Diallo (Migration)

[2024] AATA 3342

Diallo (Migration) [2024] AATA 3342 (3 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Fatoumata Diamy Diallo

VISA APPLICANT:  Mr Chernor Mamadu Jalloh

REPRESENTATIVE:  Ms Krshna Inocalla Capaque

CASE NUMBER:  2419901

HOME AFFAIRS REFERENCE(S):          2019022305

MEMBER:Justine Clarke

DATE:3 September 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:

·PIC 4005(1) for the purposes of cl 117.223 of Schedule 2 to the Regulations.

Statement made on 03 September 2024 at 2:20pm

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – health criteria – evidence of medical assessments – decision under review remitted   

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 117.223; Schedule 4, Public Interest Criterion 4005; rr 1.03, 1.14

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made on 14 May 2024 by a delegate of the Minister for Home Affairs to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. On 30 May 2019, the visa applicant applied for the visa.

3. The review applicant provided the Tribunal with a copy of the delegate’s refusal decision (the primary decision). The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 117.223 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. The primary decision contains an extract of PIC 4005, and it is also extracted in the attachment to the current decision. PIC 4005 requires the visa applicant, in certain circumstances, to undergo medical assessment, and to be free of certain diseases or conditions that may impact on the community. The delegate did not expressly specify which part of PIC 4005 had not been met. Rather, the delegate found that, within the requested timeframe, the visa applicant had not provided evidence that he had undertaken, or made arrangements to undertake, a medical examination through an approved medical services provider.

4. On 26 June 2024, the review applicant applied to the Tribunal for the review of the primary decision. The review applicant was represented in relation to the review.

5. On 19 July 2024, an officer of the Tribunal wrote to the Department to inquire as to the visa applicant’s ‘HAP ID’.

6. On 22 July 2024, the Tribunal was informed that the Health Team within the Department had advised that the visa applicant had completed ‘health’ and was recorded as having a ‘meets’ opinion as at 11 June 2024.

7. On 28 August 2028, the presiding Member requested an officer of the Tribunal to contact the Department to request that the Department’s Integrated Client Services Environment (ICSE) records be updated in respect of the visa applicant.

8. On 3 September 2024, the Department informed the Tribunal that the ICSE records had been updated in respect of the visa applicant and a copy of the Form 884—Opinion of a Medical Officer of the Commonwealth, dated 11 June 2024, was sent to the Tribunal.

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

10. 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

11. The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:

    ·PIC 4005(1) for the purposes of cl 117.223 of Schedule 2 to the Regulations.

    Justine Clarke
    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.