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[2021] AATA 3943
appellant. The Tribunal remitted the applications for reconsideration, with the direction that the first named applicant meets PIC 4005(1) for the purposes of cl.500.217 of Schedule 2 to the Regulations
The Administrative Appeals Tribunal overturned a decision to refuse student visas to a family of seven because new evidence showed they had completed their required medical examinations after the original refusal. The original refusal was based on the primary applicant not providing evidence of medical checks. After the review was lodged, the family's representative provided receipts showing medical appointments in May 2021, and the Department's records later confirmed the health requirements were completed. The Tribunal found the primary applicant now met the health criteria, but because other visa criteria still needed to be checked, it sent the case back to the Department for reconsideration rather than granting the visas itself. The Tribunal also noted that whether the spouse and children qualified as family members would depend on whether the primary applicant met the remaining requirements.
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Abecendario (Migration) [2021] AATA 3943 (8 October 2021)
DECISION: The Tribunal remits the applications for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 visa:
MIGRATION - Student (Temporary) (Class TU) visa - Subclass 500 (Student) - health criteria - medical assessments provided to tribunal - decision under review remitted
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), Schedule 2, cl 500.217, Schedule 4, criterion 4005(1)(aa)
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 applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act). The applicants applied for the visas on 18 April 2019. The delegate refused to grant the visas on 29 August 2019.
2. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.500.217 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.
3. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicants on the basis of the material before it, pursuant to s.360(2)(a) of the Act.
4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
5. In order to satisfy criteria for a Student (Temporary) (Class TU) visa, namely c.500.217, an applicant must, if required, demonstrate that they meet a range of Public Interest Criterion (PIC).
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 failed to provide the Department with evidence that they had undergone a required medical and x-ray examination.
Have the applicants undertaken a medical assessment (PIC 4005(1)(aa))?
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.
8. On 26 May 2021, the applicant's authorised representative provided the Tribunal with Tax invoice and payment receipts regarding Bupa Medical Visa Services appointments for the required medical and x-ray examination undertaken on 31 May 2021: by Owen Payas Abecendario, Arwen Blanza Abecendario, Olwen II Blanza Abecendario, Olivier Blanza Abecendario, Vincent Kyle Blanza Abecendario, Abegail Blanza Abecendario, Orren Blanza Abecendario.
9. A review of Department records show that the applicants' health requirements were confirmed as finalised between 26 May 2021 and 18 August 2021.
10. In light of the new evidence received, the Tribunal is satisfied that in relation to the first named applicant, the requirements in PIC 4005(1)(aa) are met.
11. 'Member of a family unit' is relevantly defined at r. 1.12, which provides:
(1) For the definition of member of the family unit in subsection 5(1) of the Act, and subject to
subregulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this subregulation called the family head) if the person is:
(a) a spouse or de facto partner of the family head; or
(b) a dependent child of the family head or of a spouse or de facto partner of the family head; or
(c) a dependent child of a dependent child of the family head or of a spouse or de facto partner of the family head; or
(e) a relative of the family head or of a spouse or de facto partner of the family head who:
(i) does not have a spouse or de facto partner; and
(ii) is usually resident in the family head's household; and
12. The Tribunal accepts that the second named visa applicant is the spouse of the primary applicant, the remaining secondary applicants are their children.
13. The Tribunal has found the applicant satisfies PIC 4005(1). The Tribunal notes that an assessment by the Department as to whether the secondary applicants satisfy cl 500.311 in Schedule 2 to the Regulations would flow from the outcome of their findings in relation to whether the applicant satisfies other required Public Interest Criteria in order for him to satisfy cl 500.217.
14. 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.
15. The Tribunal remits the application for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 visa:
The Tribunal remitted the applications for reconsideration, with the direction that the first named applicant meets PIC 4005(1) for the purposes of cl.500.217 of Schedule 2 to the Regulations