Chitsa (Migration)

[2019] AATA 5487

Chitsa (Migration) [2019] AATA 5487 (3 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Brian Pasichigare Chitsa
Miss Tapiwa Sophia Chitsa
Miss Tawanna Elleanor Chitsa
Miss Wanita Zvikomborero Choto
Ms Violet Rudo Choto

CASE NUMBER:  1923558

DIBP REFERENCE(S):  BCC2018/5392951

MEMBER:Karen Synon

DATE:3 December 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for Employer Nomination (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 - Employer Nomination Scheme visa:

·PIC 4005 for the purposes of cl.186.235 of Schedule 2 to the Regulations.

Statement made on 03 December 2019 at 11:19am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Public Interest Criterion 4005 – health criteria – opinion of Review Medical Officer of Commonwealth – decision under review remitted

LEGISLATION

Migration Act 1959 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 186.235, Schedule 4, criterion 4005

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 6 August 2019 to refuse to grant the applicants Employer Nomination (Permanent) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 1 December 2018. The delegate refused to grant the visa on the basis that the first named applicant (‘the applicant’) did not satisfy cl.186.235 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 applicants were represented in relation to the review by their registered migration agent.

4. On 3 December 2019 the Tribunal received an Opinion of a Review Medical Officer of the Commonwealth.

5. The Opinion, dated 3 December 2019, states “the applicant has been assessed against Public Interest Criterion (PIC) 4005 and meets the health requirement for a permanent stay in Australia”.

6. In light of the new evidence received, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for consideration.

   DECISION

7. The Tribunal remits the application for  Employer Nomination (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 - Employer Nomination Scheme visa:

   ·PIC 4005 for the purposes of cl.186.235 of Schedule 2 to the Regulations.

   Karen Synon
   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.