Ndungi (Migration)

[2024] AATA 3655

Ndungi (Migration) [2024] AATA 3655 (29 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Wayne Mungai Ndungi

REPRESENTATIVE:  Mr Raju KC (MARN: 1799073)

CASE NUMBER:  2423927

HOME AFFAIRS REFERENCE:               BCC2024/2701324

MEMBER:Jessica Edis

DATE:29 September 2024

PLACE OF DECISION:  Perth

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) for the purposes of cl 500.217 of Schedule 2 to the Regulations.

Statement made on 29 September 2024 at 3:30pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – health criteria – medical assessment provided upon review – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 500.217; Schedule 4, Public Interest Criterion 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 on 28 June 2024 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 7 May 2024.

3. 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 (Cth) (the Regulations) because the health criteria prescribed by Public Interest Criterion (‘PIC’) 4005(1) of Schedule 4 to the Regulations was not met.

4. The delegate found that the applicant had not provided evidence that he had undertaken required medical examinations through an approved medical services provider within the requested timeframe.

5. The applicant lodged a review of the delegate’s refusal decision with the Tribunal on 19 July 2024.

   ASSESSMENT

6. For the reasons that follow the Tribunal has found in favour of the applicant based on the material before it, and therefore a hearing was not necessary pursuant to s 360(2)(a) of the Act.

7. According to information on the Department’s Integrated Client Services Environment records, to which the Tribunal has had access, the applicant had ‘finalised health requirement’ on 15 July 2024. Based on this evidence, the Tribunal is satisfied that the applicant now meets PIC 4005(1).

8. The appropriate course is therefore for the Tribunal to remit the matter to the Minister for reconsideration of the remaining criteria for the visa.

   DECISION

9. 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) for the purposes of cl 500.217 of Schedule 2 to the Regulations.

   Jessica Edis
   Member