Tang (Migration)

[2021] AATA 2833

Tang (Migration) [2021] AATA 2833 (16 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Julie Hea Tsean Tang

CASE NUMBER:  2018270

HOME AFFAIRS REFERENCE(S):          BCC2020/2628475

MEMBER:Angela Cranston

DATE:16 June 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Medical Treatment (Visitor) (Class UB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 602 visa:

·PIC 4001 for the purposes of cl.602.217 (1) of Schedule 2 to the Regulations

Statement made on 16 June 2021 at 11:40am

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – subclass 602 – character test – National Police Certificate provided – no disclosable Court outcomes – decision under review remitted

LEGISLATION
Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 602.217; Schedule 4, PIC 4001

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 22 December 2020 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 12 November 2020. At that time, Class UB contained one subclass, Subclass 602 (Medical Treatment). The criteria for the grant of this visa are set out in Part 602 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

3. The delegate refused to grant the visa on the basis that she did not satisfy cl. 602.217 (1) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the criteria in Public Interest Criterion ('PIC') 4001 of Schedule 4 to the Regulations was not met.

4.    The Tribunal did not consider a hearing to be necessary as it was able to remit the matter on the material before it.

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

CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

6.    The issue in the present case is whether the applicant meets PIC4001 as required by the criteria for the grant of the visa. PIC4001, as it applies to this case, is extracted in the attachment to this decision. It requires the applicant satisfy the Minister (or in this case the Tribunal) that he passes the character test or the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that he would fail to satisfy the Minister that he passes the character test or the Minister has decided not to refuse to grant a visa to him despite reasonably suspecting that he does not pass the character test or the Minister has decided not to refuse to grant a visa to him despite not being satisfied that he passes the character test.

7.    On 23 November 2020, the Department of Home Affairs (the Department) requested that the applicant provide outstanding documents including a current AFP Police Check within 28 days. The applicant did not respond to that request within the timeframe nor did he seek an extension of time to do so. The delegate from the Department was therefore not satisfied that the met the requirements of PIC 4001. The delegate found that she did not satisfy cl.602.217 (1) and refused the visa application.

8.    The Tribunal received a National Police Certificate dated 14 May 2021 which indicated that she did not have any disclosable Court outcomes recorded against her as at 14 May 2021.

9.    On the evidence before it, the Tribunal finds that the requirements in PIC 4001 are met for the purposes of cl.602.217 (1).

1. Given the finding above, the appropriate course is for the Tribunal to remit the visa application to the Minister for reconsideration of the remaining criteria for the visa.

DECISION

1. The Tribunal remits the application for a Medical Treatment (Visitor) (Class UB) Subclass 602 visa for reconsideration, with the direction that the applicant meets the following criteria for a Medical Treatment (Visitor) (Class UB) Subclass 602 visa:

   PIC 4001 for the purposes of cl.602.217 (1) of Schedule 2 to the Regulations.

Angela Cranston
Member