Thapa (Migration)

[2024] AATA 1081

Thapa (Migration) [2024] AATA 1081 (2 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Bisuja Thapa

REPRESENTATIVE:  Mrs Namrata Chhetri (MARN: 1803289)

CASE NUMBER:  2402992

HOME AFFAIRS REFERENCE(S):          BCC2024/107227

MEMBER:Kira Raif

DATE:2 May 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

·PIC 4005(1)(c) for the purposes of cl 500.217 of Schedule 2 to the Regulations.

Statement made on 02 May 2024 at 12:31pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – health criteria – medical assessment provided upon review – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 500.217; Schedule 4, Public Interest Criterion 4005; r 2.25

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 13 February 2024 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of Nepal, born in October 1999. She applied for the visa on 11 January 2024. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 500.217 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4005 of Schedule 4 to the Regulations was not met. The applicant seeks review of the delegate’s decision.

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 visa applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act. 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.    In determining whether a person meets PIC 4005(1)(a), (b) or (c) reg 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: reg 2.25A(3).

Does the applicant meet the requirement of PIC 4005?

7.    The applicant provided to the Tribunal a copy of the primary decision record. It indicates that in January 2024 the delegate wrote to the applicant requesting her to undertake health examinations. It is noted that the applicant had not done so within the specified time. As a result, the delegate was not satisfied that the applicant met PIC 4005.

8.    In February 2024 the Tribunal wrote to the applicant inviting her to undertake health examinations. Electronic records before the Tribunal indicate that in March 2024 the recommendation was made that the applicant met the health requirements. Having regard to that evidence, the Tribunal is satisfied the applicant meets PIC 4005(1)(c) for the purpose of cl. 500.217.

Conclusion

9.    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

1. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

   ·PIC 4005(1)(c) for the purposes of cl 500.217 of Schedule 2 to the Regulations.

   Kira Raif
   Senior Member