Dela Cruz (Migration)

[2019] AATA 4944

Dela Cruz (Migration) [2019] AATA 4944 (23 September 2019)

Corrigendum

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Angelie Cantillo Dela Cruz

CASE NUMBER:  1900295

DIBP REFERENCE(S):  BCC2016/4337460

MEMBER:Peter Vlahos

DATE OF DECISION:  23 September 2019

DATE CORRIGENDUM

SIGNED:13 November 2019

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

1.    The phrase “cl.820.244(1A)” on covering page one should be replaced by the phrase “cl.820.224(1A)”

2.    The phrase “cl.820.244(1A)” in paragraph two of page two should be replaced by the phrase “cl.820.224(1A)”

3.    The phrase “cl.820.244(1A)” in paragraph seven of page two should be replaced by the phrase “cl.820.224(1A)”

Peter Vlahos

Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Angelie Cantillo Dela Cruz

CASE NUMBER:  1900295

DIBP REFERENCE(S):  BCC2016/4337460

COUNTRY OF REFERENCE:                   Philippines

MEMBER:Peter Vlahos

DATE:23 September 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 (Spouse) visa:

·PIC 4007 for the purposes of cl.820.244 (1A) of Schedule 2 to the Regulations.

Statement made on 23 September 2019 at 10:44am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – health criteria – medical results/examination forwarded to the Department – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 820.224; Schedule 4, PIC 4007

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 18 December 2018 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 22 December 2016. The delegate refused to grant the visa as the applicant did not satisfy cl.820.244(1A) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4007 of Schedule 4 to the Regulations was not met.

3.    The applicant appeared before the Tribunal on 23 September 2019 to give evidence and present arguments.

4.    The applicant was represented in relation to the review by her registered migration agent.

5.    On 7 February 2019 the Tribunal received information from the applicant’s representative which indicated that the applicant had completed all the health requirements. The Tribunal was provided with a confirmation (in writing dated 4 February 2019)[1]. The Tribunal was further advised by the applicant’s registered migration agent that the medical results/examination had been forwarded to the Department. The Tribunal is satisfied based on this information, that at the time of this decision the applicant meets the health requirements of PIC 4007.

[1] AAT File Folio [14]

6.    In light of the new evidence received, the Tribunal is satisfied that the criterion of PIC 4007 is met and has concluded that the matter should be remitted for reconsideration.

decision

7.    The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

·PIC 4007 for the purpose of cl.820.244 (1A) of Schedule 2 to the Regulations

Peter Vlahos

Member

ATTACHMENT

Migration Regulations 1994

Schedule 4

1. (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)      subject to subclause (2) — 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 (1A); 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.

   (1A)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.

   (1B)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 (1A)(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.

   (2)The Minister may waive the requirements of paragraph (1)(c) if.

   (a)     the applicant satisfies all other criteria for the grant of the visa applied for; and

   (b)     the Minister is satisfied that the granting of the visa would be unlikely to result in:

   (i)undue cost to the Australian community; or

   (ii)undue prejudice to the access to health care or community services of an Australian citizen or permanent resident.