Erugamoni (Migration)

[2022] AATA 1416

Erugamoni (Migration) [2022] AATA 1416 (17 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sridhar Yadav Erugamoni

CASE NUMBER:  2200483

HOME AFFAIRS REFERENCE(S):          BCC2020/1351621

MEMBER:David Barker

DATE:17 May 2022

PLACE OF DECISION:  Sydney

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(1) for the purposes of cl 500.217 of Schedule 2 to the Regulations.

Statement made on 17 May 2022 at 10:11am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – health criteria – departmental records show requested medical assessment completed – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.217, Schedule 4, criterion 4005(1)

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 22 December 2021 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 11 April 2020. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of 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 was not met.

4. In reaching its decision the Tribunal was able to find in favour of the applicant on the basis of the material before it and determined not to invite the applicant to appear at a hearing pursuant to section 360(2)(a) of the Act.

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 PIC 4005 as required by the criteria for the grant of the visa.

7. PIC 4005 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 applicant in this case was required to submit the results of a medical and x-ray examination.

8. On 11 March 2022 the applicant advised the tribunal that he had an appointment with Bupa Medical Visa Services on 31 March 2022.

9. On 29 April 2022 the applicant contacted he had completed the required medical examination and chest x-ray.

10. A review of Departmental records on 4 May 2022 shows the applicant has complied with the requested medical assessment and is recorded as having finalised this health requirement on 30 April 2022.

11. Accordingly, on the basis of this evidence, the Tribunal has determined that the applicant satisfies PIC 4005(1).

12. 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

13. 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(1) for the purposes of cl 500.217 of Schedule 2 to the Regulations.

    David Barker
    Member