Cormack (Migration)

[2021] AATA 411

Cormack (Migration) [2021] AATA 411 (15 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Nittaya Cormack

CASE NUMBER:  1911860

HOME AFFAIRS REFERENCE(S):          BCC2019/1119877

MEMBER:Susan Trotter

DATE:15 January 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 (Visitor) visa:

·PIC 4005(1) for the purposes of cl.600.213(1) of Schedule 2 to the Regulations.

Statement made on 15 January 2021 at 9:50am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – health criteria – chest x-ray and medical examination required – assessment undertaken and information sent to the Department – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.213; Schedule 4, PIC 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 Home Affairs on 23 April 2019 to refuse to grant the applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 6 March 2019. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.600.213 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. In particular, the delegate noted that, by correspondence of 25 March 2019, the applicant was requested to undertake a chest x-ray and medical examination through an approved medical services provider within 28 days and no evidence was received from the applicant within that time, or at all, to demonstrate that they had undertaken, or made arrangements to undertake, a chest x-ray and medical examination as requested and required.

3. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 13 May 2019.

4. The Tribunal wrote to the applicant on 15 October 2020 again inviting her to undertake a health examination and providing information in relation to making arrangements for a medical assessment by 12 November 2020.

5. No response was received to the Tribunal’s letter and the Tribunal invited the applicant to attend a hearing before the Tribunal on 7 January 2021.

6. The applicant appeared before the Tribunal on 7 January 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s husband, Mr Matthew Cormack.

7. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The criteria for a Visitor (Class FA) visa Subclass 600 visa are set out in Part 600 of Schedule 2 to the Regulations.

9. Clause 600.213(1) of the Regulations relevantly requires that an applicant satisfies a number of Public Interest Criteria including PIC 4005 of Schedule 4 to the Regulations. PIC 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.

10. PIC 4005(1)(aa) requires that if an 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.

11. At the time of the visa application, the relevant class of persons and assessments were specified in IMMI 15/144. Pursuant to that instrument, the applicant, is required to undergo a chest x-ray and medical examination.

12. As already noted, on 25 March 2019, the Department wrote to the applicant requesting her to make arrangements to undergo a chest x-ray and medical examination. The applicant was advised to respond within 28 days of the request. The delegate’s decision record, which the applicant provided with her application to the Tribunal, records that, as at the date of the delegate’s decision on 23 April 2019, no response had been received from the applicant.

13. The delegate found that PIC 4005, and consequently cl.600.213 of Schedule 2, had therefore not been met by the applicant.

14. As already noted, further, the Tribunal, on 15 October 2020, also invited the applicant to undertake the requested health examination and prior to hearing there was no evidence before the Tribunal to indicate that the applicant had completed the necessary medical examinations.

15. At hearing, the applicant and her husband told the Tribunal that the applicant had undertaken the requested medical examinations at around the time of the delegate’s decision and again a couple of months prior to hearing. In responding to the Tribunal’s query as to why the applicant had not passed on this information to the Tribunal, or responded to the Tribunal’s letter of 15 October 2020 to advise the examination had taken place, it became clear that the applicant and her husband did not appreciate that the Tribunal is independent from the Department and that information from the Department is not necessarily passed on to the Tribunal.

16. Following the hearing, the Tribunal contacted the Department and was provided with Medical Officer of the Commonwealth opinions dated 30 April 2019 and 30 October 2020, both of which concluded that the applicant had been assessed against PIC 4005 and met the health requirement for the period of one year. As the most recent assessment and opinion of 30 October 2020 was within the past 12 months, the Tribunal is satisfied that the applicant now meets PIC 4005(1) for the purposes of cl.600.213.

17. 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

18. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 (Visitor) visa:

    ·PIC 4005(1) for the purposes of cl.600.213(1) of Schedule 2 to the Regulations.

    Susan Trotter
    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.