1829916 (Migration)

[2019] AATA 423

1829916 (Migration) [2019] AATA 423 (23 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1829916

MEMBER:Stavros Georgiadis

DATE:23 January 2019

PLACE OF DECISION:  Adelaide

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) for the purposes of cl.485.216 of Schedule 2 to the Regulations.

.

Statement made on 23 January 2019 at 4:50pm

CATCHWORDS

MIGRATION – Skilled (Provisional)(Class VC) – Subclass 485 (Temporary graduate) – health criteria – health records provided – no health concerns – remitted for reconsideration

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2 cl 485.216 Schedule 4 PIC 4005

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 2 October 2018 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 31 July 2018. 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. The applicant was represented in relation to the review by his registered migration agent.

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

   consideration of Claims and evidence

5. 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.

6. As at 2 October 2018 the Department had no record of the applicant completing any required health assessment (or any intention to attend one).  Therefore, the delegate was not satisfied that the applicant in this case was able to satisfy the requirement in PIC 4005 for the grant of the visa: [cl.485.216].

   Has the applicant 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. The relevant class of persons and assessments are specified in IMMI 15/144.

8. The applicant is a Chinese national who was granted a subclass 573 (Higher Education Sector) student visa on 15 March 2016 valid until 15 March 2018.  On 18 August 2017 the applicant’s subclass 573 (Higher Education Sector) student visa was extended to 30 August 2018.

9. On 31 July 2018 the applicant applied for a Temporary Graduate (Post-Study Work) (subclass 485) visa in Australia.

10. On 30 August 2018 the delegate required the applicant to provide additional information for consideration within 28 days, including a health assessment in respect of the applicant.

11. On 2 October 2018, the delegate refused to grant the visa on the basis that [the applicant] did not satisfy cl.485.216 of Schedule 2 to the Regulations because the health criterion in PIC 4005 of Schedule 4 to the Regulations was not met.

12. [The applicant] was notified of the decision by letter dated 2 October 2018.

13. The applicant provided the following written submission under cover letter of 14 January 2019 and the Tribunal proceeded to determine the matter on the papers.  

    1.   “ ... The issue in this review is whether [the applicant]meets PIC 4005 as required by cl.485.216 of Part 485 of Schedule 2 to the Regulations for the grant of the visa. PIC 4005 requires the applicant, in certain circumstances, to undergo a medical assessment and to be free of certain diseases or conditions that may impact on the community. [The applicant]’s application for a Subclass 485 visa was refused on the basis that he did not undertake a medical assessment as required by PIC 4005(1)(aa)(i) of Schedule 4 to the Regulations.

    2.   PIC 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 Required Medical Assessment dated 19 November 2015.

    3.   [The applicant] is a national of Chinese, a country not listed in Column A of Schedule 1 to IMMI 15/144. He applied for a Subclass 485 visa, that is, he is intending a temporary stay in Australia of 6 months or more. Therefore, the medical assessments undertaken by [the applicant] meet the requirements in Columns C and E of Schedule 2 to IMMI 15/144. Medical assessments conducted within Australia must be conducted by Bupa Australia Health Pty Ltd T/A Bupa Medical Visa Services, or an Approved Medical Practitioner: cl.3(a) of IMMI 15/144.

    4.   [The applicant] provided evidence that he attended Bupa Medical Visa Services in Adelaide on 18 August 2017. The receipt (attachment 4) indicated that [the applicant] underwent a medical examination and chest x-ray. The IMMI account online records showed that [the applicant]’s requirement for a health assessment was finalised as ‘Health clearance provided-no action required’ on 18 August 2017, which means that the “applicant has met the health requirement and the visa can be granted if all other visa criteria are met”. Therefore, [the applicant] was granted a student visa (subclass 573) on 18 August 2017.

    5.   [The applicant] also provided evidence that he attended Bupa Medical Visa Services in Adelaide on 19 October 2018. The evidence (attachment 5, 6, 7) indicated that [the applicant] underwent a medical examination and chest x-ray.

    6.   On 19 Nov 2018, we received a letter from the AAT, and they consider that a medical opinion from a Medical Officer of the Commonwealth should be obtained. However, we got confirmation on 23 Nov 2018 that an AAT officer has contacted the department who have confirmed [the applicant] has completed the health assessment. Moreover, on 28 Nov 2018, we contacted the AAT again, and a Senior Tribunal Officer confirmed that they confirmed this with the department, so [the applicant] [does] not need to do one.

    7.   Although on My Health Declarations (RNF:[number deleted], attachment 8) showed that an error has occurred, [the applicant] contacted the Bupa Medical Visa Services Adelaide on 9 Jan 2019 and they told him that his health assessment result has already [been] sent to the department and there is no more action required.

    8.   There is no additional medical assessment specified in Column E of Schedule 2 to IMMI 15/144 is required on the basis that [the applicant] is not: intending to work as (or study to be) a doctor, dentist, nurse or paramedic; likely to work (or be a trainee) in a childcare centre; aged 75 years or older; and, nor is he is female so he will not fall pregnant. Therefore we believe that [the applicant] satisfies PIC 4005(1)(aa).

    9.   According to the IMMI Request Checklist and Details (attachment 2) issued on 30 August 2018, there is no evidence [that] indicates that [the applicant] has been requested by a MOC to undertake a medical assessment or to indicate that he has failed to comply with any such request. Therefore, [the applicant] meets the requirements of PIC 4005(1)(ab).

    10.     [The applicant]’s Subclass 485 application is for a temporary visa. The evidence indicates that there is no information known to Immigration to the effect that [the applicant] may not meet PIC 4005(1)(a), (b) or (c).

    11.     There is no evidence [that] shows that a MOC has requested [the applicant] to provide a signed undertaking to present himself to a health authority in his resident State of South Australia for the purposes of PIC 4005(1)(d). In the circumstances, PIC 4005(1)(d) does not apply in this case.

    12.     Having regard to the above, we believe that [the applicant] meets all of the relevant requirements of PIC 4005(1) and therefore meets PIC 4005. ...”

14. On 16 January 2019 the Tribunal received further information set out below, after making additional enquiries from the Department:

    ... “It is our understanding that an 884 MOC Opinion is only generated where a client receives a Does Not Meet (DNM), a Deferred or a ‘Meets’ following satisfactory investigation etc.

    These terms below mean there were no significant health findings and the client met the health requirement (these are system generated).

    This is evidenced in ICSE as:
    

15. The Tribunal accepts the written submissions and evidence before it that the applicant is a Chinese national and that China is a country not listed in Column A of Schedule 1 to IMMI 15/144. In the present case the applicant has applied for a Subclass 485 visa for a temporary stay in Australia of 6 months or more. Therefore, the medical assessments undertaken for [the applicant] by (MOC) Bupa Medical Visa Services in Adelaide on 18 August 2017 and 19 October 2018, including a medical examination and chest x-ray, meet the requirements set out in Columns C of Schedule 2 to IMMI 15/144 - for the purposes of PIC 4005(1)(aa).

16. Further, the Tribunal accepts that there is no additional medical assessment specified in Column E of Schedule 2 to IMMI 15/144 required, on the basis that [the applicant] is not: intending to work as (or study to be) a doctor, dentist, nurse or paramedic; likely to work (or be a trainee) in a childcare centre; aged 75 years or older; and, nor is he is female so he will not fall pregnant - for the purposes of PIC 4005(1)(aa).

17. Having regard to the relevant class of persons and assessments specified in IMMI 15/144 and having considered the evidence before it discussed, the Tribunal finds the applicant is:

    a)in the class of persons specified in the instrument; and

    b)from the Department’s ICSE records above, has undertaken the specified tests or the MOC has decided otherwise.

18. For the above reasons, the requirements in PIC 4005(1)(aa) are met.

19. 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

20. 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) for the purposes of cl.485.216 of Schedule 2 to the Regulations.

    Stavros Georgiadis
    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.