MD SHAJAN (Migration)

[2017] AATA 2643

MD SHAJAN (Migration) [2017] AATA 2643 (22 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr MD SHAJAN

CASE NUMBER:  1717879

DIBP REFERENCE(S):  BCC2017/1905409

MEMBER:Jennifer Cripps Watts

DATE:22 September 2017

PLACE OF DECISION:  Sydney

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:

·PIC 4005(1)(ab) for the purposes of cl.500.217 of Schedule 2 to the Regulations.

Statement made on 22 September 2017 at 10:13am

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 2 August 2017 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 29 May 2017. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.500.217 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4005 of Schedule 4 to the Regulations was not met.

3. For the following reasons, the Tribunal has concluded that the matter should be remitted for consideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The issue in this review is whether the visa applicant meets Public Interest Criterion (PIC) 4005 as required by the criteria for the grant of the visa. Public Interest Criterion 4005, 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. The applicant in this case was required to, but did not, submit the results of a medical and x-ray examination.

   Has the applicant complied with a request to undertake a medical assessment (PIC 4005(1)(ab)?

5. Public interest criterion 4005(1)(ab) requires that the applicant comply with any request by a Medical Officer of the Commonwealth (MOC) to undertake a medical assessment. The applicant did not comply with the request to undertake a medical assessment at the time of application. 

6. The applicant applied for the student visa that is the subject of this review on 29 May 2017.  The Department refused his visa on 2 August 2017 and an application for review was lodged with this Tribunal on 14 August 2017.  On 18 August 2017, the Tribunal sent the applicant an email requesting he provide evidence regarding meeting the health requirements.  The applicant did not respond to the Tribunal email of 18 August 2017 and, on 15 September 2017, he was sent an invitation to attend a hearing on 10 October 2017.

7. The applicant has now provided the Tribunal with evidence that he has paid for and undergone the required medical assessment.  The document he has provided to the Tribunal is from HealthPlus, an invoice for services rendered, and indicates that on 4 August 2017, two days after his visa was refused, the applicant had 501 and 502 medical examinations in relation to his TU-500 visa.  The invoice issued in the amount of $331.49 has been paid.

8. Therefore the applicant satisfies  PIC 4005(1)(ab).

9. Given the findings above, the appropriate course is for the Tribunal to remit the matter to the Minister for reconsideration of the remaining criteria for the visa.

   DECISION

10. 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:

    ·PIC 4005(1)(ab) for the purposes of cl.500.217 of Schedule 2 to the Regulations.

    Jennifer Cripps Watts
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    Schedule 4

    4005(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)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 (2); 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.

    (2)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.

    (3)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 (2) (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.