Sng (Migration)

[2021] AATA 2662

Sng (Migration) [2021] AATA 2662 (20 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Jeanette Ee Mei Sng

CASE NUMBER:  2103918

HOME AFFAIRS REFERENCE(S):          BCC2020/1644794

MEMBER:Phoebe Dunn

DATE:20 May 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 188 visa:

·PIC 4005(1)(aa) for the purposes of cl.188.255(1) of Schedule 2 to the Regulations.

Statement made on 20 May 2021 at 5:28pm

CATCHWORDS
MIGRATION – Business Skills (Provisional) (Class EB) visa – Subclass 188 (Business Innovation and Investment (Provisional)) – health criteria – requisite medical assessment undertaken – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 188.255; Schedule 4, PIC 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 Business Skills (Provisional) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 29 May 2020. The delegate refused to grant the visa on 5 March 2021 on the basis that the applicant did not satisfy cl.188.255(1) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the health criteria in Public Interest Criterion (PIC) 4005 of Schedule 4 to the Regulations was not met.

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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The issue in this review is whether the visa applicant meets 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.

5. The delegate refused the applicant’s Subclass 188 visa application on the basis that the applicant had not undertaken the medical assessment as required in cl.188.255 of Schedule 2 to the Regulations.

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

6. 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. The relevant class of persons and assessments are specified in IMMI 15/144.

7. On 28 September 2020, the applicant was requested to undertake a medical assessment as required in PIC 4005. The applicant failed to undertake such an assessment within the requisite timeframe.  Evidence before the Tribunal indicates that this was due to a scheduled appointment being cancelled as a consequence of a lockdown due to the COVID-19 pandemic.  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 Regulations.

8. The applicant applied to the Tribunal for review of that decision on 31 May 2019.

9. On 26 March 2021, the Tribunal received confirmation that the applicant had attended a visa medical assessment with Bupa Medical Services on 20 March 2021. A review of Departmental records shows that the applicant has been assessed as meeting this requirement. As such, the Tribunal finds that the applicant has undertaken the requisite medical assessments as required by PIC 4005(1)(aa) for the purposes of cl.188.255(1) of the Regulations.

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 applicant meets the following criteria for a Subclass 188 visa:

    ·PIC 4005(1)(aa) for the purposes of cl.188.255(1) of Schedule 2 to the Regulations.

    Phoebe Dunn
    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.