QIU (Migration)

[2022] AATA 4846

QIU (Migration) [2022] AATA 4846 (25 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Shupei QIU

VISA APPLICANT:  Mr Risheng QIU

CASE NUMBER:  2210061

HOME AFFAIRS REFERENCE(S):          BCC2016/1190426

MEMBER:Justine Clarke

DATE:25 October 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Contributory Parent (Migrant) (Class CA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 143 (Contributory Parent) visa:

·PIC 4005(1).

Statement made on 25 October 2022 at 11:07am

CATCHWORDS

MIGRATION – Contributory Parent (Class CA) visa – Subclass 143 (Migrant) visa –Health Public Interest Criterion 4005 met– visa applicant had been described as ‘meets’ the health requirement – decision under review remitted  

LEGISLATION

Migration Act 1958, ss 65, 360

Migration Regulations 1994, Schedule 2

statement of decision and reasons

application for review

1. This is an application for review of a decision made on 12 May 2022 by a delegate of the Minister for Home Affairs to refuse to grant the visa applicant a Contributory Parent (Migrant) (Class CA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. On 17 March 2016, the visa applicant applied for the visa.

3. The review applicant provided the Tribunal with a copy of the delegate’s refusal decision (the primary decision). The delegate refused to grant the visa as the visa applicant did not satisfy the health criteria in Public Interest Criterion (‘PIC’) 4005 of Schedule 4 to the Regulations. The primary decision contains an extract of PIC 4005 and it is also extracted in the attachment to the current decision. PIC 4005 requires the visa applicant, in certain circumstances, to undergo medical assessment, and to be free of certain diseases or conditions that may impact on the community. The delegate did not expressly specify which part of PIC 4005 had not been met. Rather, the delegate found that, within the requested timeframe, the visa applicant had not provided evidence that he had undertaken, or made arrangements to undertake, a medical examination through an approved medical services provider.    

4. On 11 July 2022, the review applicant applied to the Tribunal for review of the primary decision.

5. On 14 September 2022, an officer of the Tribunal accessed the Department’s Integrated Client Services Environment (ICSE) records in respect of the visa applicant. The screenshot taken of this record at this time evidences that, on 13 September 2022, the visa applicant had been described as ‘meets’ the health requirement such that it was recorded as ‘finalised health requirement’.

6. On 4 October 2022, the Tribunal wrote to the review applicant to request information so that the Tribunal could determine whether the visa applicant may be required to undergo latent tuberculosis screening. The letter explained:

   As a result of recent changes to the medical assessment requirements, additional medical assessments may now be required. These amendments require latent tuberculosis screening for applicants who intend to work, study or train in particular health care settings and who are from, or have spent time in, a higher risk country for tuberculosis (see Schedule 2 and 3 of IMMI 15/144 (compilation no 1), which commenced on 1 July 2022).

7. The answers provided on 5 October 2022 suggest that there is no need for the visa applicant to undergo latent tuberculosis screening.

8. Following constitution of this case to the Member presiding, and having reviewed the material before it, the Tribunal formed the view that a hearing was not needed. The Tribunal determined that it was able to find in favour of the applicants based on the material before it, pursuant to s 360(2)(a) of the Act.

9. Based on the evidence before the Tribunal, the Tribunal is satisfied that the visa applicant meets 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 Contributory Parent (Migrant) (Class CA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 143 (Contributory Parent) visa:

    ·PIC 4005(1).

    Justine Clarke
    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.