Kaur (Migration)

[2023] AATA 3560

Kaur (Migration) [2023] AATA 3560 (26 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Gurmeet Kaur
Mr Sukhjinder Singh
Miss Ekamnoor Kaur
Mr Eshwaan Singh

CASE NUMBER:  2208318

HOME AFFAIRS REFERENCE(S):          BCC2020/1545578

MEMBER:Wendy Banfield

DATE:26 October 2023

PLACE OF DECISION:  Canberra

DECISION:The Tribunal affirms the decision not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 26 October 2023 at 2:09pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – health criteria – no response to request to undertake health examination or appearance at hearing – members of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.217(4), Schedule 4, criterion 4005(1)(aa)

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 23 May 2022 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 13 May 2020. 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 applicants were invited to appear before the Tribunal on 25 October 2023 at 3.00pm. SMS reminders had been sent to the primary visa applicant on 18 and 24 October 2023 but the applicants did not appear. The Tribunal attempted to contact the applicants by phone, and on an alternative phone number located on the original application form submitted to the Department but there was no answer.

4. On 17 June 2022 and 21 March 2023 the Tribunal requested the applicants undertake a health examination as the decision to refuse the visa by the Department was on the basis of the lack of any health examination. The applicants did not respond to the requests.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

7. There is therefore no evidence before the Tribunal of the applicants ever having undertaken the required health examination. Therefore, as at the date of this decision, the Tribunal is not satisfied that the applicants satisfy Public Interest Criterion 4005(1)(aa) which requires that if the applicants are 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.

8. The applicants are citizens of India, and the Tribunal is satisfied that they are in the class of persons specified in the relevant instrument.[1] There is also no evidence before the Tribunal that a MOC has decided otherwise that the applicants are not required to undertake the relevant examination. As the applicants have not undertaken the relevant medical examination the Tribunal finds that the requirements in PIC 4005(1)(aa) of Schedule 4 to the Regulations are not met.

[1] Required Medical Assessment (Clauses 4005,4006A and 4007)(IMMI15/144) as amended by Migration (Required medical assessments) Amendment Instrument (LIN 22/065) 2022.

9. For these reasons the requirements in PIC 4005(1)(aa) are not met.

10. As the applicants therefore do not satisfy PIC 4005, the requirements for the grant of the visas to the applicants pursuant to cl 500.217(4) of Schedule 2 to the Regulations is not met and the Tribunal must affirm the decision under review.

11. All members of the family unit must satisfy the health criteria to be granted visas. As the primary visa applicant had not met cl.500.217, the secondary applicant’s fail to meet the criteria to be granted a visa.

    DECISION

12. The Tribunal affirms the decision not to grant the applicants Student (Temporary) (Class TU) visas.

    Wendy Banfield
    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.