Li (Migration)

[2017] AATA 2913

Li (Migration) [2017] AATA 2913 (8 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Xinying Li

CASE NUMBER:  1712516

DIBP REFERENCE(S):  BCC2017/935451

MEMBER:Tim Connellan

DATE:8 December 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

·PIC 4005(1)(aa) for the purposes of cl.500.217 of Schedule 2 to the Regulations.

Statement made on 08 December 2017 at 12:00pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Public Interest Criterion 4005 – Health criteria – Evidence of medical examination – Medical clearance

LEGISLATION

Migration Act 1958, ss 65, 360

Migration Regulations 1994, Schedule 2 cl 500.217, Schedule 4 Public Interest Criterion 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 31 May 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 9 March 2017. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.500.217 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. Specifically, the applicant failed to provide evidence of having completed a medical examination.

3. The applicant applied to the Tribunal for review of that decision.

4. The applicant advised the Tribunal she had a medical assessment and results would be submitted to the Department.

5. The Tribunal investigated ICSE records which showed “Health Clearance provided – no further action required 91349133).

6. An email from the Health Programmes Support Contact Management Team dated 13 July 2017 confirmed that the applicant had satisfactorily undertaken the health examination required on 26 June 2017.

7. Having considered the available evidence, the Tribunal found that pursuant to section 360(2)(a) of the Act, it should decide the review in the applicant’s favour. Therefore no hearing was required.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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 failed to provide the department with evidence she satisfied the medical requirements.

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

10. 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 relevant class of persons and assessments are specified in IMMI 15/144.

11. Being a national of Singapore, under Schedule 2, the applicant was required to provide satisfactory evidence of having completed a medical examination.

12. On 13 July 2017 the Tribunal received email from Contract Management confirming that the applicant had completed the required medical examinations.

13. The Tribunal is satisfied that this is evidence the applicant satisfies PIC 4005(1)(aa).

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 Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·PIC 4005(1)(aa) for the purposes of cl.500.217 of Schedule 2 to the Regulations.

    Tim Connellan
    Member