DIAZ (Migration)

[2017] AATA 1857

DIAZ (Migration) [2017] AATA 1857 (4 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  JOE-AN MICCEL DIAZ

CASE NUMBER:  1710378

DIBP REFERENCE(S):  BCC2017/974598

MEMBER:Richard West

DATE:4 October 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

·PIC 4005 for the purposes of cl.500.217 of Schedule 2 to the Regulations.

STATEMENT MADE ON 04 OCTOBER 2017 AT 11:14AM

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 – Health assessment criteria met – Medical Officer of Commonwealth opinion

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2 cl.500.217, Public Interest Criterion (PIC) 4005

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 15 May 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 13 March 2017. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.500.217 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 were not met.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. 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.

5. The delegate found that, at the time of the delegate’s decision, the applicant had not provided evidence of undertaking or booking an appointment to undertake her health assessment.  The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant met Public Interest Criterion (PIC) 4005.

6. Subsequent to the decision the applicant provided to the Department and to this Tribunal a Form 884: Opinion of a Medical Officer of the Commonwealth, dated 12 July 2017, stating that the applicant had been assessed against Public Interest Criterion (PIC) 4005 and meets the health requirement for a permanent stay in Australia.

7. On the basis of this evidence the Tribunal is satisfied that the applicant meets Public Interest Criterion (PIC) 4005. In the circumstances no hearing is required.

8. 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.

9. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

   ·PIC 4005 for the purposes of cl.500.217 of Schedule 2 to the Regulations.

   Richard West
   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.