Geng (Migration)

[2019] AATA 5866

Geng (Migration) [2019] AATA 5866 (20 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Chunyan Geng

CASE NUMBER:  1914813

DIBP REFERENCE(S):  BCC2019/2246942

MEMBER:Kira Raif

DATE:20 September 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 (Visitor) visa:

·PIC 4005(1)(c) for the purposes of cl.600.213 of Schedule 2 to the Regulations.

Statement made on 20 September 2019 at 1:37pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – health criteria – undertaking the required health examination – applicant has auto cleared upon review – decision under review remitted   

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.213; Schedule 4 Public Interest Criterion 4005; r 2.25

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 23 May 2019 to refuse to grant the applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 24 April 2019. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.600.213 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.

3. No hearing was held in this case as the Tribunal has formed the view that it was able to make a favourable decision on the material before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

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 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. Public interest criterion 4005(1)(a) and (b) require the applicant to be free from tuberculosis and 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.

6. Public interest criterion 4005(1)(c) requires the applicant be free from a disease or condition which would be likely to require health care or community services or which would meet the medical criteria for provision of a community service during the specified period; and  provision of the health care or community services (regardless of whether it will actually be used in connection with the applicant) would be likely to: result in a significant cost to the Australian community in the areas of health care and community services; or prejudice access of an Australian citizen or permanent resident to health care or community services. For specified temporary visas, certain specified health care and community service are excluded from this consideration: PIC 4005(3).

7. In determining whether a person meets PIC 4005(1)(a), (b) or (c) r.2.25A requires the Tribunal to seek the opinion of a Medical Officer of the Commonwealth (MOC) unless: the application is for a temporary visa and there is no information known to Immigration to the effect that the person may not meet those requirements; or the application is for a permanent visa and made from a specified country and there is no information known to Immigration to the effect that the person may not meet those requirements.  Where an opinion of a MOC is required, the Tribunal must take it be correct: r.2.25A(3).

   Is the applicant free from the relevant diseases or conditions (PIC 4005(1)(a), (b), (c))?

8. The primary decision record indicates that in April 2019 the delegate wrote to the applicant requesting her to undertake a health examination. There is no evidence that the applicant has done so and the delegate was not satisfied that the applicant met PIC 4005.

9. Electronic records before the Tribunal indicate that in July 2019 a notation was made on the Departmental system showing that the applicant has ‘auto cleared’ the health requirements. There is nothing before the Tribunal to indicate that the assessment was invalid.

10. Having regard to that information, the Tribunal finds that the applicant satisfies public interest criterion 4005(1)(c) for the purpose of cl. 600.213.

    Conclusion

11. 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

12. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 (Visitor) visa:

    ·PIC 4005(1)(c) for the purposes of cl.600.213 of Schedule 2 to the Regulations.

    Kira Raif
    Senior Member