Ghimire (Migration)

[2022] AATA 4264

Ghimire (Migration) [2022] AATA 4264 (18 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Anjali Ghimire
Mr Dhurba Subedi

REPRESENTATIVE:  Mr Swadesh Jaiswal (MARN: 1575428)

CASE NUMBER:  2204592

HOME AFFAIRS REFERENCE(S):          BCC2021/1549079

MEMBER:Nicole Burns

DATE:18 October 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 (Temporary Graduate) visa:

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

Statement made on 18 October 2022 at 12:55pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – applicant was ‘auto cleared’ for the ‘finalised health requirement’ – applicants the health requirements – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 485. 216, Schedule 4, Public Interest Criterion (‘PIC’) 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 Home Affairs on 25 March 2022 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 9 August 2021. The delegate refused to grant the visa on the basis that the first named applicant (now referred to as 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. The other applicant was refused on the basis that they did not satisfy cl 485.311.

3. According to the delegate’s decision record (a copy of which was provided to the Tribunal on review), the delegate found that, within the requested timeframe, the applicant had not provided evidence that she had undertaken required medical examinations through an approved medical services provider.

4. For the reasons that follow the Tribunal has found in favour of the applicant based on the material before it, and therefore a hearing was not necessary, pursuant to s.360(2)(a) of the Act.

5. According to information on the Department’s Integrated Client Services Environment (ICSE) records, the applicant was ‘auto cleared’ for the ‘finalised health requirement’ on 26 June 2022. Based on this evidence, the Tribunal is satisfied that the applicant meets PIC 4005(1).

6. 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 grant of a Subclass 485 visa for all applicants.

   decision

7. The Tribunal remits the application for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 (Temporary Graduate) visa:

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

   Nicole Burns
   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.