Sitthicharoensa-koon (Migration)

[2024] AATA 3954

Sitthicharoensa-koon (Migration) [2024] AATA 3954 (13 September 2024)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kanapich Sitthicharoensa-koon

REPRESENTATIVE:  Mr Bongkan Butsayakorn (MARN: 1068873)

CASE NUMBER:  2215796

HOME AFFAIRS REFERENCE(S):          BCC2021/606175

MEMBER:David Barker

DATE OF DECISION:  13 September 2024

DATE CORRIGENDUM

SIGNED:8 October 2024

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

Paragraphs 13 and 14 of the Tribunal's Decision record should read:

13.       On 11 September 2024, the Tribunal sought clarification from the Department of the outcome of the Bupa visa medical assessment undertaken by the applicant upon 15/08/2024 if this information is available.           

14.       On 11 September 2024, the Tribunal received confirmation that the applicant’s health assessment has been finalised, assessment status is ‘Meets – 30 August 2024’.

David Barker
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kanapich Sitthicharoensa-koon

REPRESENTATIVE:  Mr Bongkan Butsayakorn (MARN: 1068873)

CASE NUMBER:  2215796

HOME AFFAIRS REFERENCE(S):          BCC2021/606175

MEMBER:David Barker

DATE:13 September 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 visa:

·PIC 4005 for the purposes of cl 500.217 of Schedule 2 to the Regulations

Statement made on 13 September 2024 at 10:18am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – health criteria – subsequent clear medical assessment provided upon review – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 500.217; Schedule 4, Public Interest 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 Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 29 June 2021. The delegate refused to grant the visa on 10 October 2022. The delegate made the decision on the basis that evidence of a medical assessment was not provided as required to satisfy a criterion for the grant of the visa under the Migration Regulations 1994 (Cth) (the Regulations).

3. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

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

   BACKGROUND

5. The applicant is a national of Thailand and is 35 years old. They first arrived in Australia in March 2016 on a Subclass 420 temporary Work (Entertainment) visa, which was valid till October 2016. They were subsequently granted Subclass 500 Student visa in October 2017and 6 May 2021. Prior to the cessation of that latter visa the applicant, on 29 June 2021, applied for the Subclass 500 Student visa which is the focus of the current review.

6. In explaining why the visa application was refused in their decision record, a copy of which was filed with the Tribunal in association with the review application, the delegate noted that:

   Clause 500.217 required the applicant to provide the Minister with evidence they satisfy a range of Public Interest Criteria (PIC) including criterion 4005.

   Public Interest Criteria 4005 requires applicants to meet the health requirement by
   undertaking medical assessments, as specified in a legislative instrument with the approved migration medical services provider, Bupa Medical Visa Services.

   In order to determine whether the applicant meets the health requirement, the applicant was requested to undertake specified medical examinations with the approved migration medical services provider, Bupa Medical Visa Services.

   The applicant's health examinations was assessed by the Medical Officer of the Commonwealth (MOC) as 'does not meet' on 5 October 2022.

7. The delegate determined that the applicant did not meet PIC 4005 and as a consequence did not meet  cl 500.217, which is a required criteria to be satisfied in order to qualify for the Student visa.

8. On 8 November 2022, the Tribunal wrote to the applicant requesting they undertake a health examination and provided a link to the Department of Home Affairs (the Department) website which contained information  as to how to arrange a health examination relevant to meeting health requirements.

9. By way of an email dated 9 November 2022 the applicant’s representative sought clarification as to whether the Tribunal wanted the applicant to undergo another health examination, as the decision to refuse the visa was  not made because they had failed to undergo the health examination,  but rather because the  applicant's health examinations was assessed by the MOC as 'does not meet' .

10. The Tribunal subsequently, on 13 May 2024, wrote to the Department requesting  assistance in in obtaining a request for a further medical opinion of a Medical Officer of the Commonwealth (RMOC).

11. On 21 June 2024, the Tribunal received confirmation from the Department that a referral for the RMOC had been made to Bupa Medical Visa Services, but that their health case had been deferred pending receipt of the requested information. It was noted in information received from the Department that the applicant  should make an appointment with Bupa as quickly as possible.

12. On 6 September 2024, the Tribunal received an email from the applicant’s representative confirming  that the completed their medical examination on 15 Aug 2024 and that they had uploaded the BUPA confirmation via the online portal and also attached a copy of the Bupa Medical Visa Services booking confirmation  regarding an appointment for the applicant at  Sydney - Bupa Centre Level 1, 35 Clarence Street Sydney at 2.00 pm on Thursday, 15 August 2024.

13. On 11 November 2024, the Tribunal sought clarification from the Department of the outcome of the Bupa visa medical assessment undertaken by the applicant upon 15/08/2024 if this information is available.

14. On 11 November 2024, the Tribunal received  confirmation that the applicant’s health assessment has been finalised, assessment status is ‘Meets – 30 August 2024’.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in this review is whether the visa applicant meets Public Interest Criterion (PIC) 4005 as required by the criteria for the grant of the visa. Public Interest Criterion 4005, 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. The applicant in this case was required to undergo  medical assessments with specified tests.

16. Information provided to the Tribunal by the Department shows the applicant has complied with the requested medical assessment on 15 August 2024 and is recorded as having met this health requirement on 30 August 2024. Therefore, on the basis of this evidence, the Tribunal has determined that the applicant satisfies PIC 4005.

    DECISION

17. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 visa:

    ·PIC 4005 for the purposes of cl 500.217 of Schedule 2 to the Regulations

    David Barker
    Member

    
    

    Public interest criteria (PIC) 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;

    (iii)       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.