Ali (Migration)

This matter concerned an application for a Skilled (Provisional) (Class VC) visa, subclass 485 (Temporary Graduate) visa, made by the first applicant, Ali, and a secondary applicant. The core of the dispute revolved around whether the first applicant had satisfied the health requirement under Public Interest Criterion (PIC) 4005(1)(aa)(i) of the Migration Regulations 1994. The Administrative Appeals Tribunal (AAT) considered the applicant's compliance with the requirement to undergo specified medical assessments.

The legal issue before the Tribunal was whether the applicant had undertaken the medical assessment as mandated by PIC 4005(1)(aa)(i). This criterion requires certain applicants to undergo specified medical assessments unless a Medical Officer of the Commonwealth determines otherwise. The Tribunal also considered the impact of amendments to the relevant legislative instrument, IMMI 15/144, on the applicable health requirements at the time of the visa application.

The Tribunal reasoned that the applicable version of IMMI 15/144 was that in effect when the visa application was made on 29 August 2021, as there was no express provision for retrospective application of subsequent amendments. At that time, for a temporary visa applicant aged 11 years or older who was a citizen of a country not listed in Schedule 1 (such as India), Schedule 2 of IMMI 15/144 required a medical examination, chest x-ray, and any additional assessments specified in Column E. The Tribunal concluded that the first applicant had satisfied PIC 4005(1)(aa)(i).

Consequently, the Tribunal remitted the application for reconsideration by the Department. The direction was that the first applicant met the health criterion, and the Department was to proceed to assess the remaining criteria for the grant of the subclass 485 visa to the first applicant and the secondary criteria for the secondary applicant.