Yasto (Migration)

[2022] AATA 1390

Yasto (Migration) [2022] AATA 1390 (9 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Grace Yasto

VISA APPLICANT:  Ms Alicia Yasto

CASE NUMBER:  2100288

HOME AFFAIRS REFERENCE(S):          2010/001534 OSF2010/001534

MEMBER:Meena Sripathy

DATE:9 May 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Parent (Migrant) (Class AX) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 103 (Parent) visa:

·PIC 4005(1) for the purposes of cl 103.224 of Schedule 2 to the Regulations.

Statement made on 09 May 2022 at 4:28pm

CATCHWORDS
MIGRATION – Parent (Migrant) (Class AX) visa – Subclass 103 (Parent) – health criteria –specified medical assessment – departmental records show requirements met – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 103.224, 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 7 December 2020 to refuse to grant the visa applicant a Parent (Migrant) (Class AX) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 3 February 2010. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 103.224 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 sponsor applied for review of the decision to the Tribunal.

3. On 10 May 2021 the Tribunal invited the review applicant to request the visa applicant undergo a health examination and provide the Tribunal evidence of having done this.

4. On 10 March 2022 the review applicant informed the Tribunal the visa applicant had undertaken the health examination as requested. Information before the Tribunal obtained from Department records indicates the visa applicant met health undertakings.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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, 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. The applicant in this case had not undertaken the medical assessment by the time of the decision. 

7. Public Interest Criterion 4005(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 15/144.

8. As indicated above, on 10 March 2022 the Tribunal was informed the visa applicant had undertaken the health examination as requested. Departmental records obtained by the Tribunal on 16 March 2022 confirms that the visa applicant met health undertakings.

9. For these reasons the requirements in PIC 4005(1) are met.

   DECISION

10. The Tribunal remits the application for a Parent (Migrant) (Class AX) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 103 (Parent) visa:

    ·PIC 4005(1) for the purposes of cl 103.224 of Schedule 2 to the Regulations.

    Meena Sripathy
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    Schedule 4

    4005(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)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 (2); 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.

    (2)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.

    (3)Sub-subparagraph (1) (c) (ii) (A) does not apply if:

    (a)the applicant would not be eligible for the provision of the health care or community services; and

    (b)the ineligibility would be due to the temporary visa for which the applicant is applying being of a particular subclass; and

    (c)the subclass is not specified by the Minister in an instrument in writing made under subparagraph (2) (b) (ii).