Andal (Migration)

[2022] AATA 5106

Andal (Migration) [2022] AATA 5106 (8 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Mary Rhose Villanueva Andal

REPRESENTATIVE:  Mrs Navneet Kaur (MARN: 1801703)

CASE NUMBER:  2210830

HOME AFFAIRS REFERENCE(S):          BCC2021/2493933

MEMBER:Alan McMurran

DATE:8 December 2022

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

Statement made on 08 December 2022 at 3:27pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – health criteria – IMMI15/144 – medical assessment undertaken – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 485.216; Schedule 4, PIC 4005

statement of decision and reasons

application for review

1. This is an application lodged on 27 July 2022 for review of a decision made by a delegate of the Minister for Home Affairs on 8 July 2022 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 23 December 2021. 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. On the information now available to the Tribunal, the Tribunal finds in accordance with section 360(2)(a) of the Act that it is able to decide the review in the applicant’s favour on the basis of the material now before it and without a hearing.

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.

7. The applicant in this case did not provide the Department a record of a completed health examination with the application. The Department, despite a request, did not receive evidence of the applicant’s completed health record by the time of its decision.

   Has the applicant undertaken a medical assessment (PIC 4005(1)(aa))?

8. 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 IMMI15/144.

9. The applicant is specified in the relevant instrument as being in a class of persons who are required to undertake medical assessment. On the available information, the Tribunal finds that the applicant is not exempt from medical assessment by a MOC.

10. The available information discloses that the applicant completed a medical examination to meet the health requirement. The Tribunal finds that a medical assessment was completed by the applicant on 1 October 2022 and confirmed according to the Department records as ‘auto cleared’ on that date, being the effective date for the recorded health clearance.

11. The Tribunal finds accordingly that the applicant has undertaken the specified test by the authorised MOC.

12. On 17 October 2022, the Tribunal received from the applicant her response in relation to the questionnaire provided by the Tribunal on 12 October 2022, concerning additional medical assessments, which may be required for applicants intending to work, study or train in particular health care settings. The Tribunal has noted the applicant’s response, and the Tribunal finds that she is not a person required to undergo the additional medical assessments.

13. 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

14. 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.

    Alan McMurran
    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.