Dave (Migration)

[2019] AATA 349

Dave (Migration) [2019] AATA 349 (30 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Filipe Ravono Dave
Mrs Rita Meria
Ms Nunia Semaema Dave
Ms Tanya Balenacagi Dave
Ms Maraiah Dave

CASE NUMBER:  1702436

HOME AFFAIRS REFERENCE(S):           BCC2016/3710453

CLF2017/22548

MEMBER:Lilly Mojsin

DATE:30 January 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for Temporary Work (Long Stay Activity) (Class GB) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 401 (Temporary Work (Long Stay Activity)) visa:

·PIC 4005(1)(aa) for the purposes of cl.401.216 of Schedule 2 to the Regulations.

Statement made on 30 January 2019 at 2:57pm

CATCHWORDS

MIGRATION – Temporary Work (Long Stay Activity) (Class GB) visa – Subclass 401 Temporary Work (Long Stay Activity)) – health criteria – medical assessments now undertaken – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 401.216, Schedule 4, PIC 4005

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 23 January 2017 to refuse to grant the applicants Temporary Work (Long Stay Activity) (Class GB) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 4 November 2016. The delegate refused to grant the visa on the basis that the first named applicant (now referred to as the applicant) did not satisfy cl.401.216 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.

3. The applicant was represented in relation to the review by his registered migration agent.

4. The Tribunal did not invite the applicant to attend a hearing as it decided it should make a favourable decision on the available evidence (s.360(2)).

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this review is whether the visa applicants meet Public Interest Criterion (PIC) 4005 as required by the criteria for the grant of the visa.

6. Public Interest Criterion 4005, as it applies to this case, is extracted in the attachment to this decision. It requires the applicants, in certain circumstances, to undergo medical assessment, and to be free of certain diseases or conditions that may impact on the community.

7. Public Interest Criterion 4005(1)(aa) requires that if the 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. The relevant class of persons and assessments are specified in IMMI 13/114.

8. The Tribunal finds on the evidence before it that the applicants are citizens of Fiji. The Tribunal therefore finds that the applicants are a class of persons specified by the Minister who must undertake a medical assessment and be assessed by specified persons: Legislative Instrument IMMI 13/114.

9. The Tribunal is satisfied from the evidence before, being ISCE records, in respect of the applicant, that he has now undergone the required medical assessments and therefore  satisfies PIC 4005 (1)(aa).

10. The Tribunal notes that there is no evidence before it to indicate that the applicants’ circumstances require any additional medical assessments prescribed under Column E of Schedule 3 to IMMI 13/114.

11. 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

12. The Tribunal remits the application for Temporary Work (Long Stay Activity) (Class GB) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 401 (Temporary Work (Long Stay Activity)) visa:

    ·PIC 4005(1)(aa) for the purposes of cl.401.216 of Schedule 2 to the Regulations.

    Lilly Mojsin
    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.