Nguyen (Migration)

[2022] AATA 432

Nguyen (Migration) [2022] AATA 432 (1 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Go Nguyen

VISA APPLICANT:  Mrs Duyen Thi Le

CASE NUMBER:  1906702

HOME AFFAIRS REFERENCE(S):          BCC2017/1732171

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:David Crawshay

DATE:1 March 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Spouse (Provisional)) visa:

·PIC 4007(1)(aa), (ab), (a), (b) and (c) for the purposes of cl.309.225 of Schedule 2 to the Regulations.

Statement made on 01 March 2022 at 5:48pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse) (Provisional) – health criteria – further opinion of medical officer of commonwealth provided to tribunal – no evidence of signed undertaking – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 309.225, Schedule 4, 4007(1)(c), (d)

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 11 January 2019 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 15 May 2017. The delegate refused to grant the visa as the visa applicant did not satisfy cl.309.225 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4007 of Schedule 4 to the Regulations were not met. Specifically, the visa applicant was found not to have satisfied PIC 4007(1)(c) in relation to being free of a disease or condition that would result in a significant cost to the Australian community in the areas of health care and community services. This finding was based on an opinion of a Medical Officer of the Commonwealth (MOC) dated 1 March 2018.

3. On 30 November 2021, the Tribunal wrote to the review applicant to provide him the opportunity of organising a further MOC opinion in respect of the visa applicant. On 1 March 2022, the Tribunal received an updated MOC opinion dated 28 February 2022 which stated that the visa applicant “meets the health requirement for a permanent stay in Australia, subject to the [visa] applicant providing a signed undertaking in accordance with PIC4007(1)(d)” and that its opinion was based on available medical and radiological reports.

4. On the basis of this evidence, the Tribunal is satisfied that the visa applicant satisfies PIC 4007(1)(aa), (ab), (a), (b) and (c). There is not yet evidence that the visa applicant has signed an undertaking pursuant to PIC 4007(1)(d).

5. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for the visa.

   DECISION

6. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Spouse (Provisional)) visa:

   ·PIC 4007(1)(aa), (ab), (a), (b) and (c) for the purposes of cl.309.225 of Schedule 2 to the Regulations.

   David Crawshay

   
   

   Member

   
   

   ATTACHMENT

   Migration Regulations 1994

   Schedule 4

   4007(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)      subject to subclause (2) — 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 (1A); 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.

   (1A)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.

   (1B)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 (1A)(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.

   (2)The Minister may waive the requirements of paragraph (1)(c) if.

   (a)     the applicant satisfies all other criteria for the grant of the visa applied for; and

   (b)     the Minister is satisfied that the granting of the visa would be unlikely to result in:

   (i)undue cost to the Australian community; or

   (ii)undue prejudice to the access to health care or community services of an Australian citizen or permanent resident.