Dorji (Migration)

[2024] AATA 960

Dorji (Migration) [2024] AATA 960 (24 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sonam Dorji
Mrs Dechen Tshomo
Miss Yeshi Lhamo Dorji

REPRESENTATIVE:  Mr Sandip Khanal Khanal (MARN: 1464104)

CASE NUMBER:  2405093

HOME AFFAIRS REFERENCE(S):          BCC2022/3151425

MEMBER:Wan Shum

DATE:24 April 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 visa:

·PIC 4005(1)(aa) for the purposes of cl 485.216 of Schedule 2 to the Regulations

Statement made on 24 April 2024 at 11:15am

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – health requirement – Medical Officer of the Commonwealth assessment – medical assessments provided upon review – decision under review remitted       

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 485.216; Schedule 3; Schedule 4, Public Interest Criterion 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 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s 65 of the Migration Act 1958 (Cth) (the Act). The applicants applied for the visas on 10 August 2022. The delegate refused to grant the visas on 26 February 2024.

2. The delegate refused to grant the visa on the basis that the first named applicant (the applicant) did not satisfy the requirements of public interest criteria (PIC) 4005(1)(aa)(i) of Schedule 4 to the Migration Regulations 1994 (Cth) (the Regulations) as required by cl 485.216 of Schedule 2 to the Regulations because there was no evidence that the applicant had completed the health examinations and had not provided any evidence that they had any intention to undertake the health examinations.

3. For the purposes of PIC 4005(1)(aa)(i), the relevant instrument is IMMI 15/144 compilation. The applicant is a national of Bhutan, so Schedule 2 of that instrument applies. For the purposes of PIC 4005(1)(aa), the required checks for a temporary visa are medical examination, chest x-ray, and any additional medical assessments specified in Schedule 3. Schedule 3 of that instrument applies only to certain classes of person and the information before the Tribunal does not indicate that the first named applicant is required to undertake any additional medical assessments. For the purposes of PIC 4005(1)(aa)(ii), medical assessments conducted within Australia must be conducted by Bupa Australia Health Pty Ltd, trading as Bupa Medical Visa Services, or an Approved Medical Practitioner.

4. On review the applicants provided evidence that the first and second named applicants had booked and completed their medical assessments. However, the evidence provided reflects that the first named applicant completed medical assessments for a Subclass 190 visa.

5. In response to a query as to whether the first and second named applicants had completed medical assessments for their Subclass 485 visa application, the Department has advised that the first named applicant was “auto cleared on 10 January 2024”. The Tribunal is satisfied that the medical assessment was conducted by the person specified in IMMI 15/144 compilation. On the information available, the Tribunal finds that the first named applicant has undertaken the medical assessments required.

6. In light of this, the Tribunal finds that the first named applicant satisfies PIC 4005(1)(aa) and has concluded that the matter should be remitted for reconsideration of whether the applicants satisfy the remaining visa criteria. There is information indicating that the second named applicant is or was employed as an assistant nurse, and there may be additional medical assessments which she must undertake pursuant to Schedule 3 of IMMI 15/144 compilation.

7. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicants on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

   DECISION

8. The Tribunal remits the application for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 visa:

   ·PIC 4005(1)(aa) for the purposes of cl 485.216 of Schedule 2 to the Regulations

   Wan Shum
   Member