Mohamed-Ali (Migration)

[2023] AATA 592

Mohamed-Ali (Migration) [2023] AATA 592 (9 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Nemat Dawod Musa Mohamed-Ali

VISA APPLICANT:  Ms Gamiea Mahmoud Hamd Mohamed

REPRESENTATIVE:  Mr Farris Faris

CASE NUMBER:  2216228

HOME AFFAIRS REFERENCE(S):          BCC2021/2410844

COUNTRY OF REFERENCE:                   Sudan

MEMBER:Member Nathan Goetz

DATE:9 February 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 visa:

·Public interest criteria (PIC) 4005 as per cl 600.213 of Schedule 2 to the Regulations

Statement made on 09 February 2023 at 10:16am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – applicant meets the health requirement –applicant satisfies public interest criterion 4005 – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 360

Migration Regulations 1994, Schedule 2, cl 600.213

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 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant identifies as a 63-year-old female citizen of Sudan.

3. The review applicant was represented in the review by registered migration agent 1678135.

4. On 14 December 2021 the applicant applied for the visa. On 17 October 2022 the delegate refused to grant the visa on the basis that the applicant did not satisfy public interest criteria (PIC) 4005 for the purpose of cl 600.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

5. On 5 November 2022 the primary review applicant applied to the Tribunal for review of the decision.

   CRITERIA FOR THE VISA

   600.213  

   (1)  The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4011, 4013, 4014, 4020 and 4021.

   (2)  If the applicant has not turned 18, the applicant also satisfies public interest criteria 4012, 4017 and 4018.

   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.

   CONSIDERATION AND FINDINGS

6. On 14 December 2021 the Department sent a letter to the visa applicant requesting the required health examinations for the visa applicant to meet the health requirement Visitor (Class FA) visa.

7. On 09 September 2022 the Department sent another letter to the applicant requesting them to undertake additional health examinations.

8. At the time the delegate made the decision, the visa applicant had not responded to this request and the delegate made the decision on the basis that evidence of completing the requested additional health examinations was not provided as required to satisfy public interest criteria (PIC) 4005 for the purpose of cl 600.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

9. On 23 December 2022 the Tribunal wrote to the representative of the review applicant inviting them to provide the required additional health examinations for the visa applicant.

10. On 11 January 2023 the review applicant provided the Tribunal with medical examination results for the primary visa applicant.

11. On 11 January 2023 the Tribunal confirmed that as of 23 November 2022 the Department had assessed the visa applicant as meeting the health requirements. In light of the new evidence received, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

12. As the Tribunal was satisfied that it should make a decision favourable to the applicant based on the material it had, the Tribunal was not obligated to invite the applicant to appear at a Tribunal hearing: s 360(2)(a) of the Act.

    DECISION

13. The Tribunal remits the application for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 visa:

    ·Public interest criteria (PIC) 4005 as per cl 600.213 of Schedule 2 to the Regulations

    Nathan Goetz
    Member