Kandel (Migration)

[2025] ARTA 2122

KANDEL (MIGRATION) [2025] ARTA 2122 (16 JULY 2025)

DECISION AND  

REASONS FOR DECISION

Applicant:Mr Ram Prasad Kandel

Respondent:  Minister for Immigration and Citizenship

Tribunal Number:  2509157

Tribunal:General Member X Emery

Place:Sydney

Date:  16 July 2025

DECISION:The Tribunal sets aside the decision under review and remits the application for reconsideration, with the order that the applicant meets the following criteria for a Subclass 500 visa:

·Public interest criterion 4005(1)(aa) for the purposes of cl 500.217 of Schedule 2 to the Regulations.

Statement made on 16 July 2025 at 10:21am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – health criteria – medical assessment details upon review – decision under review remitted  

LEGISLATION

Administrative Review Tribunal Act 2024 (Cth), s 106
Migration Act 1958 (Cth), s 65
Migration Regulations 1994, Schedule 2, cl 500.217; Schedule 4, Public Interest Criterion 4005

STATEMENT OF REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 28 June 2024. The delegate refused to grant the visa on 7 February 2025 because there was no evidence the applicant had completed the health examination required to satisfy Public Interest Criterion (PIC) 4005(1)(aa). As a result, the applicant did not meet PIC 4005 and, consequently, cl 500.217 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

3. On 5 March 2025 the applicant applied for review of the delegate’s decision and provided a copy of the delegate’s decision record with his review application.

4. On 18 March 2025 the Tribunal wrote to the applicant and requested that he undertake a health examination. On 2 April 2025 the Tribunal accessed Departmental records which record the applicant’s health requirement as ‘finalised’ and ‘auto cleared’.

5. In light of the new evidence received, the Tribunal is satisfied that the applicant has now undertaken the required health examination and that PIC 4005(1)(aa) is met for the purposes of cl 500.217(4). The appropriate course is to set the decision aside and remit the visa application for reconsideration.

6. In reaching its decision the Tribunal did not consider a hearing to be necessary. The issues in the proceeding could be adequately determined without a hearing, and the Tribunal was able to find wholly in favour of the applicant on the basis of the material before it, pursuant to s 106(3) of the Administrative Review Tribunal Act 2024 (Cth).

   DECISION

7. The Tribunal sets aside the decision under review and remits the application for reconsideration, in accordance with the order that the applicant meets the following criteria for a Subclass 500 visa:

   ·Public interest criterion 4005(1)(aa) for the purposes of cl 500.217 of Schedule 2 to the Regulations.

   Representative for the Applicant:  Mrs Kiranjeet Kaur Dhaliwal (MARN: 2217936)