Davuiqalita (Migration)

[2024] AATA 3850

Davuiqalita (Migration) [2024] AATA 3850 (25 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Akesa Tagilala Mitchell Davuiqalita
Mr Peni Lagilagi
Master Jonathan Graham Albert Lagilagi

REPRESENTATIVE:  Mrs Jennifer Eileen Samuta

CASE NUMBER:  2425087

HOME AFFAIRS REFERENCE(S):          BCC2024/445786

MEMBER:Karen McNamara

DATE:25 September 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Temporary Activity (Class GG) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 408 (Temporary Activity) visa:

·PIC 4005(1)(aa) for the purposes of cl 408.216 of Schedule 2 to the Regulations.

Statement made on 25 September 2024 at 10:38am

CATCHWORDS
MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – health criteria – department’s confirmation that required medical examinations undertaken – members of family unit – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), Schedule 2, cls 408.216, 408.311, Schedule 4, criterion 4005(1)(aa)

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 Home Affairs on 15 July 2024, to refuse to grant the applicants Temporary Activity (Class GG) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 29 January 2024. The delegate refused to grant the visas on the basis that the first named applicant Ms Akesa Tagilala Mitchell Davuiqalita (now referred to as the applicant) did not satisfy cl 408.216 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4005 of Schedule 4 to the Regulations was not met.

3. The delegate also found that the second named applicant, Mr Peni Lagilagi and third named applicant Master Jonathan Graham Albert Lagilagi, could not be granted a Subclass 408 visa, as they did not meet the secondary visa criterion (cl.408.311) requiring them to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 408 visa.

4. The applicants applied to the Tribunal on 26 July 2024, for review of the delegate’s decision. The application was accompanied by a copy of the primary decision record. The Tribunal also has before it the Department file containing all information before the delegate at the time of their decision.

5. In reaching its decision the Tribunal did not consider a hearing to be necessary as it was able to find in favour of the applicants based on the material before it, pursuant to                s 360(2)(a) of the Act.

6. The applicants were represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this review is whether the visa applicant meets Public Interest Criterion (PIC) 4005 as required by the criteria for the grant of the visa. Public Interest Criterion 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. At the time the delegate made their decision the applicants had not provided evidence to support they had undertaken a medical assessment.

   Has the applicant undertaken a medical assessment (PIC 4005(1)(aa))?

9. 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.

10. Since the delegate’s decision, the Tribunal has received confirmation from the Department that the applicants undertook the required medical examinations and met the health requirements for their subclass 408 visa applications on 28 and 30 August 2024. On the basis of this information, the Tribunal accepts that the first named applicant satisfies the requirements of PIC 4005(1)(aa).

11. The second named applicant (Mr Peni Lagilagi) and third named applicant (Master Jonathan Graham Albert Lagilagi) applied on the basis of being a member of the family unit of the first named applicant (Ms Akesa Tagilala Mitchell Davuiqalita). The applications by Mr Peni Lagilagi and Master Jonathan Graham Albert Lagilagi will be determined by reference to the outcome of Ms Akesa Tagilala Mitchell Davuiqalita‘s application on remittal to the Department for consideration.

12. 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

13. The Tribunal remits the applications for Temporary Activity (Class GG) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 408 (Temporary Activity) visa:

    ·PIC 4005(1)(aa) for the purposes of cl 408.216 of Schedule 2 to the Regulations.

    Karen McNamara
    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.