Walker (Migration)

[2018] AATA 902

Walker (Migration) [2018] AATA 902 (19 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jonathan Walker

CASE NUMBER:  1613168

DIBP REFERENCE(S):  CLF2016/25390

MEMBER:Kira Raif

DATE:19 February 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 835 (Remaining Relative) visa:

·PIC 4005(1)(a), (b) and (c) for the purposes of cl.835.223 of Schedule 2 to the Regulations.

Statement made on 19 February 2018 at 4:18pm

CATCHWORDS
Migration – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) visa – Meets Public Interest Criteria 4005 – Met health requirements

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994 r 2.25A Schedule 2 cl 835.223 Schedule 4 Criteria 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 Immigration on 4 August 2016 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of the UK born in August 1987. The applicant applied for the visa on 20 April 2016. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.835.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4005 of Schedule 4 to the Regulations was not met. The applicant seeks review of the delegate’s decision.

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) 4005 as required by the criteria for the grant of the visa. Public Interest Criterion 4005, as it applies to this case, 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.

5. Public interest criterion 4005(1)(a) and (b) require the applicant to be free from tuberculosis and 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.

6. Public interest criterion 4005(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.

7. As the applicant in this case has applied for a permanent visa, the exclusion provision in PIC 4005(3) does not apply.

8. In determining whether a person meets PIC 4005(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 (PIC 4005(1)(a), (b), (c))?

9. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that in May 2016 the delegate wrote to the applicant requesting him to undertake health examinations but the applicant has not provided any evidence of having done so. As a result, the delegate was not satisfied the applicant met the health requirements. The Tribunal also wrote to the applicant requesting him to undertake health examinations. Electronic records before the Tribunal indicate that in February 2018 the applicant has been ‘recommended cleared’.

10. On the evidence before the Tribunal, a MOC opinion is required. As noted above, the Tribunal must take the MOC opinion as correct. Having regard to the information recoded on the Department’s electronic systems, the Tribunal finds that the applicant satisfies public interest criterion 4005(1)(a), (b) and (c).

    Conclusion

11. Given the findings above, the appropriate course is for the Tribunal to remit the matter to the Minister for reconsideration of the remaining criteria for the visa.

    DECISION

12. The Tribunal remits the application for a Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 835 (Remaining Relative) visa:

    ·PIC 4005(1)(a), (b) and (c) for the purposes of cl.835.223 of Schedule 2 to the Regulations.

    Kira Raif
    Senior Member