Lotika (Migration)

[2020] AATA 3002

Lotika (Migration) [2020] AATA 3002 (16 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Victoire Kalume Lotika

CASE NUMBER:  2000764

HOME AFFAIRS REFERENCE(S):          BCC2018/6128408

MEMBER:Jennifer Cripps Watts

DATE:16 May 2020

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:

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

Statement made on 16 May 2020 at 4:20pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – health requirement – undertaking a medical assessment – evidence of medical clearance after review – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 500.217

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 2 January 2020 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 12 January 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.217 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant did not meet the health requirement.

4. The applicant was assisted in relation to the review by his registered migration agent, Tony Truong.

5. The Tribunal was able to make a favourable decision on the evidence before it, relating to the determinative issue on the review, without inviting the applicant to a hearing to give evidence and present arguments:  s.360(2)(a) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant meets the health requirement as required by cl.500.217(4).

8. Relevantly, cl.500.217(4) requires that an applicant must satisfy Public Interest Criteria (PIC) 4005. This means, relevantly, that the applicant in this case must undertake a medical assessment.

9. During the assessment of the visa application, on 21 October 2019 the Department wrote to the applicant requesting he provide evidence of having undertaken a health examination.  The evidence was not provided within the 28 day period specified and, on 22 November 2019, the Department sent the applicant a second request.  The requested evidence was not provided by the applicant. The visa was refused 2 January 2020 and the applicant applied for review of the decision.

10. On 6 February 2020, the Tribunal wrote to the applicant requesting he provide evidence of having undertaken a health examination in support of the visa application, no later than 20 February 2020.  No response was received.  However, Departmental records indicate that, on 21 February 2020, the applicant’s health examination was finalised and cleared.

11. The Tribunal is satisfied the applicant meets cl.500.217(4).

12. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    DECISION

13. 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:

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

    Jennifer Cripps Watts
    Member