of the Department’s decision.

4. The applicant was represented in relation to the review by her registered migration agent.

5. 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 on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

6. On 13 July 2020 the Tribunal, at the request of the applicant, requested a further opinion from the Senior Medical Officer of the Commonwealth.

7. On 17 July 2020 a new opinion was received however this was incorrectly based on a stay of four years whereas the remaining period, on the primary visa applicant’s 457 visa grant, is only until 9 June 2021.

8. On the same day, 17 July 2020, the Tribunal requested that the Medical Officer of the Commonwealth opinion be reconsidered in light of the incorrect period of assessment and that a new RMOC be issued.

9. On 20 July 2020 the Department advised that the case had been reviewed for a reduced length of stay until mid-2021 and the applicant was found to meet the health requirement.

10. On this basis the Tribunal is satisfied that requirements of PIC 4006A are satisfied.

    DECISION

11. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 visa:

    ·Public Interest Criterion 4006A for the purposes of cl.457.325(d) of Schedule 2 to the Regulations

    Karen Synon
    Member