Eosanurak (Migration)

[2023] AATA 4086

Eosanurak (Migration) [2023] AATA 4086 (28 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jitti Eosanurak

CASE NUMBER:  2316022

HOME AFFAIRS REFERENCE(S):          BCC2023/2730577

MEMBER:Amanda Mendes Da Costa

DATE:28 November 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Temporary Activity (Class GG) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 408 (Temporary Activity) visa:

·PIC 4005(1)(aa) for the purposes of cl 408.216(1) of Schedule 2 to the Regulations.

Statement made on 28 November 2023 at 12.01pm

CATCHWORDS

MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – health requirement – Medical Officer of the Commonwealth assessment – applicant undertook medical assessment upon review – decision under review remitted       

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 408.216; Schedule 4, Public Interest Criterion 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 Home Affairs on 21 September 2023 to refuse to grant the applicant a Temporary Activity (Class GG) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 15 May 2023. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 408.216(1) 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.

3. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant based on the material before it, pursuant to s.360(2)(a) of the Act.

4. In making its decision the Tribunal has taken into consideration the information in both the Departmental and Tribunal files.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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. The delegate found that the applicant in this case did not complete the required health examination.

   Has the applicant undertaken a medical assessment (PIC 4005(1)(aa))?

7. Public Interest Criterion 4005(1)(aa) requires that if the applicant is in a specified class of persons, he or she must undertake the specified medical assessment and be assessed by a specified person unless a Medical Officer of the Commonwealth (MOC) decides otherwise. The relevant class of persons and assessments are specified in IMMI 15/144.

8. The Tribunal is satisfied that the applicant is in the class of persons specified in the instrument and based on information provided by the Department on 15 November 2023, the Tribunal is satisfied that the applicant has undertaken the specified medical examination.

9. For these reasons, the requirements in PIC 4005(1)(aa) are met and therefore cl 408.216(1) is met.

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 Temporary Activity (Class GG) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 408 (Temporary Activity) visa:

    ·PIC 4005(1)(aa) for the purposes of cl 408.216(1) of Schedule 2 to the Regulations.

    Amanda Mendes Da Costa
    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.