Goh (Migration)

[2017] AATA 1944

Goh (Migration) [2017] AATA 1944 (21 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Zi Linn Goh

CASE NUMBER:  1706418

DIBP REFERENCE(S):  BCC2017/466416

MEMBER:Tim Connellan

DATE:21 August 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 21 August 2017 at 12:54pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Health criteria – Evidence of medical examination – Medical clearance

LEGISLATION

Migration Act 1958, ss 65, 360(2)(a)

Migration Regulation 1994, Schedule 2 cl.500.217, 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 Immigration on 20 March 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 5 February 2017. The delegate refused to grant the visa on the basis that the applicant did not satisfy 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. Specifically, the applicant failed to provide evidence of having completed a medical examination.

3. The applicant applied to the Tribunal for review of that decision.

4. The tribunal wrote to the applicant requesting medical evidence that met the requirements.

5. The applicant provided evidence she had a medical assessment with BUPA and results would be submitted to the Department.

6. The Tribunal investigated ICSE records which showed that effective 04/07/2017 the applicant had “Finalised Health Requirement” and the Qualifier showed “Recommend Cleared”.

7. An email from the Health Programmes Support Contact Management Team dated 13 July 2017 confirmed that “Recommended Cleared” was a clearance with a validity of 12 months.

8. After considering the available evidence, the Tribunal found that pursuant to section 360(2)(a) of the Act, it should decide the review in the applicant’s favour. Therefore no hearing was required.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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 applicant in this case failed to provide the department with evidence she satisfied the medical requirements.

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

11. 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.

12. Being a national of Singapore, under Schedule 2, the applicant was required to provide satisfactory evidence of having completed a medical examination.

13. On 13 July 2017 the Tribunal received email from Contract Management confirming that the applicant had completed the required medical examinations and was given the “Recommended Cleared” outcome on 4 July 2017

14. The Tribunal is satisfied that this is evidence the applicant satisfies PIC 4005(1)(aa).

15. For these reasons the requirements in PIC 4005(1)(aa) are met.

16. 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

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

    Tim Connellan
    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.