Van (Migration)

[2018] AATA 4849

Van (Migration) [2018] AATA 4849 (15 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Sinoeun Van

VISA APPLICANT:  Ms Leakhena Touch

CASE NUMBER:  1817749

DIBP REFERENCE(S):  BCC2017/956131

COUNTRY OF REFERENCE:                  Cambodia

MEMBER:Margie Bourke

DATE:15 October 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:

·PIC 4001 and 4007 for the purposes of cl.300.223 of Schedule 2 to the Regulations.

Statement made on 15 October 2018 at 3:59pm

CATCHWORDS
MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – character test – police clearance certificate – health criteria – applicant from Schedule A country – medical assessment undertaken – health requirement met – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 300.223, Schedule 4 PIC4001, PIC4007

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 11 June 2018 to refuse to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 7 March 2017. The delegate refused to grant the visa as the visa applicant did not satisfy cl.300.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the character test criterion in Public Interest Criterion 4001 and the health criteria in Public Interest Criterion (‘PIC’) 4007 of Schedule 4 to the Regulations were not met.

3. The review applicant appeared before the Tribunal on 23 August 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages.

4. The review applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The first issue in this review is whether the visa applicant meets Public Interest Criterion (PIC) 4001 as required by the criteria for the grant of the Visa. Public Interest Criterion 4001 as it applies to this case requires that a person satisfies the Minister that the person passes the character test. In this case the Department requested by letter sent by email to the visa applicant dated 18 December 2017 that the visa applicant provide a police certificate from the country where she had lived for a total of 12 months or in the last 10 years is evidence that she satisfies the character test.

7. At the time of the Departments decision record which is dated 11 June 2018 the visa applicant had not provided a police clearance certificate. After the hearing invitation was issued by the tribunal and prior to the scheduled hearing, the review applicant provided the tribunal with a copy of the visa applicant’s criminal record, dated 13 August 2018. This record was issued from the criminal record affairs Department, in the Kingdom of Cambodia, Ministry of Justice, and recorded that the visa applicant does not have any imprisonment record registered as of the date of the certificate.

8. Based on the criminal record bulletin dated 13 August 2018 provided by the review applicant in relation to the visa applicant to the Tribunal, the tribunal is satisfied that the visa applicant has provided a police clearance certificate in relation to the country where she resides, and has resided for the last 10 years. The tribunal is satisfied that the visa applicant meets the requirements of Public Interest Criterion 4001.

9. The second issue in this review is whether the visa applicant meets Public Interest Criterion (PIC) 4007 as required by the criteria 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.

10. The visa applicant in this case had been requested by a letter from the Department dated 18 December 2017 and sent to the visa applicant via email, to undergo a medical assessment. In the letter dated 8 December 2017 the Department provided details of how to arrange the health examinations outside Australia, and where further information was available.

    Has the applicant undertaken a medical assessment (PIC 4007(1)(aa))?

11. 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. The relevant class of persons and assessments are specified in IMMI 13/161. Cambodia is listed in Schedule A of the instrument, and the countries listed in Schedule A are specified as the countries to which the relevant class of persons apply.  I am satisfied that the visa applicant is a citizen of Cambodia, and therefore is in the class of persons specified in the instrument.

12. Prior to the hearing there was no evidence before the tribunal that the visa applicant had undertaken the specified tests, or that a Medical Officer of the Commonwealth had decided that the medical assessment did not need to be undertaken. The information available to the tribunal included the letter to the applicant dated 18 December 2017 and sent to her by email requesting that she undertake the specified medical assessment. The tribunal has also considered the email sent from the review applicant’s representative to the Department enquiring about the application and requesting to be advised whether any further documents needed to be provided in relation to the application. The tribunal is not aware of any response to this particular enquiry by the review applicant’s representative, and no response is recorded on the Department file. The Departments decision record, a copy of which is provided to the tribunal by the review applicant is dated 11 June 2018 and records that the visa applicant has not completed the required medical examinations and had not contacted the nominated clinics to arrange appointments for the medical examinations.

13. In the invitation to the hearing the tribunal requested the review applicant to provide the tribunal with both the police clearance certificate, and evidence the visa applicant had arranged and attended the requested medical examinations. At the hearing the review applicant’s representative advised the tribunal that the visa applicant was not aware of the request to undergo the medical examinations, prior to the receipt of the Departments refusal decision record dated 11 June 2018. The review applicant’s representative provided an appointment slip for the visa applicant to undertake the medical examination on the following day, 24 August 2018.

14. In these circumstances the tribunal provided the review applicant over four weeks to provide (a) confirmation that the visa applicant had attended and undergone the specified medical examination and assessment and (b) confirmation that the medical report had been provided to the Department.

15. The review applicant’s representative advised the tribunal by email dated 10 September 2018 that the visa applicant had completed her health examinations, and that the health examination centre had advised they had sent the results to the Australian Embassy in Cambodia.

16. The Department advised the tribunal, (after several requests from the tribunal), by email dated 15 October 2018, that the visa applicant’s medical examination had been received and her status was recorded as “recommendation cleared” on 31 August 2018.

17. Based on the information provided by both the review applicant’s representative and by the Department, the tribunal is satisfied that the visa applicant has undertaken a medical assessment as required by cl.4007(1)(aa), and the assessment results have been provided to the Department. Further the tribunal is satisfied that the visa applicant is recorded as “recommendation cleared”, and therefore meets the health requirements in PIC 4007.

18. For these reasons the visa applicant meets the requirements in PIC 4007(1)(aa). There is no evidence before the tribunal that the visa applicant does not meet the other requirements in PIC 4007. The tribunal also finds the visa applicant meets the requirements of PIC 4007.

19. 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

20. The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:

    ·PIC 4001 and PIC 4007 for the purposes of cl.300.223 of Schedule 2 to the Regulations.

    Margie Bourke

    
    

    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.