Nageen Fatima (Migration)

[2022] AATA 4771

Nageen Fatima (Migration) [2022] AATA 4771 (12 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Nageen Fatima

REPRESENTATIVE:  Mr Naveen Chaudhary (MARN: 2217847)

CASE NUMBER:  2211221

HOME AFFAIRS REFERENCE(S):          BCC2021/1691676

MEMBER:Sean Baker

DATE:12 December 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 visa:

·PIC 4005 for the purposes of cl.500.217 of Schedule 2 to the Regulations.

Statement made on 12 December 2022 at 2:28pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – health criteria – IMMI 15/144 – ‘auto cleared’ – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 500.217; Schedule 4; PIC 4005

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 applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant applied for the visa on 30 August 2021. The delegate refused to grant the visa on 15 July 2022.

2. The delegate made the decision on the basis that evidence of a medical assessment was not provided as required to satisfy a criterion for the grant of the visa under the Migration Regulations 1994 (Cth) (the Regulations).

3. On 20 October 2022 the Tribunal received information that the applicant’s health requirement had been finalised on Department systems. 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.

4. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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. If the applicant is in a specified class of persons, he or she must undertake the specified medical assessment and be assessed by a specified person unless a Medical Officer of the Commonwealth (MOC) decides otherwise: PIC4005(1)(aa). The applicant must be free from tuberculosis and 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: PIC4005(1)(a) and (b). Also, the applicant must be free from a disease or condition likely to require health care or community services or which meet the medical criteria for provision of a community service during a specified period where provision of the health care or community services (regardless of whether it will actually be used) would be likely to: 1) result in a significant cost to the Australian community; or 2) prejudice access of an Australian citizen or permanent resident to health care or community services: PIC4005(1)(c).

6. The relevant classes of persons and assessments for PIC4005(1)(aa) are specified in IMMI 15/144 as amended by LIN 22/065. The classes of persons are persons who are citizens of a country or who have spent three or more consecutive months during the last five years in a country or countries either listed or not listed in Schedule 1 to that Instrument. The applicant is a citizen of India. There is no evidence before the Tribunal that the applicant has spent more than three consecutive months in any country other than India and Australia. India is not listed in Schedule 1 to the Instrument.

7. Schedule 2 to IMMI 15/144 lists the medical assessments to be undertaken by citizens of countries that are not listed in Schedule 1 to that Instrument. For a temporary visa applicant aged 11 years or older, Schedule 2 requires that the applicant undergo a medical examination and chest x-ray. Medical assessments conducted within Australia must be conducted by Bupa Australia Health Pty Ltd, trading as Bupa Medical Visa Services, or an Approved Medical Practitioner.

8. Schedule 3 to IMMI 15/144 requires additional tests in certain circumstances. These are where the applicant intends to work, study or train as a doctor, dentist, nurse, paramedic, health care worker or childcare worker, or intends to work in the health care profession, an aged care or disability facility, or childcare centre, or is likely to enter a health care or hospital environment. There are also additional tests required where the applicant is pregnant and intends to have the baby in Australia and for visitors who are at least 75 years old. On 22 November 2022, the applicant confirmed to the Tribunal that they do not fall within any of the classes of person for whom additional medical assessments are required.

9. In determining whether a person meets PIC4005(1)(a), (b) or (c), r.2.25A requires the Tribunal to seek the opinion of a MOC unless, in the case of an application for a temporary visa, there is no information known to Immigration to the effect that the person may not meet those requirements. Where an opinion of a MOC is required, the Tribunal must take it to be correct: r.2.25A(3). For some temporary visas, certain specified health care and community services are excluded from the PIC4005(1)(c) considerations: PIC 4005(3). A Student (Temporary) (Class TU) visa is not listed in Legislative Instrument IMMI 22/007. As such the health care and community services listed in IMMI 22/014 are excluded from consideration. There is no evidence that there is information known to immigration that the applicant may not meet PIC4005(1)(a), (b) or (c).

10. Applicants are required to comply with any request by a MOC to undertake a medical assessment or sign an undertaking to present themselves to a health authority for a follow-up medical assessment: PIC4005(1)(ab) and (d). There is no evidence that a MOC has requested that the applicant comply with the requirements in PIC4005(1)(ab) or (d).

11. Based on the above information the Tribunal finds that in the applicant’s case a MOC opinion is not required.

12. The Department of Home Affairs’ records show that on 10 October 2022 the applicant’s health requirement was finalised for PIC4005 as ‘Auto Cleared’. The Department has confirmed to the Tribunal that where its records show that an applicant has been Auto Cleared it is an eMedical with no MOC involvement or assessment and no Form 884 is available. Therefore, the Tribunal accepts the Department evidence that the applicant meets all the health requirements in the legislation and has been cleared to the standard of an applicant for a temporary visa made where the specified class of person is a citizen of India and does not require additional medical assessment under Schedule 3 to IMMI 15/144.

13. The applicant meets PIC4005 of the Regulations.

14. 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

15. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 visa:

    ·PIC 4005 for the purposes of cl.500.217 of Schedule 2 to the Regulations.

    Sean Baker
    Member