Limpiado (Migration)

[2021] AATA 1934

Limpiado (Migration) [2021] AATA 1934 (24 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Master Nino Vincent Dimson Limpiado

CASE NUMBER:  2100429

HOME AFFAIRS REFERENCE(S):          CLF2018/71362

COUNTRY OF REFERENCE:                   Philippines

MEMBER:Susan Trotter

DATE:24 April 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 (Child) visa:

·PIC 4007(1)(aa) for the purposes of cl 802.223 of Schedule 2 to the Regulations.

Statement made on 24 April 2021 at 2:24pm

CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – health criteria – health clearance expired prior to delegate’s decision – further medical assessment undertaken – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 802.223; Schedule 4, PIC 4007

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 13 January 2021 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 18 June 2018.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.802.223(1)(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the health criteria in Public Interest Criterion (PIC) 4007 of Schedule 4 to the regulations was not met.

4. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 14 January 2021. A copy of the delegate’s record of decision was provided to the Tribunal by the applicant.

5. Pursuant to s.360(2)(a) of the Act, for the following reasons, the Tribunal considered that it should decide the review in the applicant’s favour, and remit the matter for reconsideration, on the basis of the material before it. It was therefore unnecessary to invite the applicant to appear before the Tribunal to give evidence in relation to the decision under review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this review is whether the applicant meets PIC 4007 as required by the criteria for the grant of the visa. PIC 4007, 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. This last requirement may be waived in certain circumstances.

8. Following lodgement of his visa application, the applicant was requested to complete a medical assessment. The applicant undertook the medical assessment on 5 March 2019 and was found to have satisfied PIC 4007 on 14 March 2019 and subsequently held a health clearance for 12 months. Therefore, the applicant’s health clearance was valid until 14 March 2020.

9. Due to delays caused by assessment, the applicant’s health clearance expired prior to the delegate’s final decision. On 3 November 2020 a new medical examination was requested. The applicant’s sponsor, Ivah Belenda Dimson Speranza informed the Department that the sponsor and the applicant were of the belief that the health clearance had not expired, and requested the Department make a decision on the applicant’s visa application based on the information available.

   Has the applicant undertaken a medical assessment (PIC 4007(1)(aa))?

10. Clause 4007(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 falls within the relevant class of persons.

11. As set out in the decision record of the delegate, the applicant was requested to undertake a second medical assessment with the Department’s medical service provider on 3 November 2020. The applicant did not fulfil the Department’s request to undertake a second medical assessment. Accordingly, on 13 January 2021, a delegate of the Minister refused the application because the delegate was not satisfied that the applicant met PIC 4007, and therefore subclass 820.223(1)(a) of the Regulations.

12. Information requested from the Department ICSE database, viewed by the Tribunal, shows that a further medical assessment was undertaken by the applicant on 22 March 2021 with a recommendation of ‘cleared’. The Tribunal is therefore satisfied that PIC 4007(1)(aa) is now met.

13. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for the visa.

    DECISION

14. The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 (Child) visa:

    ·PIC 4007(1)(aa) for the purposes of cl 802.223 of Schedule 2 to the Regulations.

    Susan Trotter

    
    

    Member

    ATTACHMENT

    Migration Regulations 1994

    Schedule 4

    4007(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)      subject to subclause (2) — 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 (1A); 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.

    (1A)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.

    (1B)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 (1A)(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.

    (2)The Minister may waive the requirements of paragraph (1)(c) if.

    (a)     the applicant satisfies all other criteria for the grant of the visa applied for; and

    (b)     the Minister is satisfied that the granting of the visa would be unlikely to result in:

    (i)undue cost to the Australian community; or

    (ii)undue prejudice to the access to health care or community services of an Australian citizen or permanent resident.