Hong (Migration)

[2020] AATA 4230

Hong (Migration) [2020] AATA 4230 (6 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Anthony Teng Hong

CASE NUMBER:  2007285

DIBP REFERENCE(S):  CLF2018/8488

MEMBER:Justine Clarke

DATE:6 October 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 836 (Carer) visa:

·PIC 4005(1)(ab) for the purposes of cl.836.223 of Schedule 2 to the Regulations.

Statement made on 06 October 2020 at 12:02pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – health criteria – evidence of assessment by medical officer of commonwealth accessed by tribunal – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 836.223, 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 Immigration on 30 March 2020 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).

2. On 29 January 2018, the applicant applied for the visa.

3. At the time of application, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative): item 1123B of Schedule 1 to the Migration Regulations 1994 (the Regulations). The applicant seeks to satisfy the criteria for the grant of a Subclass 836 (Carer) visa. The criteria for a Subclass 836 visa are set out in Part 836 of Schedule 2 to the Regulations. The primary criteria to be met include cl.836.223.

4. The applicant provided the Tribunal with a copy of the delegate’s decision. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.836.223 of Schedule 2 to the Regulations. The primary decision contains the text of cl.836.223. Public Interest Criterion (‘PIC’) 4005 of Schedule 4 to the Regulations is extracted in the attachment to this decision. PIC 4005(1)(ab) requires an applicant to comply with any request by a Medical Officer of the Commonwealth (MOC) to undertake a medical assessment. The delegate found that the applicant did not meet PIC 4005(1)(ab). Accordingly, the delegate refused to grant the visa because the health criteria in PIC 4005 was not met.

5. On 20 April 2020, the applicant applied to the Tribunal for review of the primary decision. The applicant was represented in relation to the review by his registered migration agent.

6. The Tribunal’s file evidences that, on 1 July 2020, an officer of the Tribunal accessed the Department’s Integrated Client Services Environment (ICSE) records in respect of the applicant. The screenshot taken of this record at this time evidences that the applicant meets the health requirement.

7. The Tribunal also notes the case note on the Tribunal’s file which evidences the applicant’s representative as stating in a telephone conversation with an officer of the Tribunal that her client’s visa had been refused because of health checks and that she understood that the required checks had been completed.  

8. Having reviewed the material before it, the Tribunal formed the view that a hearing was not needed. The Tribunal determined that 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.

9. Based on the evidence before the Tribunal, the Tribunal is satisfied that the applicant meets PIC 4005(1)(ab).

10. 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

11. The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 836 (Carer) visa:

    ·PIC 4005(1)(ab) for the purposes of cl.836.223 of Schedule 2 to the Regulations.

    Justine Clarke
    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.