Patel (Migration)

[2020] AATA 3797

Patel (Migration) [2020] AATA 3797 (8 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Kokilaben Dineshkumar PATEL

CASE NUMBER:  1930567

DIBP REFERENCE(S):  BCC2019/4267871

MEMBER:Nathan Goetz

DATE:8 September 2020

PLACE OF DECISION:  Sydney

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)(aa) for the purposes of cl.600.213 of Schedule 2 to the Regulations.

Statement made on 08 September 2020 at 2:45pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – health criteria – medical examination and chest x-ray – department records indicate requirement met – decision under review remitted  

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 600.213; Schedule 4, 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 to refuse to grant the applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant last arrived in Australia on 30 May 2019 holding a visitor vis valid until 30 August 2019. On 27 August 2019 the visa applicant applied for another visitor visa and was granted a bridging visa while the visitor visa application was considered.

3. On 9 October 2019 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.

4. On 28 October 2019 the applicant applied to the Tribunal for review of the refusal decision.

5. On 25 November 2019 the applicant departed Australia and has not returned.

6. Section 360(1) of the Act requires the Tribunal to invite the applicant to appear at a Tribunal hearing. There is an exception to this requirement. Section 360(2) provides that s.360(1) does not apply if the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material provided. Having considered the material below, the Tribunal did not invite the applicant to a Tribunal hearing because it was able to decide the review in the applicant’s favour.

7. Considering the material that the Tribunal has, the Tribunal concludes that the matter should be remitted for consideration. Consequently, the Tribunal has not invited the applicant to a hearing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. The delegate decision records the following:

   On 27th August 2019, correspondence was sent via email to the applicant requesting they undertake a chest x-ray and medical examination through an approved medical services provider. The applicant was advised to respond to this request within 28 days from the receipt of the above-mentioned letter. As this letter was sent by email, it was deemed to have been received by the applicant on 27th August 2019.

   As of 9th October 2019, no evidence has been received from the applicant to demonstrate they have undertaken or made arrangements to undertake a chest x-ray and medical examination through an approved medical services provider.

   As the applicant has not undertaken or made arrangements to undertake a chest x-ray and medical examination within the specified 28-day period, the applicant has not demonstrated they satisfy Public Interest Criterion 4005. As such, I am not satisfied the applicant meets mandatory clause 600.213.

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

10. 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 IMMI 15/144.

11. The applicant is a female citizen of India aged 49 years. According to the Instrument, where a country is not mentioned in Schedule 1, then Schedule 2 applies. In Schedule 2, where the temporary visa is for a period of 6 months or more, then the applicant is required to complete a medical examination and chest x-ray.

12. It is clear that when the delegate made the decision, there was no evidence that the applicant had completed a medical examination or chest x-ray. However, Department records indicate ‘Finalised Health Requirement’ and ‘Auto-Cleared’ as at 29 June 2020. The Tribunal understands this to mean that the applicant has completed a medical examination and chest x-ray.

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

14. CONCLUDING PARAGRAPHS

15. 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)(aa) for the purposes of cl.600.213 of Schedule 2 to the Regulations.

    Nathan Goetz
    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.