1516208 (Migration)

[2016] AATA 4256

1516208 (Migration) [2016] AATA 4256 (19 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Mariam Shafa

CASE NUMBER:  1516208

DIBP REFERENCE(S):  BCC2015/2489358

MEMBER:Dione Dimitriadis

DATE:19 August 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 (Temporary Graduate) visa:

·PIC 4005(1)(aa), (ab) and (a) for the purposes of cl.485.216 of Schedule 2 to the Regulations.

Statement made on 19 August 2016 at 4:37pm

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 19 November 2015 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 27 August 2015. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.485.216 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 visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

4. The applicant was represented in relation to the review.

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 was refused the visa on the basis that she did not undertake a medical assessment.

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 Legislative Instrument IMMI 15/144. 

8. The applicant is a national of Pakistan. She applied for a Subclass 485 visa and the nominated occupation is Accountant (General).  

9. The Tribunal received information from the applicant that she was to undertake a visa medical assessment at Sonic HealthPlus Canberra Clinic on 8 December 2015.  On 15 December 2015 the Tribunal received an email from her friend and representative, Mr Syed Jamil, who stated that the applicant has completed her medical examination. 

10. The Tribunal conducted a search of the records of the Department of Immigration (the Department) on 17 August 2016 but was unable to find information about the results of medical examination undertaken by the applicant on 8 December 2015.

11. On 17 August 2016 the Tribunal wrote to the Department and requested advice as to whether the Department has the results of the medical checks undertaken by the applicant on 8 December 2015 with Sonic HealthPlus Canberra Clinic. The Tribunal also requested that the Department inform the Tribunal if Sonic HealthPlus Canberra Clinic is an approved clinic for undertaking medical examinations and chest x-rays.

12. In this case, the specified medical assessment is a medical examination, chest X-ray and any additional medical assessments specified in Column E of Schedule 3 of IMMI 15/144. 

13. The Department’s website states that the current migration medical services provider is Bupa Medical Visa Services. Based on information on Bupa’s website and information in the Department’s email of 17 August 2016, the Tribunal is satisfied that Sonic HealthPlus Canberra Clinic is an approved clinic for conducting medical assessments for visas.  

14. The Tribunal received an email from the Department dated 17 August 2016 stating that the applicant’s health case was finalised as ‘Recommended cleared” on 10 December 2015. On 19 August 2016 the Tribunal received a further email from the Department stating that no significant medical condition was identified at the time of the chest X-ray undertaken by the applicant on 8 December 2015.

15. The Tribunal is satisfied that no other medical examination is required as the applicant is not aged 75 years or older, there is no evidence that she is pregnant, there is no evidence that she is likely to enter a classroom situation for more than 3 months and there is no evidence that she is likely to work as (or study to be) a doctor, dentist, nurse or paramedic.

16. The Tribunal is satisfied that the applicant meets the requirements in PIC 4005(1)(aa). The applicant has undertaken all medical assessments required of her and has been found on the basis of her chest X-ray to be free of tuberculosis.  She meets the requirements of PIC 4005(1)(ab) and (a) on this basis.

17. 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

18. The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 (Temporary Graduate) visa:

    ·PIC 4005(1)(aa), (ab) and (a) for the purposes of cl.485.216 of Schedule 2 to the Regulations.

    Dione Dimitriadis
    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)If:

    (a)the applicant applies for a temporary visa; and

    (b)the subclass being applied for is not specified by the Minister in an instrument in writing made for subparagraph (2) (b) (ii);

    the reference in sub-subparagraph (1) (c) (ii) (A) to health care and community services does not include the health care and community services specified by the Minister in an instrument in writing made for this subclause.