OLIVEIRA DOS SANTOS (Migration)

[2017] AATA 1930

OLIVEIRA DOS SANTOS (Migration) [2017] AATA 1930 (25 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Fabio OLIVEIRA DOS SANTOS

CASE NUMBER:  1713227

DIBP REFERENCE(S):  BCC2017/96373

MEMBER:Jennifer Cripps Watts

DATE:25 September 2017

PLACE OF DECISION:  Sydney

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:

·Public Interest Criteria 4005(1)(aa) for the purposes of cl.500.217 of Schedule 2 to the Regulations.

Statement made on 25 September 2017 at 3:27pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Medical examination – Provision of relevant documents

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 500.217, Schedule 4, cl 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 5 June 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 9 January 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.217 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because he did not satisfy Public Interest Criteria (“PIC”) 4005 because he had not given to the Minister satisfactory results of a medical and x-ray examination.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether, at the time of this decision, the applicant satisfies PIC 4005:

   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.

6. The applicant lodged his application for a subclass 500 student visa on 9 January 2017. He was sent an email by the Department, on 15 March 2017, requesting he provide supporting evidence, including the results of a medical and x-ray examination completed within the last 12 months. The applicant did not provide the information that was requested and a decision was made to refuse his student visa, on 5 June 2017, on the basis that he did not satisfy cl.500.217 of Schedule 2 to the Regulations because the health criteria in PIC 4005 of Schedule 4 to the Regulations was not met.

7. The applicant lodged an application for review of the Department’s decision to refuse his student visa with this Tribunal on 21 June 2017, within time.  The matter was constituted to this member and a hearing booked.  The applicant was sent an invitation to attend his hearing at 1:30pm on 5 October 2017.

8. On 17 September 2017, the applicant responded to the invitation and provided a document indicating that he gave Bupa consent, on 22 August 2017, to use eMedical to process his health examinations.  The letter he has provided the Tribunal, from eMedical dated 1 September 2017, confirms that he completed the medical tests and eMedical has submitted the applicant’s medical report to the Department of Immigration and Border Protection.

9. Accordingly, the Tribunal is satisfied, on the evidence provided by the applicant on 17 September 2017, the applicant meets PIC 4005(1)(aa) for the purposes of cl.500.217 of Schedule 2 to the Regulations.

10. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    DECISION

11. 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:

    ·Public Interest Criteria 4005(1)(aa) for the purposes of cl.500.217 of Schedule 2 to the Regulations.

    Jennifer Cripps Watts
    Member