Nguyen (Migration)

[2019] AATA 1717

Nguyen (Migration) [2019] AATA 1717 (26 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Thi Thu Huong Nguyen

CASE NUMBER:  1900261

DIBP REFERENCE(S):  BCC2018/4250861

MEMBER:Paul Windsor

DATE:26 February 2019

PLACE OF DECISION:  Melbourne

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:

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

Statement made on 26 February 2019 at 11:56am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – health requirements – free of certain diseases or conditions that may impact community – medical assessment – chest x-ray – relevant assessments undertaken – evidence applicant meets health requirements provided – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.213, 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 Immigration on 18 December 2018 to refuse to grant the applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 29 September 2018. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.600.213 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4005 of Schedule 4 to the Regulations was not met.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The issue in this review is whether the visa applicant meets Public Interest Criterion (PIC) 4005 as required by the criteria for the grant of the visa. 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. The applicant in this case was requested on 25 October 2018 to undertake a chest x-ray and medical assessment through an approved medical services provider but failed to do so by the time of decision on 18 December 2018. As the applicant had not undertaken, or made arrangements to undertake a chest x-ray and medical examination, the delegate found that she had not demonstrated she satisfied Public Interest Criterion 4005 and therefore was not satisfied the applicant met mandatory clause 600.213.

   Has the applicant undertaken a medical assessment (PIC 4005(1)(aa))?

5. Public Interest Criterion 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. The relevant class of persons and assessments are specified in Instrument IMMI 15/144.

6. As a class of persons who is a citizen of a country (Vietnam) that is not listed in Column A of Schedule 1 of Instrument IMMI 15/144 and who is aged 11 years or older and is seeking a temporary stay in Australia of six months or more, the applicant is required to have undertaken a medical examination, chest x-ray and any additional medical assessments as specified. 

7. Evidence before the Tribunal indicates that the applicant undertook the relevant assessments and that on 13 February 2019 a Medical Officer of the Commonwealth (MOC) found that she meets the health requirement.

8. For these reasons the requirements in PIC 4005(1)(aa) are met.

   Is a MOC opinion required?

9. As noted above, a MOC found on 13 February 2019 that the applicant meets the health requirement.  On the basis of the evidence before the Tribunal, the applicant satisfies PIC 4005(1).

10. 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

11. 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:

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

    Paul Windsor
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    Schedule 4

    4005(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)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 (2); 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.

    (2)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.

    (3)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 (2) (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.