Lim (Migration)

[2019] AATA 542

Lim (Migration) [2019] AATA 542 (21 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dogook Lim

CASE NUMBER:  1900299

DIBP REFERENCE(S):  BCC2018/4340318

MEMBER:Penelope Hunter

DATE:21 February 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 visa:

·cl.500.217(4) of Schedule 2 to the Regulations

Statement made on 21 February 2019 at 12:04pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – medical assessment – evidence received by the Department – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.217; 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 Immigration to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act). The applicant applied for the visa on 5 October 2018. The delegate refused to grant the visa on 18 December 2018.

2. The delegate made the decision on the basis that evidence of a medical assessment was not provided as required to satisfy a criterion for the grant of the visa under the Migration Regulations 1994 (the Regulations).

3. It is a requirement of cl 500.217(4) of Schedule 2 to the Regulations, that the applicant satisfies Public Interest Criterion 4005.

4. 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.

5. On 23 January 2019 the Tribunal received submissions from the applicant advising that the applicant had undertaken his medical assessment, and on 18 January 2019 his Health Case had been submitted to the Department. Electronic records from the Department record that on 18 January 2019 he was assessed as having cleared the health requirements.  Therefore the requirements in PIC 4005(1)(aa) are met. Consequently the applicant has also satisfied cl 500.217(4) of Schedule 2 to the Regulation.

6. In light of the new evidence received, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

   DECISION

7. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 visa:

   ·cl.500.217(4) of Schedule 2 to the Regulations

   Penelope Hunter
   Member