Nelson (Migration)

[2024] AATA 1079

Nelson (Migration) [2024] AATA 1079 (29 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jesse Keith Nelson

REPRESENTATIVE:  Mr James Hyeoksu Bae

CASE NUMBER:  2402381

HOME AFFAIRS REFERENCE(S):          BCC2020/2386180

MEMBER:Meena Sripathy

DATE:29 April 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

·PIC 4007 for the purposes of  cl 820.223 of Schedule 2 to the Regulations

Statement made on 29 April 2024 at 5:27pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – health requirements – evidence of health examination provided to tribunal – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulation 1994 (Cth), Schedule 2, cl 820.223, Schedule 4, criterion 4007

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 Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant applied for the visa on 29 September 2020. The delegate refused to grant the visa on 5 February 2024.

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 12 March 2024 the Tribunal invited the applicant to undertake a health examination. On 10 April 2024 the Tribunal received an email from the applicant’s representative proving information that the applicant had completed his health examination on 5 April 2024. On 24 April 2024 the Tribunal obtained information from Departmental records indicating the applicant met the health requirement. 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.

   DECISION

5. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

   ·PIC 4007 for the purposes of cl 820.223 of Schedule 2 to the Regulations.

   Meena Sripathy
   Member