Xiao (Migration)

[2023] AATA 2976

Xiao (Migration) [2023] AATA 2976 (5 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Yue Xiao

REPRESENTATIVE:  Ms Eileen Lin

CASE NUMBER:  2306719

HOME AFFAIRS REFERENCE(S):          CLF2018/10001

MEMBER:Meena Sripathy

DATE:5 September 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 835 visa:

·PIC 4005 for the purposes of cl 835.223 of Schedule 2 to the Regulations

Statement made on 05 September 2023 at 5:07pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) – medical assessment – department records show health requirement met – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), Schedule 2, cl 835.223, Schedule 4, criterion 4005

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 to refuse to grant the applicant a Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant applied for the visa on 2 February 2018. The delegate refused to grant the visa on 10 May 2023.

2. The delegate made the decision on the basis that evidence of a medical assessment was not provided as required to satisfy a criterion for the grant of the visa under the Migration Regulations 1994 (Cth) (the Regulations).

3. On 16 May 2023 an officer of the Tribunal wrote to the applicant to invite them to undertake the health examination. On 22 May 2023 the applicant advised the Tribunal that the applicant had an appointment to undertake the health examination on 25 May 2023.

4. On 14 June 2023 the Tribunal obtained Department records that indicates the health requirement has been met. In light of the new evidence received, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

5. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

   DECISION

6. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 835 visa:

   ·PIC 4005 for the purposes of cl 835.223 of Schedule 2 to the Regulations

   Meena Sripathy
   Member