Li (Migration)

[2019] AATA 6087

Li (Migration) [2019] AATA 6087 (21 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Xiulan Li

CASE NUMBER:  1922538

DIBP REFERENCE(S):  BCC2019/3282594

MEMBER:Kira Raif

DATE:21 October 2019

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

Statement made on 21 October 2019 at 11:04am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 – free from disease or condition that may be danger to Australian community – free from disease or condition likely to require health care or community services in Australia – medical assessment cleared – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.25A(3), Schedule 2, cl 600.213, 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 29 July 2019 to refuse to grant the applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 30 June 2019. 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. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it.

   Relevant law

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, 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.

5. Public interest criterion 4005(1)(a) and (b) require the applicant to be free from tuberculosis and 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.

6. Public interest criterion 4005(1)(c) requires the applicant be free from a disease or condition which would be likely to require health care or community services or which would meet the medical criteria for provision of a community service during the specified period; and  provision of the health care or community services (regardless of whether it will actually be used in connection with the applicant) would be likely to: result in a significant cost to the Australian community in the areas of health care and community services; or prejudice access of an Australian citizen or permanent resident to health care or community services. For specified temporary visas, certain specified health care and community service are excluded from this consideration: PIC 4005(3).

   Is the applicant free from the relevant diseases or conditions (PIC 4005(1)(a), (b), (c))?

7. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that in June 2019 the delegate wrote to the visa applicant requesting her to undertake health checks. There is no evidence to indicate that this was done and the delegate found that the applicant did not meet PIC 4005.

8. In September 2019 the Tribunal wrote to the review applicant inviting the visa applicant to undertake health examinations. Electronic records before the Tribunal indicates that these were completed and in September 2019 a notice of ‘auto cleared’ was recorded in relation to the visa applicant.

9. Having regard to that evidence, the Tribunal is satisfied that the visa applicant meets PIC 4005(1)(c).

   Conclusion

10. 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

11. 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)(c) for the purposes of cl.600.213 of Schedule 2 to the Regulations.

    Kira Raif
    Senior Member