Sandhoo (Migration)

[2023] AATA 2599

Sandhoo (Migration) [2023] AATA 2599 (31 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Bibi Ajianah Sandhoo
Mr Mohammad Zubair Hosany
Master Muhammad Zeeshan Hosany

REPRESENTATIVE:  Mrs Melanie Kay Macfarlane (MARN: 0319166)

CASE NUMBER:  2305285

HOME AFFAIRS REFERENCE(S):          BCC2022/5306582

MEMBER:David Crawshay

DATE:31 July 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for Temporary Activity (Class GG) visas for reconsideration, with the direction that the first-named applicant meets the following criterion for a Subclass 408 (Temporary Activity) visa:

·PIC 4005 for the purposes of cl 408.216 of Schedule 2 to the Regulations.

Statement made on 31 July 2023 at 11:36am

CATCHWORDS
MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – health criteria – department records show requirement finalised – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 408.216, Schedule 4, criterion 4005

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 6 April 2023 to refuse to grant the applicants Temporary Activity (Class GG) visas under s.65 of the Migration Act 1958 (Cth) (the Act). The applicants applied for the visas on 8 December 2022. The delegate refused to grant the visa on the basis that the first named applicant (now referred to as the applicant) did not satisfy cl.408.216 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the health criteria in Public Interest Criterion (“PIC”) 4005 of Schedule 4 to the Regulations was not met at the time of making the decision.

2. Since the delegate’s decision, Department records show that the health requirement was found to have been finalised in respect of the applicant on 11 May 2023.

   DECISION

3. The Tribunal remits the application for Temporary Activity (Class GG) visas for reconsideration, with the direction that the first-named applicant meets the following criterion for a Subclass 408 (Temporary Activity) visa:

   ·PIC 4005 for the purposes of cl 408.216 of Schedule 2 to the Regulations.

   David Crawshay
   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.