Dao (Migration)

[2021] AATA 740

Dao (Migration) [2021] AATA 740 (18 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Le Nguyen Dao

CASE NUMBER:  1900920

HOME AFFAIRS REFERENCE(S):          BCC2018/47982111

MEMBER:Nicole Burns

DATE:18 March 2021

PLACE OF DECISION:  Melbourne

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 18 March 2021 at 10:22am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – health criteria – examination by approved medical services provider – auto cleared for finalised health requirement – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), Schedule 2, cl 600.213(1), Schedule 4, criterion 4005(1)

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 24 December 2018 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 31 October 2018. According to the delegate’s decision record, 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. The delegate did not specify which sub-paragraph of PIC 4005 had not been met. Rather, the delegate found that, within the requested timeframe, the applicant had not provided evidence that he had undertaken, or made arrangements to undertake, a chest x-ray and medical examination through an approved medical services provider. It appears to the Tribunal that the delegate refused to grant the visa based on the applicant failing to satisfy PIC 4005(1).

3. On 14 January 2019, the applicant applied to the Tribunal for review of the primary decision. The applicant was represented in relation to the review by his registered migration agent.

4. For the reasons that follow the Tribunal has determined that it was able to find in favour of the applicant based on the material before it, and therefore a hearing was not necessary, pursuant to s.360(2)(a) of the Act.

5. According to information on the Department’s Integrated Client Services Environment (ICSE) records, the applicant was ‘auto cleared’ for the ‘finalised health requirement’ on 2 April 2019.

6. Based on the evidence before the Tribunal, the Tribunal is satisfied that the applicant meets PIC 4005(1).

7. 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

8. 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.

   Nicole Burns
   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.