Diaz Torres (Migration)

The Administrative Appeals Tribunal considered an application for a Student (Temporary) (Class TU) visa, Subclass 500, made by the applicant. The dispute centred on whether the applicant had satisfied Public Interest Criterion (PIC) 4005, specifically the requirement to undertake a specified medical assessment. The delegate had refused to grant the visa on the basis that the Department had no record of the required health examinations being completed.

The primary legal issue before the Tribunal was whether the applicant had undertaken the medical assessment as required by PIC 4005(1)(aa)(i). This criterion mandates that applicants in certain classes must undergo specified medical assessments unless a Medical Officer of the Commonwealth decides otherwise. The Tribunal also considered the relevant legislative instrument, IMMI 15/144, which outlines the specific medical assessments required, and its subsequent amendments.

The Tribunal reasoned that the applicable version of IMMI 15/144 was that in effect at the time the visa application was made, on 26 February 2021, as there was no express provision for retrospective application of later amendments. The Tribunal noted that the applicant, being a citizen of Colombia (a country not listed in Schedule 1 of IMMI 15/144), was required by Schedule 2 to undergo a medical examination, chest x-ray, and any additional assessments specified. The Tribunal concluded that the applicant had, in fact, undertaken the required medical examinations and was "Auto Cleared," thereby satisfying PIC 4005(1)(aa)(i).

Consequently, the Tribunal remitted the matter to the Department for reconsideration with a direction that the applicant satisfies PIC 4005(1)(aa)(i). Upon remittal, the Department is to assess whether the applicant meets the remaining criteria for the grant of the Subclass 500 visa.