Ho (Migration)

[2021] AATA 450

Ho (Migration) [2021] AATA 450 (25 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Kuen Kuen Alice Ho

CASE NUMBER:  1904206

HOME AFFAIRS REFERENCE(S):          CLF2017/108949

MEMBER:Russell Matheson

DATE:25 January 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 835 (Remaining Relative) visa:

·PIC 4005(1)(d) for the purposes of cl.835.223 of Schedule 2 to the Regulations.

Statement made on 25 January 2021 at 1:14pm      

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative visa) – health criteria in Public Interest Criterion 4005 is met – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 835.223, Schedule 4, PIC 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 18 February 2019 to refuse to grant the applicant a Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 16 November 2017. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.835.223 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. On 14 December 2020, the Tribunal received advice from the Department of Home Affairs that the applicant now meets PIC 4005. It also received a copy of Bupa Medical Visa Services, ‘Opinion of a review officer of the Commonwealth’ dated 9 December 2020.  This advised that the applicant has been assessed against PIC 4005 and meets the requirements for a permanent stay in Australia, subject to the applicant providing a signed undertaking in accordance with PIC 4005(1)(d). The review officer based their opinion on available medical and radiological records. Considering the new evidence received, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

4. 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.

   DECISION

5. The Tribunal remits the application for a Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 835 (Remaining Relative) visa:

   ·PIC 4005(1)(d) for the purposes of cl.835.223 of Schedule 2 to the Regulations.

   Russell Matheson
   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.