Diallo (Migration)
[2025] ARTA 922
•25 March 2025
DIALLO (MIGRATION) [2025] ARTA 922 (25 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Ms Fatoumata Diamy Diallo
Visa Applicant: Mr Juhey Jalloh
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2419904
Tribunal:General Member J Clarke
Place:Melbourne
Date: 25 March 2025
Decision:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, in accordance with the order that the visa applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:
· PIC 4005(1)(aa)–(c) for the purposes of cl 117.223 of Schedule 2 to the Regulations.
Statement made on 25 March 2025 at 4:30pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – health criteria – Medical Officer of the Commonwealth assessment provided upon review – decision under review remitted
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5(1), 65, 348
Migration Regulations 1994, Schedule 2, cls 117.223; Schedule 4, Public Interest Criteria 4005STATEMENT OF REASONS
APPLICATION FOR REVIEW
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) Subclass 117 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
On 30 May 2019, the visa applicant applied for the visa.
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.
On 26 June 2024, the review applicant applied to the Administrative Appeals Tribunal (AAT) for the review of the primary decision. The review applicant was represented in relation to the review.
On 13 October 2024, the AAT was abolished. On 14 October 2024, the Administrative Review Tribunal (the Tribunal) was established. Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), an application for review to the AAT that was not finalised before 14 October 2024 is taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
Section 348A(1) of the Act provides, ‘[t]he Minister is taken to be a non-participating party to a proceeding for review of a reviewable migration decision or a reviewable protection decision for the purposes of the ART Act’. ART Act is defined in s 5(1) as meaning the Administrative Review Tribunal Act 2024 (Cth).
Following various correspondence between the Tribunal and the Department which need not be detailed in these reasons, on 25 March 2025, the Department provided the Tribunal with a copy of Form 884—Opinion of a Medical Officer of the Commonwealth, dated 16 December 2024, concerning the visa applicant. The Opinion relevantly stated:
The applicant has been assessed against Public Interest Criterion (PIC) 4005 [see attached extract] and meets the health requirement for a permanent stay in Australia, subject to the applicant providing a signed undertaking in accordance with PIC 4005(1)(d).
Based on the evidence before the Tribunal, the Tribunal is satisfied that the visa applicant meets PIC 4005(1)(aa)–(c).
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
The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, in accordance with the order that the visa applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:
PIC 4005(1)(aa)–(c) for the purposes of cl 117.223 of Schedule 2 to the Regulations.
Representative for the Applicant: Ms Krshna Inocalla Capaque
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.
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