Jessy (Migration)

[2024] AATA 2452

Jessy (Migration) [2024] AATA 2452 (20 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Jafrina Alam Jessy
Mr Sayeef Mahmud

REPRESENTATIVE:  Mr Mohammad Shahadat Hossain (MARN: 1799395)

CASE NUMBER:  2404237

HOME AFFAIRS REFERENCE(S):          BCC2024/236621

MEMBER:Gabrielle Cullen

DATE:20 June 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:

·PIC 4005(1) for the purposes of cl 500.217 of Schedule 2 to the Regulations.

The Tribunal does not have jurisdiction in this matter with regard to the second named applicant.

Statement made on 20 June 2024 at 1:36pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – health criteria – medical assessment undertaken – ‘Auto Cleared’ – decision under review remitted

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – right to apply for review – outside the migration zone – No jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 347, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 500.217; Schedule 4, PIC 4005

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 21 February 2024 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958 (Cth) (the Act). This decision is reviewable under s 338(2) of the Act.

2. The applicants applied for the visas on 18 January 2024. The delegate refused to grant the visa on the basis that the first named applicant (now referred to as the applicant) did not satisfy cl 500.217 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4005 of Schedule 4 to the Regulations was not met.

3. The review application was lodged with the Tribunal on 7 March 2024. For the following reasons, the Tribunal has no jurisdiction to review the decision with regard to the second named applicant.

4. Section 347(2) of the Act specifies who has the right to apply for review of a decision that is reviewable under Part 5 of the Act. In the case of a decision described in s 338(2), an application for review may only be made by the non-citizen who is the subject of the decision and is physically present in the migration zone when the application for review is made: s 347(2)(a) and (3). ‘Migration zone’ is defined in s 5(1) of the Act and generally speaking means the Australian States and Territories.

5. The Department’s movement records show the second named applicant was outside the migration zone at the time the review application was lodged on 7 March 2024, as well as at the time the visa application was made on 18 Janaury 2024.  The Tribunal finds that the second named applicant was not in the migration zone at the relevant time. As such, the application for review with regard to the second named applicant  is not an application properly made under s 347 and it follows that the Tribunal does not have jurisdiction in this matter with regard to the second named applicant.

6. However, with regard to the first named applicant, n light of the new evidence received, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

7. 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 on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. According to the delegate’s decision record, the Department requested on 18 January 2024 that the applicant undertake a health examination. At the time of the delegate’s decision, the Department had no record of the applicant completing the required health examination or evidence that she had booked an appointment for such an examination. Therefore, the delegate found that the applicant did not satisfy PIC 4005(1)(a)(i) and accordingly she did not meet cl 500.217 of Schedule 2 to the Regulations.

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

10. 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.

11. According to the Department’s records (ICSE) for the applicant, on 29 May 2024 the applicant’s health requirements were finalised with the outcome recorded as ‘Auto Cleared’.

12. On the evidence before it, the Tribunal finds that the applicant has undertaken the required medical tests and now meets the requirement in PIC 4005(1) for the purposes of cl 500.217.

13. 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

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

15. The Tribunal does not have jurisdiction in this matter with regard to the second named applicant.

    Gabrielle Cullen
    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.