Cueva Coaguila (Migration)

[2023] AATA 1714

Cueva Coaguila (Migration) [2023] AATA 1714 (31 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Zuleika Kaline Cueva Coaguila

REPRESENTATIVE:  Mr M Shamraiz Mehdi

CASE NUMBER:  2203965

HOME AFFAIRS REFERENCE(S):          BCC2020/1545277

MEMBER:Member Nathan Goetz

DATE:31 May 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision of the delegate refusing to grant the applicant a Visitor (Class FA) Subclass 600 visa, and remits the visa application back to the delegate for reconsideration with a direction that the applicant satisfies the following:

·PIC 4005(1)(aa) of Schedule 4 to the Migration Regulations 1994 (Cth)

Statement made on 31 May 2023 at 3:02pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa)– applicant has undertaken the medical assessment specified in the Legislative Instrument through BUPA Medical Services –applicant satisfies public interest criterion 4005 – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 359

Migration Regulations 1994, Schedule 2, cl 600.213, Schedule 4, PIC 4005(1)(aa)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made under s 65 of the Migration Act 1958 (Cth) (the Act) by a delegate of the Minister to refuse to grant the applicant a Visitor (Class FA) Subclass 600 visa.

2. The applicant was represented in the review by registered migration agent 1465452.

   BACKGROUND

3. The applicant identifies as a female citizen of Peru, born in 1984, and presently located in Australia. The applicant applied for the visa on 13 May 2020.

4. On 2 March 2022 the delegate refused to grant the applicant the visitor visa because the delegate was not satisfied that the applicant satisfied Public Interest Criterion (PIC) 4005(1)(aa) of Schedule 4 to the Migration Regulations 1994 (the Regulations). As the applicant failed to satisfy PIC 4005(1)(aa), she failed to satisfy PIC 4005 in its entirety. As the applicant failed to satisfy PIC 4005, she failed to satisfy cl 600.213 of Schedule 2 to the Regulations.

5. On 19 March 2022 the applicant applied to the Tribunal for review of the decision.

6. On 15 May 2023 the Tribunal wrote to the applicant for two reasons.

7. The first reason was to invite the applicant under s 360(1) of the Act to invite her to appear at a Tribunal hearing scheduled for 1:30pm on 31 May 2023 so she could give evidence and present arguments relating to the issues arising under review.

8. The second reason was to invite the applicant under s 359(2) of the Act to give information that she had undertaken a medical assessment and chest x-ray. On 29 May 2023, the applicant provided the Tribunal with a number of documents, with one sentence from her representative that ‘evidence of her health examination is attached.’

9. On 31 May 2023 the applicant appeared at the Tribunal hearing via the MS Teams application. The Tribunal determined that a Tribunal hearing occurring by audio-visual means was appropriate in all the circumstances. The Tribunal hearing was conducted with the assistance of an interpreter in the English and Spanish languages.

   CRITERIA FOR THE VISA

   600.213 

   (1)  The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4011, 4013, 4014, 4020 and 4021.

   (2)  If the applicant has not turned 18, the applicant also satisfies public interest criteria 4012, 4017 and 4018.

   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)

   CONSIDERATION OF EVIDENCE

10. In the visa application form, the applicant identifies that she is currently in Australia and seeking a further stay until May 2021. She seeks the visa because she was visiting her sister’s family in Australia when the borders closed due to the pandemic. At the Tribunal hearing, noting that the date she wished to remain in Australia had passed, the applicant told the Tribunal that she wished to remain in Australia until she was successfully granted the visa, and wished to remain four to six months in Australia after that time so that she can make arrangements to return to Peru. She wishes to be granted the visa before she left because she did not want to do have a bad migration record, and had she left in May 2021 as declared in the visitor visa application, that record would have remained.

11. According to the delegate decision record, on 13 May 2020 the applicant was requested to complete specified medical examinations and was required to either undertake the medical examinations within 28 days of the request or to provide evidence within 28 days those arrangements were made to undertake the examinations at a later date.

12. The letter to the applicant detailed that she was required to undertake a ‘medical examination’ and ‘chest x-ray examination.’ The letter detailed that the examinations were required to be completed by Bupa Medical Visa Services, and the applicant was provided with the details of that organisation to arrange an appointment. She was requested to do so within 28 days. The applicant did not undertake the required medical examinations or provide evidence that arrangements had been made to undertake the examinations within that timeframe.

13. On 13 July 2020 the delegate again wrote to the applicant detailing that she was required to undertake the medical examinations. The letter repeated the contents of the earlier letter of 13 May 2020, giving the applicant 28 days to undertake the medical examinations, or provide evidence that arrangements to undertake the medical examinations had been made. The applicant did not undertake the required medical examinations or provide evidence that arrangements had been made to undertake the examinations within the timeframe.

14. On 2 March 2022 the delegate refused to grant the visa because the delegate was not satisfied that the applicant had undertaken the medical assessment specified in the Legislative Instrument and therefore failed to satisfy PIC 4005(1)(aa).

15. After the applicant applied to the Tribunal on 19 March 2022 for review of the decision, the Tribunal wrote to the applicant on 21 March 2022 requesting that the applicant undertake the required examinations and provide the Tribunal evidence that she had done so by 4 April 2022. On 4 April 2022 the applicant provided the Tribunal with a copy of an email confirming that she had a ‘visa medical appointment booking’ with BUPA Medical Visa Services on 6 July 2022.

16. On 18 July 2022 the Tribunal wrote to the applicant and noted that it had not received from her evidence that she had undertaken the medical examinations. The letter asked the applicant to contact the Tribunal to discuss this.

17. On 22 July 2022 the applicant provided the Tribunal with an email from BUPA Medical Services dated 12 July 2022 which advised that a Medical Officer of the Commonwealth advised that further medical examination was required before a determination could be made whether the applicant met the health criteria for the visa. The email detailed to the applicant what she needed to do for the further medical assessment.

18. On 18 August 2022 the applicant provided the Tribunal with a letter dated 27 July 2022 from Western Health which detailed that the applicant had an appointment at the Migrant Screening Service at Footscray Hospital on 6 October 2022. The Tribunal heard nothing further from the applicant.

19. On 15 May 2023 the Tribunal wrote to the applicant under s 359(2) of the Act and asked her to provide the Tribunal with information. The letter noted the basis for the delegate refusing to grant her the visa and detailed the delegate’s requests for her to complete specified medical examinations. The Tribunal invited the applicant to provide evidence that she had undergone a medical examination and chest x-ray as requested by the delegate in the letter to the applicant on 13 May 2020.

20. On 29 May 2023 the applicant responded to the request for information with the following:

    ·     An email to the applicant from Bupa Medical Services (date not clear) advising the applicant that she had an appointment with Bupa Medical Services at their Melbourne clinic on 6 July 2022.

    ·     An email to the applicant from Bupa Medical Services dated 22 July 2022 which ‘thanked the applicant for recently visiting us at one of our Bupa Medical Assessment Centres.’ The email was written to the applicant on behalf of the Department in relation to the health examinations that she has undertaken in connection with the visa application.’ The letter noted that ‘as a result of the examination, a Medical Officer of the Commonwealth (MOC) advised that further medical information is required before it can be determined whether the applicant met the health criteria for the grant of the visa. The letter advised the applicant of what to do next.

    ·     A letter to the applicant from Western Health dated 27 July 2022 advising the applicant that she had an appointment with the Migrant Screening Clinic on 6 October 2022 at Footscray Hospital.

    ·     A Tax Invoice dated 30 August 2022 made out to the applicant advising that she had an outstanding bill from Monash Health for a ‘chest (lung fields) by direct radiography (R) referral by Rabbi, Ahassan Al (6094793L) Ref/Re date 27 August 2022.’

    ·     A Tax Invoice dated 18 October 2022 made out to the applicant advising that she had an outstanding bill from Dorevitch Pathology for a ‘SCP-1724 M+C+S Sput Mycobac.TB X1, M+C+S Sput’ and a ;SCP-1724 Pei Licenced Coll Centre; for a service date of 6 August 2022.

    ·     A screenshot of a text message to the applicant on 27 October (year not noted) reminding the applicant that she had an appointment on 27 October 2022 at 2pm at the Migrant Screening Clinic at Footscray Hospital.

21. On 31 May 2023, shortly before the Tribunal hearing, the applicant sent the Tribunal various documents, and advised that she had her last medical examination on 27 October 2022 at Footscray Hospital. She reattached documents that she had previously submitted to the Tribunal.

    ·A Tax Invoice dated 29 March 2022 made out to the applicant from Bupa Medical Services indicating that she had paid the fee for a Medical Examination (501) and Chest X-Ray (502).

22. At the Tribunal hearing, the Tribunal discussed with the applicant the fact that the only issue was whether the applicant had undertaken the medical assessments as first requested by the delegate on 13 May 2020

    FINDINGS AND REASONS

23. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

24. The applicant is in a class of persons specified by the Minister in an instrument in writing for the purpose of PIC 4005. The relevant legislative instrument is IMMI 15/144 which was in effect at the time the applicant applied for the visa.

25. Schedule 2 of that Instrument provides that as the applicant is a citizen of Peru, seeking to stay temporarily in Australia for six months or more, and aged over 11 years, she was required to have a medical examination and chest x-ray. The applicant did not argue that she was not required to undertake the assessment and chest x-ray because she was not in a specified class of persons.

26. The evidence is that the applicant has undertaken the medical examination and chest x-ray, as demonstrated by the production of the Tax Invoice dated 29 March 2022. It is regrettable that the applicant did not provide this Tax Invoice to the Tribunal once it was in her possession, because the Tribunal could have determined the review without delay. It is also regrettable that the applicant’s representative did not provide the Tribunal with that document.

27. The evidence about subsequent appointments that the applicant produced to the Tribunal appears to be related to a Medical Officer of the Commonwealth determining that further medical examinations were required. This was not a criterion that the delegate considered, nor was it a criterion that the Tribunal considering. It is regrettable that the applicant’s representative did not address the relatively simple issue of the basis of the refusal of the visa application, despite the Tribunal utilising s 359(2) of the Act to make the issue being considered by the delegate and the Tribunal abundantly clear.

28. The Tribunal is satisfied that the applicant has undertaken the medical assessment specified in the Legislative Instrument through BUPA Medical Services. Therefore, the applicant satisfies PIC 4005(1)(aa). The proper course is to set aside the decision of the delegate and remit the visa application back to the delegate for reconsideration of the visa, with a direction that the applicant satisfies PIC 4005(1)(aa), so that the delegate can consider the remaining requirements of PIC 4005.

    CONCLUSION

29. For the above reasons, the Tribunal is satisfied that the applicant has undergone a medical assessment and chest x-ray as required by the Legislative Instrument.

    DECISION

30. The Tribunal sets aside the decision of the delegate refusing to grant the applicant a Visitor (Class FA) Subclass 600 visa and remits the visa application back to the delegate for reconsideration with a direction that the applicant satisfies the following:

    ·PIC 4005(1)(aa) of Schedule 4 to the Migration Regulations 1994 (Cth)

    Nathan Goetz
    Member