Sung (Migration)

[2018] AATA 739

Sung (Migration) [2018] AATA 739 (6 March 2018)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANT:  Mr WooYong Sung

CASE NUMBER:  1706239

DIBP REFERENCE(S):  CLF201643120

MEMBER:Ann Brandon-Baker

DATE OF DECISION:  6 March 2018

DATE CORRIGENDUM

SIGNED:10 April 2018

PLACE OF DECISION:  Brisbane

AMENDMENT:  The following corrections are made to the decision:

The words “The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.” at paragraph 19 should be removed.

Ann Brandon-Baker

Senior Member

.

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr WooYong Sung

CASE NUMBER:  1706239

DIBP REFERENCE(S):  CLF201643120

COUNTRY OF REFERENCE:                  Korea, Republic Of

MEMBER:Ann Brandon-Baker

DATE:6 March 2018

PLACE OF DECISION:  Brisbane

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.

and

·PIC 4017 for the purposes of cl.802.225 of Schedule 2 to the Regulations.

.

Statement made on 06 March 2018 at 12:06pm

CATCHWORDS
Migration – Child (Residence) (Class BT) visa – Subclass 802 (Child) – Various required documents not provided to Department – Required documents subsequently provided to the Tribunal

LEGISLATION
Migration Act 1958, ss 65, 359(2)
Migration Regulations 1994, Schedule 2, cls 802.223, 802.225, Schedule 4, PIC 4007, 4017

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 Immigration on 14 March 2017 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 19 July 2016. The delegate refused to grant the visa as the applicant did not satisfy cl.802.223 or cl.802.225 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4007 of Schedule 4 to the Regulations was not met and neither was PIC4017 which requires the Minister be satisfied that the applicant’s migration to Australia is consistent with the laws of the applicant’s home country.

3. The applicant appeared before the Tribunal on 6 March 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother (the sponsor) and his two elder sisters.

4. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this review is whether the visa applicant meets two specified Public Interest Criterion.

7. The first of those is (PIC) 4007. This is a required criterion 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 provide the department with evidence that he had undergone the prescribed medical assessment.

8. 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. In this case the applicant is in a specified class of person.

9. On 11 July 2016, the applicant provided advice to the department that they attended a doctor at Ascot Family Practice in Queensland to obtain the necessary assessment. The delegate informed the applicant that the practice is not on the list of approved providers in Queensland and despite requesting that the assessment be done by an approved provider several times over a period of some months by the department, the applicants failed to provide a relevant assessment at the time of the delegate’s decision on 14 March 2017.

10. The Tribunal wrote to the applicant under the provisions of s.359(2) asking for a copy of the specified medical assessment and the applicant provided information confirming that they had the relevant health assessment conducted by the relevant authority on 27 March 2017. The Tribunal put this information to the department who informed it on Thursday 8 February 2018 that the applicant had, indeed, received an auto-cleared outcome on 28 March 2017. This assessment expires on 28 March 2018. The assessment is at Folios 66-68 of the Tribunal’s file.

11. For these reasons the Tribunal finds that the requirements in PIC 4007(1)(aa) are met. Therefore the Tribunal is satisfied that the applicant meets the requirement of cl.802.223

12. The second Public Interest Criteria is in relation to PIC 4017. This requires the law of the applicant’s home country to permit the removal of the applicant, or each person who can lawfully determine where the applicant is to live consents to the grant of the visa, or the grant of the visa would be consistent with any Australian child order in force in relation to the applicant. If the applicant fails to satisfy PIC4017 then they also fail to meet the requirements of cl.802.225.

13. The applicant provided the delegate of the department a translated copy of his father’s death certificate to demonstrate the sponsor can lawfully determine where he shall live. However a copy of the original death certificate had not been provided to the delegate prior to the decision being made. The delegate had also sought an untranslated family relations certificate. Neither of these documents was received by the delegate prior to him making a decision. As the delegate could not verify the death of the applicant’s father, he formed a view that the applicant did not meet PIC 4017.

14. The applicant provided the Tribunal with two copies of the applicant’s father’s untranslated death certificate, along with an English translation undertaken by an accredited interpreter and certified by a postal officer at the Red Hill Post office on 29 August 2012 and 14 December 2015. It’s not clear why these documents were not presented to the department at the time of application and the applicant was unable to explain this at the hearing.

15. Nevertheless the applicant also provided the Tribunal with the originals of all the relevant documents, including the household register which was provided at the death of the sponsor’s husband and applicant’s father on 24 August 2005. It names the applicant’s other as the head of the household and the applicant and his two sisters as members of her family. The Tribunal took a photocopy of this document at the hearing and it is on the Tribunal’s file.

16. The applicant, his mother (the sponsor) as well as the applicant’s two sisters provided cogent, plausible and verifiable evidence at the hearing that there are no legal obligations or orders attached to the applicant that would prevent him from migrating to Australia.

17. Aon the basis of the evidence before it the Tribunal is satisfied that the requirements of PIC4017 are met.

    CONCLUSION

18. 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

    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.

    and

    PIC 4017 for the purposes of cl.802.225 of Schedule 2 to the Regulations.

19. The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

    A B Baker

    
    

    Senior 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.