Housayri (Migration)

[2023] AATA 1011

Housayri (Migration) [2023] AATA 1011 (20 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Joma Housayri

VISA APPLICANTS:  Mrs Fatoom Chiro
Miss Vindara Joma Housayri
Mr Givara Joma Housayri
Mr Robin Joma Housayri

REPRESENTATIVE:  Mrs Fatme Akkileh (MARN: 1576810)

CASE NUMBER:  1916003

HOME AFFAIRS REFERENCE(S):          2013000952

COUNTRY OF REFERENCE:                   Syria

MEMBER:Jennifer Cripps Watts

DATE:20 April 2023

PLACE OF DECISION:  Canberra

DECISION:The Tribunal remits the application for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 309 (Spouse (Provisional)) visa:

·PIC 4007(1)(aa) for the purposes of cl 309.323 of Schedule 2 to the Regulations.

Statement made on 20 April 2023 at 5:25pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – health examination – notification received that applicants’ eMedical cases submitted to department – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 309.323; Schedule 4, PIC 4007

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 10 April 2019 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visas on 29 July 2013. The delegate refused to grant the visa as the first named visa applicant (the applicant) did not satisfy cl 309.323 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. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The issue on the review is whether the applicants meet Public Interest Criterion (PIC) 4007 as required by the criteria for the grant of the visa.  PIC 4007, as it applies to this case, is extracted in the attachment to this decision. It requires an 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 applicants in this case did not undertake the required medical assessment.

5. On several occasions, from 2018 to 2019, the Department requested that the applicants provide the completed health examination evidence (PIC 4007)(1)(aa) required for the purpose of cl 309.323. The visas were refused because the applicant did not provide evidence of having undertaken the required health examination. The secondary applicants’ visas were also refused.

6. On 9 March 2023, in response to the review applicant’s request made to the Tribunal for priority processing of the review application, they were advised in writing that priority had been granted. 

7. On 27 March 2023, the Tribunal registry wrote to the review applicant and informed them that one of the requirements for the grant of the visa is that the applicants must meet the health requirements and that there was no evidence before the Tribunal that the applicants meet the health requirements.  They were invited to have the required health checks and given a weblink to access information relating to making arrangements for a medical assessment.  In the letter, the applicant was asked to provide the information by 24 April 2023.

8. On 31 March 2023 the applicant’s matter was constituted to this member.  On 18 April 2023, the member reviewed the Department and Tribunal files relating to the visa applications that are the subject of this review. 

   Is the applicant required to undertake a medical assessment (PIC 4007(1)(aa))?

9. Clause 4007(1)(aa) requires, at the time of decision, that if the applicant is in a specified class of persons they 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. 

10. The first question for the Tribunal is whether the visa applicants are in a class of persons specified in the instrument relating to the PIC 4007 requirements?  If the visa applicants are specified in the relevant instrument, they are required to undertake the specified medical tests to meet PIC 4007.  In this case, the applicants are in a class of persons specified in IMMI 15/144.

11. The Tribunal has received notification that applicants’ eMedical cases have been submitted to the Department of Home Affairs on 19 April 2023 for the following applicants, relating to visa request ID 446106373:

    Fatoom Chiro, born 1977

    Vindara Joma Housayri, born 2000

    Givara Joma Housayri, born 2005

    Robin Joma Housayri, born 2010

12. At the time of this decision, the applicants meet PIC 4007(1)(aa).

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

    DECISION

14. The Tribunal remits the application for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 309 (Spouse (Provisional)) visa:

    ·PIC 4007(1)(aa) for the purposes of cl 309.323 of Schedule 2 to the Regulations.

    Jennifer Cripps Watts

    
    

    Senior 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.