Samuels (Migration)

[2023] AATA 4272

Samuels (Migration) [2023] AATA 4272 (11 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Robin Helen Samuels

CASE NUMBER:  2313934

HOME AFFAIRS REFERENCE(S):          BCC2018/429321

MEMBER:P. Maishman

DATE:11 December 2023

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

Statement made on 11 December 2023 at 3:00pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – personal assistant – health criteria – medical examination – multiple failures to undergo examinations – claim of  anxiety and no appearance at hearing – old medical reports and some other documents provided – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 187.235(1), 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 Home Affairs to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 25 January 2018. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the 'Common criteria', as well as the criteria of one of two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Personal Assistant (ANZSCO 521111).

5. The delegate refused to grant the visa because the applicant did not meet cl 187.235 of Schedule 2 to the Regulations because the delegate was not satisfied the applicant meets public interest criterion (PIC) 4005, because she did not provide the required medical examination.

6. On 12 September 2023, the Tribunal invited the applicant to provide information about her relevant health examinations and medical assessments by 12 October 2023. On 11 October 2023, the applicant wrote to the Tribunal claiming that she did not understand the medical assessment and she required an extension. The Tribunal extended the period within which to respond to 12 November 2023, however information about her relevant health examinations and medical assessment was not received.    

7. On 23 November 2023, the Tribunal wrote to the review applicant advising that it had considered all the material before it relating to her application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 11 December 2023.

8. On 8 December 2023, the applicant advised the Tribunal that she did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable her to appear before it. Notwithstanding the lack of any evidence that the applicant has a diagnosed condition preventing her from attending a hearing, the Tribunal was concerned the applicant’s claimed anxiety prevented her from doing so. The Tribunal preferred to proceed with the hearing and requested the Registry staff to discuss strategies such as video attendance and having a support person assist. Ultimately, the applicant reiterated she would not attend and did not answer the telephone at the time of her hearing.

9. The applicant did not attend the hearing at the time and place advised. This matter has therefore been determined on the evidence available to the Tribunal.

10. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The Tribunal had before it a copy of the Department’s file. The applicant is a 48 year old South African citizen.

12. The applicant gave the Tribunal a copy of the delegates decision record with her application for review. The Tribunal expedited the application because the applicant has previously had her visa  application remitted to the Department from the Tribunal (differently constituted) for reconsideration. The application history, summarised from the delegate’s decision record, is that the applicant was requested in writing on 5 July 2022; 14 November 2022; 4 April 2023 and 23 June 2023 to undergo a health examination and failed to do so.

13. The applicant gave the Tribunal a fact sheet from Australian Unity health insurers on 12 November 2023. The applicant gave the Tribunal reports of a chest x-ray and pathology tests undertaken 3 July 2018 on 30 November 2023. The Tribunal received various personal reference letters of support on 5 December 2023. The applicant gave the Tribunal a bundle of other documents on 7 December 2023 including, but not limited to, a written submission dated 4 December 2023 and details of a referral for a medical examination dated 15 June 2018.

14. The issue before the Tribunal is whether the applicant has met PIC 4005 for the purposes of cl 187.235.  

    Legislation and regulation

15. The applicant must satisfy cl 187.235(1) of Schedule 2 of the Regulations in respect of the health criteria in PIC 4005.

16. PIC 4005(1)(aa) of Schedule 4 to the Regulations requires the following:

    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;…

17. The relevant written instrument is IMMI 15/144. Schedule 2 of IMMI 15/144 provides that an applicant for a permanent and provisional visa from a country not listed in Column A of Schedule 1 is required to undergo a medical examination; a chest x-ray; and an HIV test. The instrument specifies that medical assessments are to be undertaken by BUPA Australia Health Pty Ltd trading as BUPA Medical Visa Services, or an approved medical practitioner.

    Has the applicant undertaken a medical assessment

18. The applicant is a citizen of South Africa and applied for a Subclass 187 visa which is a permanent visa.

19. The Tribunal finds the applicant is in a class of persons specified in IMMI 15/144 by the Minister and must undertake a medical examination; chest x-ray; and an HIV test. There is no evidence before the Tribunal that a Medical Officer of the Commonwealth has decided otherwise.

20. On 5 July 2022, the delegate wrote to the applicant and advised that she was required to undergo a health examination, chest x-ray examination, and HIV test. The letter advised the applicant that she would need to make arrangements to have the examinations conducted by Bupa Medical Visa Services, which is the approved migration medical services provider. The letter directed the applicant to provide evidence that she had made arrangements for the examinations to be conducted.

21. The applicant provided the delegate confirmation of a visa medical appointment booking for 16 August 2022.

22. The delegate did not receive a report of the applicant’s medical examination and on 9 November 2022 BUPA advised the delegate that the applicant was requested to undergo a new immigration medical examination and had failed to attend three booked appointments in August and September 2022.

23. The delegate was unable to confirm the applicant’s attendance for a health examination and on 14 November 2022 wrote to the applicant requesting her to arrange a health examination with BUPA Medical Visa Services. The letter included steps to take if she believed she had already completed the required health examination.

24. On 10 December 2022, the applicant wrote to the delegate advising she hoped to receive the medical report by mid-February 2023. On 26 February 2023, the applicant wrote to the delegate advising she was still awaiting the medical report.

25. No report was received and on 4 April 2023 the delegate again wrote to the applicant requesting her to arrange a health examination with BUPA Medical Visa Services. The letter included steps to take if she believed she had already completed the required health examination.

26. The applicant sent the Department confirmation of a BUPA Medical Visa Services appointment for 8 May 2023.

27. No report was received and on 23 June 2023 the delegate again wrote to the applicant requesting her to arrange a health examination with BUPA Medical Visa Services. The letter included steps to take if she believed she had already completed the required health examination.

28. The applicant sent the Department confirmation of a BUPA Medical Visa Services appointment for 28 July 2023. The delegate sets it received no report or information about the health examination being completed.

29. The applicant’s response to the Tribunal’s 12 September 2023 invitation to undertake the required medical examinations was that she is unable to do so because her father has cancer and she may be required to travel.

30. On 30 November 2023 applicant gave the Tribunal evidence she undertook a chest x-ray examination and HIV test on 3 July 2018. The applicant has provided no evidence she has undertaken a medical examination with BUPA Medical Visa Services.

31. The Tribunal acknowledges the applicant’s written submission of her fear of returning to live in South Africa. The Tribunal acknowledges the references from the applicant’s family and friend. The Tribunal accepts the applicant’s submissions and documents; however they are unrelated to the issue before the Tribunal which is whether the applicant meets the health related public interest criteria. The Tribunal accepts the applicant’s submission to have completed a chest x-ray and HIV test.

32. There is no discretion for the Tribunal to make determined that the applicant is not required to undertake the medical assessments.

33. The Tribunal finds the applicant has not undertaken the medical assessment specified in IMMI 15/144.

34. Accordingly, the applicant does not satisfy PIC 4005(1) and the requirements of cl 187.235 is not met.

35. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Direct Entry stream have not been met, the decision under review must be affirmed.

    DECISION

36. The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

    P. Maishman
    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.