Li (Migration)

[2023] AATA 3662

Li (Migration) [2023] AATA 3662 (25 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Jing Yi Li

VISA APPLICANT:  Mrs Huaqin Xiong

REPRESENTATIVE:  Ms Xiangyu Wu (MARN: 1909275)

CASE NUMBER:  2311054

HOME AFFAIRS REFERENCE(S):          2010/073417

MEMBER:Justin Meyer

DATE:25 October 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Parent (Migrant) (Class AX) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 103 (Parent) visa:

·PIC 4005(1)(aa) for the purposes of cl 103.321 of Schedule 2 to the Regulations.

Statement made on 25 October 2023 at 4:48pm

CATCHWORDS
MIGRATION – Parent (Migrant) (Class AX) visa – Subclass 103 (Parent) – health criteria – medical assessment – advice from department that requirement met – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulation 1994 (Cth), Schedule 2, cl 103.321, Schedule 4, criterion 4005(1)(aa)

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 10 May 2023 to refuse to grant the visa applicant a Parent (Migrant) (Class AX) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 3 September 2010. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 103.321 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 review applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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 not undertaken the assessment.

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

6. 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. The applicant is in a class of persons specified by the Minister in an instrument in writing

7. The department wrote to the Tribunal on 11 October 2023 to state:

   I can advise that Ms Xiong met the health requirement on 28 July 2023. Screenshot from the HAP below.

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

9. 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

10. The Tribunal remits the application for a Parent (Migrant) (Class AX) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 103 (Parent) visa:

    ·PIC 4005(1)(aa) for the purposes of cl 103.321 of Schedule 2 to the Regulations

    Justin Meyer
    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)Sub-subparagraph (1) (c) (ii) (A) does not apply if:

    (a)the applicant would not be eligible for the provision of the health care or community services; and

    (b)the ineligibility would be due to the temporary visa for which the applicant is applying being of a particular subclass; and

    (c)the subclass is not specified by the Minister in an instrument in writing made under subparagraph (2) (b) (ii).