Le (Migration)

[2023] AATA 511

Le (Migration) [2023] AATA 511 (5 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Thi Nga Le

REPRESENTATIVE:  Mrs Tung Duy Nguyen (MARN: 1575839)

CASE NUMBER:  2212123

HOME AFFAIRS REFERENCE(S):          BCC2022/58431

MEMBER:Nathan Goetz

DATE:5 January 2023

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)(aa) for the purposes of cl 600.213(1) of Schedule 2 to the Regulations.

Statement made on 05 January 2023 at 12:54pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – PIC 4005(1)(aa) – applicant received a clear medical assessment and her health requirements were finalised – applicant meets the health requirement –applicant satisfies public interest criterion 4005 – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 360

Migration Regulations 1994, Schedule 2, cl 600.213,Schedule 4, PIC 4005(1)(aa)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant was represented in the review by registered migration agent 1575839.

   BACKGROUND

3. The applicant applied for the visa on 25 February 2022.

4. On 11 August 2022 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 (Cth) (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4005 of Schedule 4 to the Regulations was not met.

5. On 19 August 2022 the applicant applied to the Tribunal for review of the decision.

6. After considering the evidence, the Tribunal determined that it should make a decision favourable to the applicant. Accordingly, the applicant was not invited to appear at a Tribunal hearing: s 360(2)(a) of the Act.

   CONSIDERATION AND FINDINGS

7. 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.

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

9. According to the visa application form, the applicant is a female citizen of Vietnam who was born in 1959 and presently located in Australia.

10. The delegate decision record details that the applicant is in a class of persons specified by the Minister in an instrument in writing who must undertake medical assessments in order to meet PIC 4005(1). The Tribunal accepts that this is the case.

11. The delegate decision record details that the applicant wrote to the applicant on 25 February 2022 to advise the applicant that he was required to undertake medical examinations for the purposes of meeting the requirements for the grant of the visa. The applicant was directed to provide evidence that she had undertaken the required examinations within 28 days.

12. As the applicant did not provide evidence that she had undertaken the required examinations within 28 days, the delegate refused to grant the visa on the basis that the applicant did not satisfy PIC 4005(1)(aa) for the purpose of cl 600.213(1) of Schedule 2 to the Regulations.

13. When the applicant applied to the Tribunal on 19 August 2022 for review of the decision, she attached a booking confirmation SMS for a ‘visa medical assessment’ scheduled for 21 August 2022 with BUPA. A search of the Department records demonstrate that the applicant was ‘Auto Cleared’ for ‘Finalised Health Requirement’ which the Tribunal accepts as demonstrative of the applicant having undertaken the required medical assessments.

14. For these reasons the requirements in PIC 4005(1)(aa) are met.

15. 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

16. 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)(aa) for the purposes of cl 600.213(1) of Schedule 2 to the Regulations.

    Nathan Goetz
    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.