Nguyen (Migration)

[2023] AATA 1899

Nguyen (Migration) [2023] AATA 1899 (22 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Thi Anh Hong NGUYEN

CASE NUMBER:  2305390

HOME AFFAIRS REFERENCE(S):          BCC2019/883552

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Mireya Hyland

DATE:22 June 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 (Spouse) visa:

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

Statement made on 22 June 2023 at 4:18pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – health criteria – medical assessment – department’s records show health requirements finalised and applicant auto-cleared – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.25A(3), 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 on 31 March 2023 to refuse to grant the applicant, Thi Anh Hong Nguyen, a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958.

2. Mrs Nguyen applied for the visa on 14 January 2020. At the time of application, Class UK contained one subclass: Subclass 820 Partner. The criteria for the grant of a Subclass 820 Partner visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate refused to grant the visa on the basis that Mrs Nguyen did not satisfy cl.820.223 of the Regulations because the health criteria in Public Interest Criterion (PIC) 4007 of Schedule 4 to the Regulations was not met. The delegate did not consider any requirements other than those contained in PIC4007. Mrs Nguyen lodged an application for review of the decision with the Tribunal on 17 April 2023. The delegate’s decision was provided to the Tribunal by Mrs Nguyen with her review application.

3. The issue in this review is whether Mrs Nguyen meets PIC4007 as required by the criteria for the grant of the visa. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. Public Interest Criterion 4007, 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. 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: PIC4007(1)(aa). The applicant must be free from tuberculosis and 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: PIC4007(1)(a) and (b). Also, the applicant must be free from a disease or condition likely to require health care or community services or which meet the medical criteria for provision of a community service during a specified period where provision of the health care or community services (regardless of whether it will actually be used) would be likely to: 1) result in a significant cost to the Australian community; or 2) prejudice access of an Australian citizen or permanent resident to health care or community services: PIC4007(1)(c).

5. The relevant classes of persons and assessments for PIC4007(1)(aa) are specified in IMMI 15/144 as amended by LIN 22/065. The classes of persons are persons who are citizens of a country or who have spent three or more consecutive months during the last five years in a country or countries either listed or not listed in Schedule 1 to that Instrument. Mrs Nguyen is a citizen of Vietnam. There is no evidence before the Tribunal that she has spent more than three consecutive months in any country other than Vietnam or Australia during the last five years. Vietnam is not listed in Schedule 1 to the Instrument.

6. Schedule 2 to IMMI 15/144 lists the medical assessments to be undertaken by citizens of countries that are not listed in Schedule 1. Although a Subclass 820 Partner visa is a temporary visa, it is also one of the subclasses of visa that are treated the same as a permanent visa under PIC4007 (see, for instance, the visas listed in LIN 22/007 for the purposes of PIC4007(1A) and (1B)). These provisional visas attract the same medical assessments as a permanent visa listed in Column D of Schedule 2 to IMMI 15/144 rather than those required for a temporary stay in Columns B or C. For permanent and provisional visa applicant aged 15 years or older, the applicant is required to undergo a medical examination, chest x-ray, and HIV test. Medical assessments conducted within Australia must be conducted by Bupa Australia Health Pty Ltd, trading as Bupa Medical Visa Services, or an Approved Medical Practitioner.

7. Schedule 3 to IMMI 15/144 requires additional tests in certain circumstances. These are where the applicant intends to work, study or train as a doctor, dentist, nurse, paramedic, health care worker or childcare worker, or intends to work in the health care profession, an aged care or disability facility, or childcare centre, or is likely to enter a health care or hospital environment. There are also additional tests required where the applicant is pregnant and intends to have the baby in Australia and for visitors who are at least 75 years old. On 31 May 2023, Mrs Nguyen confirmed to the Tribunal that she does not fall within any of the classes of person for whom additional medical assessments are required.

8. In determining whether a person meets PIC4007(1)(a), (b) or (c), r.2.25A requires the Tribunal to seek the opinion of a MOC unless the application is for a temporary visa and there is no information known to Immigration to the effect that the person may not meet any of those requirements. Where an opinion of a MOC is required, the Tribunal must take it to be correct: r.2.25A(3). For temporary visas, certain health care and community services are excluded from consideration of PIC4007(1)(c) unless specified in the Instrument for the purposes of PIC4007(1A): PIC 4007(1B). A Subclass 820 Partner visa is listed in LIN 22/007 and, therefore, the exemption in PIC4007(1B) for the health care and community services listed in IMMI 22/014 does not apply. However, there is no evidence that there is information known to immigration that Mrs Nguyen may not meet PIC4007(1)(a), (b) or (c).

9. Applicants are required to comply with any request by a MOC to undertake a medical assessment or sign an undertaking to present themselves to a health authority for a follow-up medical assessment: PIC4007(1)(ab) and (d). There is no evidence that a MOC has requested that Mrs Nguyen comply with the requirements in PIC4007(1)(ab) or (d).

10. Based on the above information the Tribunal finds that in Mrs Nguyen’s case a MOC opinion is not required.

11. The Department of Home Affairs’ records show that on 14 April 2023 Mrs Nguyen finalised the health requirements for PIC4007 and was ‘Auto Cleared’. The Department has confirmed to the Tribunal that where its records show that an applicant has been Auto Cleared it is an eMedical with no MOC involvement or assessment and no Form 884 is available. Therefore, the Tribunal accepts the Department evidence that Mrs Nguyen meets all the health requirements in the legislation and has been cleared to the standard of an applicant for a provisional temporary visa made where the specified class of person is a citizen of Vietnam who does not require additional medical assessment under Schedule 3 to IMMI 15/144.

12. Mrs Nguyen meets PIC4007 of the Regulations.

13. 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

14. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 (Spouse) visa:

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

    Mireya Hyland

    
    

    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.