SAHU (MIGRATION)
[2024] ARTA 142
•9 December 2024
SAHU (MIGRATION) [2024] ARTA 142 (9 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
DIVISION:Migration & Refugee Division
APPLICANT: Ms Nikita Sahu
RESPONDENT: Minister for Immigration and Multicultural Affairs
CASE NUMBER: 2442946
HOME AFFAIRS REFERENCE(S): BCC2024/3454744
MEMBER:General Member D Gordon
DATE:9 December 2024
PLACE OF DECISION: Melbourne
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:
·PIC 4005(1) for the purposes of cl 500.217 of Schedule 2 to the Regulations.
Statement made on 09 December 2024 at 1:55pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – applicant completed her health assessment requirements – health criteria in Public Interest Criterion (‘PIC’) 4005 met – decision under review remittedLEGISLATION
Administrative Review Tribunal Act 2024 (ART Act), s 106(3)(b)(i)
Migration Act 1958, s 65Migration Regulations 1994, Schedule 2, cl 500.217, Schedule 4, Public Interest Criterion (‘PIC’) 4005
STATEMENT OF REASONS
INTRODUCTION
This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs on 31 October 2024 to refuse to grant the applicant a Subclass 500 Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 30 June 2024.
The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 500.217 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the health criteria prescribed by Public Interest Criterion (‘PIC’) 4005 (1) of Schedule 4 to the Regulations was not met. The relevant part of PIC 4005 is annexed below.
The delegate found that the applicant had not provided evidence that she had undertaken the required medical examinations through an approved medical services provider within the requested timeframe. The applicant is from a country that is required to undertake medicals.
The applicant lodged a merits review of the delegate’s refusal decision with the Tribunal.
ANALYSIS
For the reasons that follow the Tribunal has found wholly in favour of the applicant based on the evidence before it, and therefore the Tribunal has reached a decision without a hearing pursuant to s 106(3)(b)(i) of the Administrative Review Tribunal Act 2024 (ART Act).
Evidence obtained from the Department’s Integrated Client Services Environment record shows the applicant as having ‘finalised health requirement – auto cleared’ on 14 November 2024. Based on this evidence, the Tribunal is satisfied that the applicant now meets PIC 4005 (1).
The appropriate course is therefore for the Tribunal to remit the matter to the Department for reconsideration of the remaining criteria for the visa for the applicant.
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:
·PIC 4005(1) for the purposes of cl 500.217 of Schedule 2 to the Regulations.
Representative for the applicant: Mr Bipinchandra Patel (MARN: 1678995)
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.
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