Madahar (Migration)

[2021] AATA 4345

Madahar (Migration) [2021] AATA 4345 (15 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Nirmaljit Kaur Madahar
Mr Sukhwant Singh Madahar
Mr Harshan Singh Madahar

CASE NUMBER:  1826603

HOME AFFAIRS REFERENCE(S):          BCC2016/3078839

COUNTRY OF REFERENCE:                   India

MEMBER:Susan Trotter

DATE:15 October 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for Regional Employer Nomination (Permanent) visas for reconsideration, with the direction that the first-named applicant and third-named applicant meet the following criteria for a Subclass 187 - Regional Sponsored Migration Scheme visa:

· PIC 4007 for the purposes of cl 187.224 of Schedule 2 to the Regulations.

The Tribunal does not have jurisdiction in relation to the second-named applicant.

Statement made on 15 October 2021 at 7:24am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 –health requirement – second-named applicant passed away – no jurisdiction to the second-named applicant – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 187.224; Schedule 4, PIC 4007

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 5 September 2018 to refuse to grant the applicants Regional Employer Nomination (Permanent) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visas on 16 September 2016. The delegate refused to grant the visa as the second-named applicant, the then husband of the first-named applicant (the primary visa applicant) did not satisfy Public Interest Criterion (PIC) for the purposes of cl 187.224 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

3. The applicants lodged an application for a review of the delegate’s decision with the Tribunal on 12 September 2018.

4. On 11 December 2019, the first-named applicant and second-named applicant were divorced, as evidenced by an order of the Federal Circuit Court of Australia of that date provided to the Tribunal. Further, sadly, the second-named applicant passed away on 1 June 2021 as evidenced by his death certificate provided to the Tribunal. Due to the death of the second-named applicant, there is no longer a valid review application before the Tribunal in relation to him and the Tribunal has no jurisdiction to make a decision in relation to the second-named applicant.

5. The Tribunal requested that the first-named applicant and third-named applicant (the son of the first-named applicant) undertake health examinations. On 6 October 2021, the Department advised the Tribunal that the first-named applicant and third-named applicant had each ‘completed medicals for permanent stay and met the health requirement’ on 22 September 2021.

6. Having had regard to the evidence and submissions before the Tribunal, pursuant to s 360(2)(a) of the Act, the Tribunal considered that it should decide the review in the applicants’ favour, and remit the matter for reconsideration, on the basis of the material before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. Clause 187.224 of Schedule 2 to the Regulations requires that the primary visa applicant and each member of the family unit who is an applicant for a Subclass 187 visa satisfies PIC 4007. Public Interest Criterion 4007, as it applies to this case, is extracted in the attachment to this decision.

9. On 20 April 2018, the then husband of the primary visa applicant was found not to satisfy PIC 4007(1)(c)(ii)(A).

10. As already canvassed, subsequent evidence is that the first-named applicant and the second-named applicant were divorced and that the second-named applicant has since passed away. As such, the second-named applicant is no longer a member of the family unit who is also an applicant for the visa for the purposes of assessing whether cl.187.224 is met.

11. Evidence before the Tribunal now demonstrates that the first-named applicant and the third-named applicant (now the only member of the family unit of the first-named applicant) have both been found to satisfy the health requirement on 22 September 2021. It follows that Tribunal finds that the applicant and each member of the family unit who is an applicant for a Subclass 187 visa satisfies PIC 4007.

12. Given the findings above, the appropriate course is to remit the applications for the first-named and third-named applicant to the Minister to consider the remaining criteria for the visa.

    DECISION

13. The Tribunal remits the application for Regional Employer Nomination (Permanent) visas for reconsideration, with the direction that the first-named applicant and third-named applicant meet the following criteria for a Subclass 187 - Regional Sponsored Migration Scheme visa:

    ·PIC 4007 for the purposes of cl 187.224 of Schedule 2 to the Regulations.

14. The Tribunal does not have jurisdiction in relation to the second-named applicant.

    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.