Smith (Migration)

[2024] AATA 3921

Smith (Migration) [2024] AATA 3921 (11 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Chad Nathan Smith

VISA APPLICANTS:  Ms Karina Arguello Lopez
Master Jalis Haime Smith Arguello

REPRESENTATIVE:  Miss Dalila Machado Medeiros Allen (MARN: 2014135)

CASE NUMBER:  2216563

HOME AFFAIRS REFERENCE(S):          BCC2021/1375294

MEMBER:David Barker

DATE:11 September 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 300 visa:

·PIC 4007(1) for the purposes of cl 300.223 of Schedule 2 to the Regulations

The Tribunal remits the applications for reconsideration, with the direction that the second named applicant meets the following criteria for a Subclass 300 visa:

·PIC 4007(1) for the purposes of cl 300.323 of Schedule 2 to the Regulations

Statement made on 11 September 2024 at 12:27pm

CATCHWORDS
MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – health criteria – medical assessment – department records show applicants auto cleared – member of family unit – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), Schedule 2, cls 300.223, 300.323, Schedule 4, criterion 4007(1)

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 applicants Prospective Marriage (Temporary) (Class TO) visas under s 65 of the Migration Act 1958 (Cth) (the Act). The applicants applied for the visas on 7 July 2021. The delegate refused to grant the visas on 20 October 2022.

2. 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 applicants 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. In order to satisfy criteria for a Prospective Marriage (Temporary) (Class TO) visa, namely c.300.223, an applicant must, if required, demonstrate that they meet a range of Public Interest Criterion (PIC).

6. 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 failed to provide the Department with evidence that they had undergone a required medical and x-ray examination.

   Has the applicant undertaken a medical assessment (PIC 4005(1)(aa))?

7. Public Interest Criterion 4005(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.

8. On 3 September 2024, the applicant’s authorised representative advised the Tribunal that the applicants  had undertaken the required health assessments on 12 July 2024.

9. A review of Department records on 4 September 2024 show that the primary visa applicant’s health requirement  was auto cleared on 17 July 2024 and the second named visa applicant’s  health requirement  was auto cleared on 13 July 2024.

10. Given the findings above, the appropriate course is for the Tribunal to remit the matter to the Minister for reconsideration of the remaining criteria for the visa.

    DECISION

11. The Tribunal remits the application for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 300 visa:

    • PIC 4007(1) for the purposes of cl 300.223 of Schedule 2 to the Regulations

12. The Tribunal remits the application for reconsideration, with the direction that the second named applicant meets the following criteria for a Subclass 300 visa:

    ·PIC 4007(1) for the purposes of cl 300.323 of Schedule 2 to the Regulations

    David Barker
    Member