da Silva Lima (Migration)

[2018] AATA 611

da Silva Lima (Migration) [2018] AATA 611 (1 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Raphael da Silva Lima

CASE NUMBER:  1725540

DIBP REFERENCE(S):  BCC2017/2516541

MEMBER:Jennifer Cripps Watts

DATE:1 March 2018

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 criterion for a Subclass 500 (Student) visa:

· cl.500.217 of Schedule 2 to the Regulations.

Statement made on 01 March 2018 at 11:38am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Requirement for applicant to undertake medical assessments – Applicant had not undertaken medical assessments at time of Department’s decision – Applicant subsequently undertook and provided evidence of medical assessment

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 500.111, 500.217, 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 Immigration on 28 September 2017 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 15 July 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of Public Interest Criteria (PIC) 4005 and consequentially did not satisfy cl.500.217 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

4. The visa that is the subject of this review was refused on 28 September 2017.  The applicant applied for review by this Tribunal on 19 October 2017, within time, and provided the Tribunal with a copy of the Department’s decision to refuse his student visa.  The applicant’s matter was constituted to this member and, on 18 January 2018 the Tribunal sent a written invitation to attend a hearing, requesting the applicant provide the following information:

   a.A copy of his current Certificate of Enrolment (CoE) or other document/s that shows that he is currently enrolled in a course of study as defined in cl.500.111 of the Migration Regulations 1994.

   b.Documents that show the applicant’s past studies in Australia, including copies of all his attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to his past or intended studies in Australia.

   c.Evidence of the applicant’s current medical assessment by the department’s medical services provider to meet the health requirement for the visa.

5. In the hearing invitation, the applicant was advised that if he has not undertaken a medical assessment to check the department’s website ( for information about making arrangements for a medical assessment.  It was requested of him that once he has made arrangements to provide the Tribunal with evidence that an appointment has been scheduled. 

6. The applicant was reminded, in an email from the Tribunal on 5 February 2018, that his hearing was on 14 February 2018 and he had not yet provided a completed response to the hearing invitation.  The applicant contacted the Tribunal on 6 February 2018 by email to advise of a change of address and said that he intended to go to his agency on the following day to fill in the response to the hearing invitation.

7. On 12 February 2018, the Tribunal sent the applicant a second written reminder about his hearing and invited him to provide any evidence that he has completed the required medical assessments and advising that if he had health checks more than 12 months ago, the results may have expired.

8. Notwithstanding the invitation sent on 18 January 2018 and two subsequent written reminders, on 5 and 12 February 2018, the applicant did not provide any documentary information in support of his visa application prior to his scheduled hearing on 14 February 2018. Relevantly, he did not provide confirmation that he had undertaken medical assessment: cl.500.217

9. The Tribunal received an email from the applicant on 12 February 2018 again saying that he will go to his agent and fill in the forms.  In the email, the applicant advises that he will attend his hearing and that he requires a Portuguese interpreter.    An email response was sent by the Tribunal on 13 February 2018 referring the applicant to the hearing invitation which contained the information he was seeking.  A Portuguese interpreter was booked for him by the Tribunal for his 14 February 2018 hearing.

10. The applicant sent an email to the Tribunal at 10:21am on the day of his hearing, nine minutes before the hearing was due to start.  He informed the Tribunal of the following:

    “Hello my name is Raphael. I've missed my hearing. I'm so sorry to say this I'd like to change this for tomorrow if this possible. I missed the alarm um sorry.”

11. The applicant had still not provided any documents in support of his application on 14 February 2018.

12. At 10:31am a hearing officer informed the member that the applicant had not arrived for his hearing, scheduled at 10:30am.  At 11:01am the hearing officer informed the member that the applicant had still not arrived for his hearing and was instructed by the member to record a “no-show”.  It seems that a request for postponement came into the Tribunal server at 10:21am, but was not uploaded to his electronic file until after he had been recorded as a “no-show” and his hearing had been cancelled.

13. The Tribunal considered the request for the hearing to be re-scheduled on 15 February 2018.  The member had four other student visa hearings listed on 15 February 2018 from 11:30am.  The applicant’s hearing was re-scheduled, as requested, early, at 8:30am on 15 February 2018, which the Tribunal considers to be reasonable, in the circumstances.  A written invitation was sent to the applicant on 14 February 2018 at 12:48pm, again including a request that he provide evidence of medical assessment.

14. The applicant attended the postponed hearing, but still did not provide any evidence that he had undertaken the medical assessments and confirmed orally at the hearing that he hadn’t.  He was granted additional time to provide the information.

15. For the following reasons, the Tribunal is remitting the matter for further consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is enrolled in a course of study and/or he has provided evidence of health check: cl.500.211 and cl.500.217.

17. The applicant is a 27 year old citizen of Brazil. He was granted a subclass 500 student visa offshore on 5 December 2016 and first arrived in Australia, holding that visa, on 20 January 2017. The visa ceased on 17 July 2017 and he applied for another student visa on 15 July 2017, which was refused because he did not meet the primary criteria for the grant of a subclass 500 visa because he did not meet cl.500.217.

    Medical Assessment and Public Interest Criteria (cl.500.217 and PIC4005)

18. Regulation 500.217(4) stipulates, relevantly, that the applicant satisfies public interest criteria 4005.

    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.

19. The delegate refused to grant the visa because the applicant did not satisfy PIC 4005 and consequently, at the time of application, did not satisfy primary criterion 500.217.

20. On 18 January 2018, the Tribunal invited the applicant to his hearing on 14 February 2018, requesting he provide evidence of his current medical assessment by the Department’s medical services provider to meet the health requirement for the visa.  In an email on 5 February 2018, the applicant informed the Tribunal that he had a new address in Mascot but did not provide any medical or health information.  His new address was noted in the Tribunal’s casemate system.  The hearing invitation letter was sent to the applicant again on 5 and 12 February 2018 including the same request that he provide the relevant health checks.  On 14 February 2018 the applicant did not attend his hearing and sent an email 10 minutes before the hearing was due to start saying he had slept through an alarm and requesting another hearing be scheduled for him on the following day.  This request was granted, he was invited to the hearing in writing.  He attended a second, postponed, hearing on 15 February 2018.

21. The applicant was granted time after the 15 February 2018 hearing to do the medical assessment. The applicant provided the Tribunal with documentary evidence that he undertook and paid for the medical assessments on 15 February 2018. A check of DIAC’s system, at the time of this decision, indicates that he has undertaken the medical assessments and that the information has been provided to the Department. The Tribunal is satisfied that the applicant meets cl.500.217.

22. Given the above finding, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a subclass 500 (Student) visa.

    DECISION

23. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the application meets the following criterion for a Subclass 500 (Student) visa:

    ·cl.500.217 of Schedule 2 to the Regulations.

    Jennifer Cripps Watts
    Member