Singh (Migration)

[2021] AATA 979

Singh (Migration) [2021] AATA 979 (3 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Master Tejas Singh

CASE NUMBER:  2100591

HOME AFFAIRS REFERENCE(S):          CLF2020/16175

COUNTRY OF REFERENCE:                   India

MEMBER:Brendan Darcy

DATE:3 March 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 (Child) visa:

·PIC 4007(1)(aa) for the purposes of cl 802.223 of Schedule 2 to the Regulations.

Statement made on 03 March 2021 at 10:20am

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – health criteria – health examination – finalised health requirement – decision under review remitted         

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 802.223; Schedule 4 Public Interest Criterion 4007

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 on 12 January 2021 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 21 April 2020. The delegate refused to grant the visa as the applicant did not satisfy cl 802.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4007 of Schedule 4 to the Regulations was not met.

3. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The issue in this review is whether the visa applicant meets Public Interest Criterion (PIC) 4007 as required by the criteria for the grant of the visa. Public Interest Criterion 4007, 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. This last requirement may be waived in certain circumstances. The applicant in this case did not meet PIC 4007(1)(aa) at the time of decision, pursuant to cl.802.223.

   Has the applicant undertaken a medical assessment (PIC 4007(1)(aa))?

5. Clause 4007(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.

6. This application was lodged on 21 April 2020.

7. On 20 August 2020, the Department wrote to the applicant requesting him to undergo a health examination. The Department did not receive any response within the requested timeframe or request an extension of that timeframe. 

8. Under these circumstances, a delegate on behalf of the Minister proceeded not to grant the applicant a Subclass 802 Child visa on 12 January 2021, as the delegate found that, within the requested timeframe, the applicant had not provided evidence that he had undertaken, or made arrangements to undertake, a medical examination through an approved medical services provider.

9. On 19 January 2021, the applicant applied to the Tribunal for review of the delegate’s refusal decision. The applicant provided the Tribunal with a copy of the delegate's decision.

10. On 22 January 2021, the Tribunal wrote to the applicant to invite him to undertake a health examination. Subsequently, the applicant informed the Tribunal that he had an appointment on 27 January 2021.

11. On 2 February 2021, an officer of the Tribunal accessed the Department's ICSE records in respect of the applicant. The screenshot taken of this record at this time evidences that, on 27 January 2020, the applicant had been recorded as 'meets' the health requirement such that it was recorded as 'finalised health requirement'.

12. 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 required.

13. The Tribunal determined that it was able to find in favour of the review applicant based on the material before it, pursuant to s.360(2)(a) of the Act.

14. For these reasons the requirements in PIC 4007(1)(aa) are met.

15. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for the visa.

    DECISION

16. The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 (Child) visa:

    ·PIC 4007(1)(aa) for the purposes of cl 802.223 of Schedule 2 to the Regulations.

    Brendan Darcy

    
    

    Member

    ATTACHMENT

    Migration Regulations 1994

    Schedule 4

    4007(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)      subject to subclause (2) — 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 (1A); 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.

    (1A)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.

    (1B)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 (1A)(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.

    (2)The Minister may waive the requirements of paragraph (1)(c) if.

    (a)     the applicant satisfies all other criteria for the grant of the visa applied for; and

    (b)     the Minister is satisfied that the granting of the visa would be unlikely to result in:

    (i)undue cost to the Australian community; or

    (ii)undue prejudice to the access to health care or community services of an Australian citizen or permanent resident.