Akram (Migration)

[2025] ARTA 1648

AKRAM (MIGRATION) [2025] ARTA 1648 (24 JULY 2025)

DECISION AND  

REASONS FOR DECISION

Applicant:Mr Wasim Akram

Respondent:  Minister for Immigration and Citizenship

Tribunal Number:  2507521

Tribunal:General Member L Pearson

Place:Sydney

Date:  24 July 2025

Decision:The Tribunal sets aside the decision under review and remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, in accordance with the order 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 24 July 2025 at 4:15pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – health criteria – specified medical assessment – department’s records confirm requirements finalised – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Administrative Review Tribunal Act 2024 (Cth), s 106(3)
Migration Regulations 1994 (Cth), Schedule 2, cl 485.216, Schedule 4, criterion 4005(1)(aa)(i)

STATEMENT OF REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister on 10 February 2025 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 8 January 2025. 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 (Cth) (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 applicant on the basis of the material before it, pursuant to s 106(3) of the Administrative Review Tribunal Act 2024 (Cth).

   CONSIDERATION OF CLAIMS AND EVIDENCE

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, 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 required to undergo specified medical assessments.

5. As at the date of the delegate’s decision, the Department no record of the applicant completing the required health examinations nor had he provided evidence he intended to do so. Therefore, the delegate was unable to be satisfied that the applicant satisfied PIC4005(1)(aa)(i).

6. The applicant applied to the Tribunal for review of the delegate’s decision on 25 February 2025.

   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 as a person from Pakistan falls within Schedule 2 of IMMI 15/144 and is required to undergo specified medical examinations.

9. On 20 March 2025the Tribunal wrote to the applicant noting that one of the requirements for the grant of the visa is that each applicant must meet the health requirement, and invited him to have the required health checks.

10. On 10 April 2025 the applicant provided to the Tribunal confirmation that he had booked a health assessment for 2 May 2025.

11. The Department’s records confirm that the applicant finalised his health requirements on 6 May 2025.

12. Therefore the requirements in PIC 4005(1)(aa) are now met.

13. Given the findings above, the appropriate course is for the Tribunal to set aside the decision under review and remit the matter to the Minister for reconsideration of the remaining criteria for the visa.

    DECISION

14. The Tribunal sets aside the decision under review and remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, in accordance with the order 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.

    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)unless the applicant is a minor born in Australia and is ordinarily resident in Australia, 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.