Konondang (Migration)

[2019] AATA 4623

Konondang (Migration) [2019] AATA 4623 (23 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Suthiporn Konondang

CASE NUMBER:  1918908

DIBP REFERENCE(S):  CLF2018/181113

COUNTRY OF REFERENCE:                  Thailand

MEMBER:Kira Raif

DATE:23 September 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 (Child) visa:

·PIC 4007(1)(c) for the purposes of cl.802.223 of Schedule 2 to the Regulations.

Statement made on 23 September 2019 at 10:29am

CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – free from disease or condition that could impact community – free from disease or condition likely to require health care or community services – medical examination undertaken – applicant auto-cleared – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359
Migration Regulations 1994 (Cth), Schedule 2, cl 802.223, 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 Immigration on 27 June 2019 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 1 August 2018. The delegate refused to grant the visa as the applicant did not satisfy cl.802.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4007 of Schedule 4 to the Regulations were not met.

3. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. The issue in this review is whether the visa applicant meets Public Interest Criterion (PIC) 4007 as required by the criteria for the grant of the visa. Public Interest Criterion 4007 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.

5. Clauses 4007(1)(a) and (b) require the applicant to be free from tuberculosis and 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.

6. Clause 4007(1)(c) requires the applicant be free from a disease or condition which would be likely to require health care or community services or which would meet the medical criteria for provision of a community service during the specified period; and  provision of the health care or community services (regardless of whether it will actually be used in connection with the applicant) would be likely to: result in a significant cost to the Australian community in the areas of health care and community services; or prejudice access of an Australian citizen or permanent resident to health care or community services.

7. For specified temporary visas, certain specified health care and community services are excluded from this consideration: PIC 4007(1B). The requirement may also be waived in certain circumstances.

8. As the applicant in this case has applied for a permanent visa, the exemption provision in PIC 4007(1B) does not apply.

9. In determining whether a person meets PIC 4007(1)(a), (b) or (c), r.2.25A requires the Tribunal to seek the opinion of a Medical Officer of the Commonwealth (MOC) unless: the application is for a temporary visa and there is no information known to Immigration to the effect that the person may not meet those requirements; or the application is for a permanent visa and made from a specified country and there is no information known to Immigration to the effect that the person may not meet those requirements. Where an opinion of a MOC is required, the Tribunal must take it be correct: r.2.25A(3)

   Is the applicant free from the relevant diseases or conditions (PIC 4007(1)(a), (b), (c))?

10. The primary decision record indicates that in May 2019 the delegate wrote to the applicant inviting him to undertake medical examinations but this was not done.

11. The applicant provided to the Tribunal evidence of having undertaken medical examinations. Electronic records before the Tribunal indicate that in July 2019 the applicant was ‘auto-cleared’. On the basis of the evidence before the Tribunal, the Tribunal finds that the applicant satisfies PIC 4007(1)(c).

    Conclusion

12. 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

13. The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 (Child) visa:

    ·PIC 4007(1)(c) for the purposes of cl.802.223 of Schedule 2 to the Regulations.

    Kira Raif

    
    

    Senior Member