Vo (Migration)

[2022] AATA 1857

Vo (Migration) [2022] AATA 1857 (31 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ngoc Gia Vo

CASE NUMBER:  2203335

HOME AFFAIRS REFERENCE(S):          BCC2021/2230353

MEMBER:Rosa Gagliardi

DATE:31 May 2022

PLACE OF DECISION:  Australian Capital Territory

DECISION:The Tribunal remits the application with the direction that the applicant meets PIC 4005(1) for the purposes of subclause 600.213(1).

Statement made on 31 May 2022 at 3:46pm

CATCHWORDS
MIGRATION – Visitor (Class TU) visa – Subclass 600 (Visitor) – health requirements – information showing requirements finalised and applicant auto-cleared – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.213(1), Schedule 4, criterion 4005(1)

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 18 February 2022 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 22 November 2021. The delegate refused to grant the visa on the basis that the applicant did not meet the health requirements.

3. Since the time of primary decision, the Tribunal has sighted additional information which would permit it to go to decision without holding a hearing.

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 applicant is required to satisfy subclause 600.213 (1) of the Migration Regulations 1994, which reads:

   The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4011, 4013,
   4014, 4020 and 4021.

7. Specifically, public interest criterion (PIC) 4005(1) requires that:
   
   

   (1) The applicant:
   (aa) if the applicant is in a class of persons specified by the Minister in an 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) is free from
   a disease or condition in relation to which:
   (iii) a person who has it would be likely to:
   (D) require health care or community services; or
   (E) meet the medical criteria for the provision of a community service; during the period
   described in subclause (2); and
   (vi) the provision of the health care or community services would be likely to:
   (G) result in a significant cost to the Australian community in the areas of health care and
   community services; or
   (H) 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.

8. The applicant has applied for a Visitor Visa and is in a class of persons specified by the Minister in an instrument in writing who must undertake any medical assessment to meet Public Interest Criterion 4005(1).

9. The Department wrote to the applicant on 15 December 2021 and 17 January 2022 to advise that he was required to undertake medical examinations for the purposes of meeting the requirements for grant of the Visitor visa. The applicant did not respond to the Department within the relevant timeframes.

10. At the time of review the Tribunal now has the benefit of information indicating that the health requirements had been finalised and that the applicant had been “auto-cleared” on 3 May 2022. The appropriate course is, therefore, to remit the application to enable the Department to assess whether the applicant meets the remaining criteria, if any.

    DECISION

11. The Tribunal remits the application with the direction the applicant meets PIC 4005(1) for the purposes of subclause 600.213(1).

    Rosa Gagliardi
    Member