Zhou (Migration)

[2020] AATA 5600

Zhou (Migration) [2020] AATA 5600 (18 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Linda Zhou

CASE NUMBER:  2003488

DIBP REFERENCE(S):  BCC2018/4020996

COUNTRY OF REFERENCE:                   United States of America

MEMBER:Kira Raif

DATE:18 November 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 (Spouse) visa:

·PIC 4007(1)(c) for the purposes of cl.820.223 of Schedule 2 to the Regulations.

Statement made on 18 November 2020 at 3:24pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – health requirements – Medical Officer of the Commonwealth opinion – decision under review remitted    

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 820.223; Schedule 4, Public Interest Criterion 4007; 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 Immigration on 20 February 2020 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 30 June 2018. The delegate refused to grant the visa as the applicant did not satisfy cl.820.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4007 of Schedule 4 to the Regulations was not met.

3. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it. 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) 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. 

5. Clause 4007(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.

6. In determining whether a person meets PIC 4007(1)(a), (b) or (c), r.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: r.2.25A(3)

   Is the applicant free from the relevant diseases or conditions?

7. The primary decision record indicates that the delegate requested the applicant to undertake health checks but the applicant had not done that.

8. In March 2020 the Tribunal wrote to the applicant inviting her to undertake a health examination. The applicant provided evidence to the Tribunal evidence of having done so. Electronic records before the Tribunal indicates that a notation of “recommend cleared” was recorded with respect to the applicant in July 2020. Having regard to that information, the Tribunal finds that the applicant meets PIC 4007(1)(c).

   Conclusion

9. 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

10. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 (Spouse) visa:

    ·PIC 4007(1)(c) for the purposes of cl.820.223 of Schedule 2 to the Regulations.

    Kira Raif

    
    

    Senior Member