Freeland (Migration)

[2024] AATA 1083

Freeland (Migration) [2024] AATA 1083 (1 May 2024)

CORRIGENDUM

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Thomas Gary Freeland

REPRESENTATIVE:  Mrs Prisca Chinwe Eboh

CASE NUMBER:  2403972

HOME AFFAIRS REFERENCE(S):          BCC2020/1562765

MEMBER:Linda Holub

DATE OF DECISION:  1 May 2024

DATE CORRIGENDUM

SIGNED:8 May 2024

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

In paragraph 11:

The date of “4 November 2022” should be replaced by “9 April 2024”.

Linda Holub
Member

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Thomas Gary Freeland

REPRESENTATIVE:  Mrs Prisca Chinwe Eboh

CASE NUMBER:  2403972

HOME AFFAIRS REFERENCE(S):          BCC2020/1562765

COUNTRY OF REFERENCE:                   United States of America

MEMBER:  Linda Holub

DATE:  1 May 2024

PLACE OF DECISION:  Sydney

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

·PIC 4007(1)(aa) for the purposes of cl 820.223 of Schedule 2 to the Regulations.

Statement made on 1 May 2024 at 11:16am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – health requirements – evidence of required examination provided to tribunal – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 820.223, Schedule 4, criterion 4007(1)(aa)

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 15 February 2024 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 visa applicant applied for the visa on 16 May 2020. The delegate refused to grant the visa as the applicant did not satisfy cl 820.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4007 of Schedule 4 to the Regulations was not met.

3. On the evidence before it, the Tribunal considered it would be appropriate to make a favourable decision on the papers.

4. The applicant was represented in relation to the review.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this review is whether the visa applicant meets Public Interest Criterion (PIC) 4007 as required by the criteria for the grant of the visa. Public Interest Criterion 4007, 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. This last requirement may be waived in certain circumstances. The delegate in this case was not satisfied that the applicant meets the health requirement as he failed to undertake the required health examinations.

Has the applicant undertaken a medical assessment (PIC 4007(1)(aa))?

1. Clause 4007(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 IMMI15/144

2. According to the Department’s Decision Record which the applicant provided to the Tribunal he was requested to complete a Health examination through the Department’s migration medical services provider. On 28 August 2021 the request letter he was given 70 calendar days, from the date he was deemed to have received the letter, to provide the completed Health examination, or provide evidence that you had made an appointment.

3. Further request letters were sent to the applicant on 20 January and 14 June 2023. On each occasion he was advised that he had 28 days to provide the requested health examination.

4. At the date of the Department’s decision, the applicant did not complete the health examination, nor did he provide evidence of having made an appointment.

1. The Tribunal was provided with evidence that on 4 November 2022, the applicant had a medical appointment with BUPA Medical Visa Services and Department records show that he has been health cleared.

2. For these reasons the requirements in PIC 4007(1)(aa) are met.

3. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for the visa.

DECISION

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

   ·PIC 4007(1)(aa) for the purposes of cl 820.223 of Schedule 2 to the Regulations.

Linda Holub Member

ATTACHMENT

Migration Regulations 1994

Schedule 4

4007  (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)       subject to subclause (2) — 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 (1A); 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.

(1A)  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.

(1B)  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 (1A)(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.

(2)The Minister may waive the requirements of paragraph (1)(c) if.

(a)       the applicant satisfies all other criteria for the grant of the visa applied for; and

(b)      the Minister is satisfied that the granting of the visa would be unlikely to result in:

(i)undue cost to the Australian community; or

(ii)undue prejudice to the access to health care or community services of an Australian citizen or permanent resident.