Taylor (Migration)

[2020] AATA 4826

Taylor (Migration) [2020] AATA 4826 (18 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Nicole Taylor

CASE NUMBER:  2007060

HOME AFFAIRS REFERENCE(S):          CLF2018/27420

MEMBER:Kira Raif

DATE:18 November 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 835 (Remaining Relative) visa:

·PIC 4005(1)(c) for the purposes of cl.835.223 of Schedule 2 to the.

Statement made on 18 November 2020 at 3:59pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) – health criteria – opinion of medical officer of commonwealth provided to department after refusal decision – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.25A, Schedule 2, cl 835.223, Schedule 4, criterion 4005(1)(c)

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 30 March 2020 to refuse to grant the applicant a Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 12 March 2018. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.835.223 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. The applicant was represented in relation to the review by her registered migration agent. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. 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, 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. Public interest criterion 4005(1)(c) requires the applicant be free from a disease or condition which would be likely to require health care or community services or which would meet the medical criteria for provision of a community service during the specified period; and  provision of the health care or community services (regardless of whether it will actually be used in connection with the applicant) would be likely to: result in a significant cost to the Australian community in the areas of health care and community services; or prejudice access of an Australian citizen or permanent resident to health care or community services. For specified temporary visas, certain specified health care and community service are excluded from this consideration: PIC 4005(3).

6. As the applicant in this case has applied for a permanent visa, the exclusion provision in PIC 4005(3) does not apply.

7. In determining whether a person meets PIC 4005(1)(a), (b) or (c) r.2.25A requires the Tribunal to seek the opinion of a Medical Officer of the Commonwealth (MOC) unless: the application is for a temporary visa and there is no information known to Immigration to the effect that the person may not meet those requirements; or the application is for a permanent visa and made from a specified country and there is no information known to Immigration to the effect that the person may not meet those requirements.  Where an opinion of a MOC is required, the Tribunal must take it be correct: r.2.25A(3).

   Is the applicant free from the relevant diseases or conditions (PIC 4005(1)(a), (b), (c))?

8. The primary decision record indicates that the delegate wrote to the applicant requesting her to undertake a health examination but this was not done. Electronic records before the Tribunal indicate that the applicant had now undertaken a health examination and in April 2020 a notation of “meets” health requirement has been recorded with respect to the applicant.

9. Having regard to that information, the Tribunal finds that the applicant meets PIC 4005(1)(c).

   Conclusion

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 a Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 835 (Remaining Relative) visa:

    ·PIC 4005(1)(c) for the purposes of cl.835.223 of Schedule 2 to the Regulations.

    Kira Raif
    Senior Member