Le (Migration)

[2024] AATA 649

Le (Migration) [2024] AATA 649 (8 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss Jessica Thanh Le

VISA APPLICANT:  Ms Thuy Nam Le

REPRESENTATIVE:  Mr Andy Vuong Duc Pham

CASE NUMBER:  2210201

HOME AFFAIRS REFERENCE(S):          2015/028260

MEMBER:David Crawshay

DATE:8 March 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Contributory Parent (Temporary) (Class UT) visa for reconsideration, with the direction that the visa applicant meets the following criterion for a Subclass 173 (Contributory Parent (Temporary)) visa:

·Public Interest Criterion 4005 for the purposes of cl.173.224 of Schedule 2 to the Regulations.

Statement made on 08 March 2024 at 12:00pm

CATCHWORDS
MIGRATION – Contributory Parent (Temporary) (Class UT) visa – Subclass 173 (Contributory Parent (Temporary)) – health criteria – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 173.224; 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 Home Affairs on 7 July 2022 to refuse to grant the visa applicant a Contributory Parent (Temporary) (Class UT) visa under s.65 of the Migration Act 1958 (Cth) (the Act). The applicant applied for the visa on 1 July 2015. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.173.224 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 were not met.

2. The Tribunal has since received a report dated 8 February 2024, from a Review Medical Officer of the Commonwealth stating that the visa applicant meets the health requirement.

3. On the basis of this information, the Tribunal accepts that the visa applicant meets PIC 4005.

   DECISION

4. The Tribunal remits the application for a Contributory Parent (Temporary) (Class UT) visa for reconsideration, with the direction that the visa applicant meets the following criterion for a Subclass 173 (Contributory Parent (Temporary)) visa:

   ·Public Interest Criterion 4005 for the purposes of cl.173.224 of Schedule 2 to the Regulations.

   David Crawshay
   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.