Dinh (Migration)

[2022] AATA 1936

Dinh (Migration) [2022] AATA 1936 (15 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Thi Kim Dung Dinh

MIGRATION AGENT:  Pauline Lam (MARN 9476142)

CASE NUMBER:  1903363

HOME AFFAIRS REFERENCE(S):          BCC2016/1375372

MEMBER:Michael Cooke

DATE:15 June 2022

PLACE OF DECISION:  Sydney

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

·PIC4007 for the purposes of cl. 820.223 of Schedule 2 to the Regulations

Statement made on 15 June 2022 at 11:17am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – health requirements – evidence of medical assessment provided to tribunal – recommended cleared – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 820.223, Schedule 4, criterion 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 Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 4 April 2016 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy PIC4007 and resultingly cl 820.223 because she did not tender a requested health clearance in 2018.

4. The applicant was represented in relation to the review by her registered migration agent (Pauline Lam MARN 9476142).

5. On 15 June 2022 a Departmental officer informed the Tribunal of the following information:

   “I can confirm that Ms Dinh was assessed for permanent stay and her health case was electronically finalised as ‘Recommend Cleared’ (meets) on 22 April 2022”.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant can meet PIC4007 and subsequently cl.820.223 of the Regulations.

8. The Tribunal finds that the applicant has now tendered the requested information (her health clearance) - pursuant to PIC4007 to the Department.

9. Therefore, the applicant now meets the prerequisite criterion in PIC4007 and subsequently cl.820.223 of the Regulations.

10. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.

    DECISION

11. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criterion for a Subclass 820 (Partner) visa:

    ·PIC4007 for the purposes of cl. 820.223 of Schedule 2 to the Regulations

    Michael Cooke
    Senior Member