May (Migration)

[2020] AATA 5416

May (Migration) [2020] AATA 5416 (22 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs CHOEUN MAY

VISA APPLICANTS:  Mr KOSAL VAN
Miss MEY LEANG VAN

CASE NUMBER:  1918895

DIBP REFERENCE(S):  BCC2018/681509

COUNTRY OF REFERENCE:                   Cambodia

MEMBER:Justine Clarke

DATE:22 October 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first-named visa applicant meets the following criteria for a Subclass 309 (Spouse (Provisional)) visa:

·PIC 4007(1)(d) for the purposes of cl.309.225 of Schedule 2 to the Regulations.

Statement made on 22 October 2020 at 11:41am

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – health criteria – Medical Officer of the Commonwealth examinations – signed undertaking to present to State health authority for follow-up medical assessment – decision under review remitted

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 309.225; Schedule 4, Public Interest Criterion 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 Immigration on 25 June 2019 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).

2. On 9 February 2018, the visa applicants applied for the visas. The review applicant sponsored the application for the visas.

3. The review applicant provided the Tribunal with a copy of the delegate’s decision. The delegate refused to grant the visas on the basis that the first-named visa applicant did not satisfy cl.309.225 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. The primary decision contains an extract of cl.309.225 and PIC 4007 is extracted in the attachment to the current decision. It appears to the Tribunal that the delegate refused to grant the first-named visa applicant the visa for failing to satisfy PIC 4007(1)(d). This is because the delegate’s decision states that, after completing the medical examinations, the Medical Officer of the Commonwealth (MOC) required the visa applicant to complete and sign an undertaking to present to a health authority in the State or Territory of intended residence in Australia for a follow-up medical assessment. On 26 December 2018, the Department was made aware of this requirement and, subsequently, the Department requested the visa applicant to complete and provide the relevant form. However, the delegate stated that as at 25 June 2019, which was the date of the delegate’s refusal decision, the visa applicant had not provided a completed and signed undertaking as requested. The delegate refused to grant the visa to the second-named visa applicant stating, ‘I have considered whether the secondary applicant(s) meet(s) the requirements for this visa subclass as a main applicant and find that they do not’.

4. On 12 July 2019, the review applicant applied to the Tribunal for review of the primary decision.

5. The Tribunal notes the information and evidence filed with the Tribunal in this review, including the first-named visa applicant’s letter to the delegate of 28 June 2019 claiming that, prior to the delegate’s refusal decision, he had submitted the completed undertaking. The Tribunal notes that a copy was provided of the Form 815 in the Khmer language which was completed and dated 9 January 2019 as well as screenshots of this and other relevant documents having been emailed prior to the delegate’s refusal decision.

6. Based on this information and evidence, the Tribunal is satisfied that, at the time of this decision, the first-named visa applicant meets PIC 4007(1)(d) for the purpose of cl.309.225. As the Tribunal has found that the first-named visa applicant satisfies PIC 4007(1)(d) for the purpose of cl.309.225, the ability of the second-named visa applicant to satisfy the secondary criteria should also be reconsidered.

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

   DECISION

8. The Tribunal remits the application for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first-named visa applicant meets the following criteria for a Subclass 309 (Spouse (Provisional)) visa:

   ·PIC 4007(1)(d) for the purposes of cl.309.225 of Schedule 2 to the Regulations.

   Justine Clarke

   
   

   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.