Kumar (Migration)

[2018] AATA 867

Kumar (Migration) [2018] AATA 867 (13 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Raj Kumar

CASE NUMBER:  1725695

DIBP REFERENCE(S):  BCC2017/3127384

MEMBER:Christine Cody

DATE:13 February 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 (Visitor) visa:

·PIC 4005(1) for the purposes of cl. 600.213 of Schedule 2 to the Regulations.

Statement made on 13 February 2018 at 11:53am

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Medical assessment undertaken – Health requirements cleared

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cl 600.213, Schedule 4 PIC 4005

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 3 October 2017 to refuse to grant the applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act). The applicant was represented in relation to the review by his registered migration agent, Nahresh Mehrok.

2. The applicant applied for the visa on 29 August 2017. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl. 600.213 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4005 of Schedule 4 to the Regulations was not met.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. 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. The applicant in this case had been requested by the Department to undertake a chest x-ray and/or medical examination through an approved medical services provider. One month later this had not occurred, and the delegate thus did not accept that the applicant satisfied PIC4005, a mandatory requirement of clause 600.213.

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

5. 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.

6. At the time the delegate made the decision to refuse, the applicant had not undertaken the required assessment. However, the agent informed the Tribunal that the applicant was undertaking the required medical examination on 31 January 2018, and information in the Department ISCE records confirmed this.  The Departmental ISCE records indicate that on 31 January 2018 the health requirement was cleared. 

7. On the basis of the available evidence, the Tribunal finds that the applicant meets the health requirements set out in PIC 4005. The Tribunal finds therefore that the applicant satisfies PIC 4005 for the purposes of cl. 600.213 of Schedule 2.

8. 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

9. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 (Visitor) visa:

   · PIC 4005(1) for the purposes of cl. 600.213 of Schedule 2 to the Regulations.

   Christine Cody
   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.