NAWANAGE (Migration)

[2017] AATA 100

NAWANAGE (Migration) [2017] AATA 100 (9 January 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Dr DONA SONALI LUCIANA NAWANAGE

CASE NUMBER:  1607882

DIBP REFERENCE(S):  BCC2016/1610189

MEMBER:Susan Trotter

DATE:9 January 2017

PLACE OF DECISION:  Brisbane

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

·Cl.600.212 of Schedule 2 to the Regulations.

·PIC 4005(1)(aa) and (ab) for the purposes of cl.600.213 of Schedule 2 to the Regulations.

Statement made on 09 January 2017 at 11:31am

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Adequate means of support –Specified medical assessment – Financial documents – Support from applicant’s fiancé

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 1994, Schedule 2, cl 600.212, cl 600.213, 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 Immigration on 13 May 2016 to refuse to grant the applicant, Dr Nawange, a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. Dr Nawange applied for the visa on 2 May 2016. The delegate refused to grant the visa on the basis that Dr Nawange did not satisfy cl.600.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) as required because she had not provided evidence to show that she had adequate means to support herself or access to sufficient means to support herself during her stay in Australia. Further, the delegate was not satisfied that Dr Nawange met the requirements of cl.600.213 of Schedule 2 to the Regulations as required, because the health criteria in Public Interest Criterion (‘PIC’) 4005 of Schedule 4 to the Regulations was not met.

3. Dr Nawange lodged an application for review of the delegate’s decision with the Tribunal on 31 May 2016.

4. Dr Nawange appeared before the Tribunal on 22 November 2016  to give evidence and present arguments. The Tribunal also received oral evidence from Dr Nawange’s fiancé, Mr Rajiv Michael.

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

   ISSUES

6. Cl.600.212 requires that the visa applicant has adequate means to support themselves or access to adequate means to support themselves during the period of their intended stay in Australia.

7. Cl.600.213 requires that the visa applicant satisfies certain public interest criteria, including public interest criterion 4005 (PIC 4005). PIC 4005(1)(aa) requires that 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. 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.

8. It follows that the issues for the Tribunal to determine are:

   (a)  Does Dr Nawange have adequate means to support herself or access to adequate means to support herself during the period of her intended stay in Australia?; and

   (b)  Has Dr Nawange undertaken a medical assessment (PIC 4005(1)(aa)) and has Dr Nawange complied with a request to undertake a medical assessment (PIC 4005(1)(ab))?

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Issue 1- Does Dr Nawange have adequate means to support herself or access to adequate means to support herself during the period of her intended stay in Australia?

9. Dr Nawange has provided various documentation, including documents confirming her bank account balance. The Tribunal is satisfied based on the evidence before it that she maintains a bank account balance of approximately $8,000 in Australia in her name, and further resides in accommodation with and is also supported by her fiancé, Mr Michael.

10. The Tribunal is therefore satisfied that Dr Nawange has adequate means to support herself or access to adequate means to support herself during the period of her intended stay in Australia, specified as being six months in her application, and meets the requirements of cl.600.212.

    Issue 2 - Has Dr Nawange undertaken a medical assessment (PIC 4005(1)(aa)) and has Dr Nawange complied with a request to undertake a medical assessment (PIC 4005(1)(ab))?

11. Following lodgement of her visa application, Dr Nawange was requested by the Department, by email on 5 May 2016, to complete a medical examination and chest x-ray within seven days. When she had not completed a medical examination within that time, the delegate made a decision refusing the visa, including because that she did not meet the criteria.

12. Dr Nawange told the Tribunal that she did not receive any emails requesting any further documentation or information. Whatever the position as to whether Dr Nawange received requests for further information or the 5 May 2016 email, Dr Nawange has now provided information to the Tribunal that she completed the requested medical examination on 21 December 2016. Further information from the Department confirms that Dr Nawange “meets” and has “Finalised Health Requirement” on 21 December 2016.

13. The Tribunal therefore finds that Dr Nawange meets PIC 4005(1)(aa) and (ab) and is therefore satisfied that the requirements of cl.600.213 are met.

    Conclusion

14. The Tribunal also discussed with Dr Nawange that there are other criteria that need to be met for grant of a (further) visitor visa which the Department of Immigration has not yet considered, and that the Tribunal would only be considering the criteria identified, that is the criteria relating to adequate funds and the required medical examination/ chest x-ray.

15. 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

16. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 (Visitor) visa:

    ·Cl.600.212 of Schedule 2 to the Regulations.

    ·PIC 4005(1)(aa) and (ab) for the purposes of cl.600.213 of Schedule 2 to the Regulations.

    Susan Trotter

    Member