Kaiva (Migration)

[2023] AATA 408

Kaiva (Migration) [2023] AATA 408 (1 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ilmars Kaiva

CASE NUMBER:  1827484

HOME AFFAIRS REFERENCE(S):          BCC2016/3926537

COUNTRY OF REFERENCE:                   Latvia

MEMBER:Brygyda Maiden

DATE:1 March 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 (Spouse) visa:

·PIC 4007(1)(aa) for the purposes of cl 820.223 of Schedule 2 to the Regulations.

Statement made on 01 March 2023 at 6:05pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – health criteria – cleared health examination provided upon review – decision under review remitted

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 820.223; Schedule 4, Public Interest Criterion 4007

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 7 September 2018 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the “Act”).

2. The applicant applied for the visa on 22 November 2016. The delegate refused to grant the visa as the applicant did not satisfy cl 820.223 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. The applicant appeared in person before the Tribunal on 21 February 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sponsor, Laima Kaiva. The Tribunal hearing was conducted with the assistance of an interpreter in the Latvian and English languages.  The applicant was not represented in relation to the review.

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

   Consideration of claims and evidence

5. The issue in this review is whether the applicant meets 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 the 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.

6. On 15 May 2018 and 30 July 2018, the Department requested that the applicant complete a health examination through the Department’s migration medical service provider. At the date of the delegate’s decision, the applicant had neither completed the health examination nor provided evidence of making an appointment. Although the delegate did not specify which part of PIC 4007 that the applicant had failed to meet, the delegate made clear that the health examination had not been completed and no appointment made. For these reasons, it appears at that time, the applicant had not complied with PIC 4007(1)(aa).

7. At the hearing, the applicant gave evidence that he was working for a small company that built fences.  He did not have any medical qualifications. On the morning of the hearing, the applicant still had not completed the health examination and had not provided evidence of having made an appointment.

8. Directly following the hearing, on 21 February 2023, the Tribunal wrote to the applicant inviting the applicant to undertake a health examination and provide evidence to the Tribunal that the health examination had been booked and had occurred by no later than 7 March 2023.

   Has the applicant undertaken a medical assessment (PIC 4007(1)(aa))?

9. Clause 4007(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.

10. On 22 February 2023, the applicant e-mailed the Tribunal and provided evidence that the applicant had booked a visa medical appointment with Bupa Medical Visa Services at 10am on 22 February 2023.  On the same day, the applicant provided a medical certificate indicating that he had presented for a visa medical that day and provided a receipt for payment for the various tests and examinations.

11. On 1 March 2023 an officer of the Tribunal accessed the Department’s Integrated Client Services Environment (“ICSE”) records in respect of the applicant.  Screenshots that were taken of these records indicate that on 1 March 2023 the ICSE records state: “finalised health requirement” were “recommended cleared”.

12. Based on the evidence before the Tribunal, the Tribunal is satisfied that the applicant meets PIC 4007(1)(aa) for the purposes of cl 820.223.

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

    decision

14. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 (Spouse) visa:

    ·PIC 4007(1)(aa) for the purposes of cl 820.223 of Schedule 2 to the Regulations.

    Brygyda Maiden

    
    

    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.