Baral (Migration)

[2024] AATA 1472

Baral (Migration) [2024] AATA 1472 (16 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hari Prasad Baral

REPRESENTATIVE:  Mr Yashna Udas (MARN: 2318066)

CASE NUMBER:  2401831

HOME AFFAIRS REFERENCE(S):          BCC2023/6783722

MEMBER:De-Anne Kelly

DATE:16 April 2024

PLACE OF DECISION:  Brisbane

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 visa:

·cl 485.216 of Schedule 2 to the Regulations.

Statement made on 16 April 2024 at 3:46pm

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

LEGISLATION
Migration Act 1958 (Cth), s 65
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 for review of a decision made by a delegate of the Minister for Home Affairs on 30 January 2024 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 November 2023. Visa Class VC contains Subclass 485. (For visa applications made before 1 July 2013, there is also a Subclass 487, however that subclass is not relevant to the present matter.) The criteria for the grant of a Subclass 485 visa are set out in Part 485 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa because the applicant did not satisfy cl 485.216 of Schedule 2 to the Regulations because the applicant had not satisfied PIC 4005 as they had failed to undertake a medical assessment as required.

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 the present case is whether the applicant satisfies cl 485.216.

   485.216
   (1) The applicant satisfies public interest criteria 4001, 4002, 4003, 4003B, 4004, 4005, 4010, 4020 and 4021.

   PIC 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.

7. Departmental records show that the applicant finalised his health requirements on 19 March 2024.

8. The Tribunal finds that the applicant satisfies cl 485.216.

9. Given the findings above, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria.

   DECISION

10. 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 visa:

    ·cl 485.216 of Schedule 2 to the Regulations.

    De-Anne Kelly
    Member