Gurpreet Kaur (Migration) - [2025] ARTA 1335

GURPREET KAUR (MIGRATION) [2025] ARTA 1335 (1 JULY 2025)
DECISION AND
REASONS FOR DECISION
Applicants:Ms Gurpreet Kaur
Mr Devendra Singh
Miss Suvneet Kaur
Master Zaibjeet Singh
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2502955

Tribunal: General MemberJ Murphy
Place:Melbourne
Date: 1 July 2025

Decision:The Tribunal sets aside the decision under review and remits the application for Skilled (Provisional) (Class VC) visas for reconsideration, in accordance with the order that the first named applicant meets the following criteria for a Subclass 485 (Temporary Graduate) visa:
·PIC 4005(1)(aa) for the purposes of cl 485.216 of Schedule 2 to the Regulations.

Statement made on 01 July 2025 at 12:48pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) –health criteria – specified medical assessment – departmental records show assessment successfully cleared – decision made without hearing necessary – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Administrative Review Tribunal Act 2024 (Cth), s 106(3)(a), (b)(ii), (c)
Migration Regulations 1994 (Cth), Schedule 2, cl 485.216, Schedule 4, criterion 4005(1)(aa)
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of decisions made by a delegate of the Minister on 6 January 2025 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 13 September 2024. 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 applicants were represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review is set aside and the matters be remitted for reconsideration.
CAN A DECISION BE MADE WITHOUT A HEARING?
Section 106 of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act) sets out the circumstances where the Tribunal may reach a decision without a hearing.
To proceed without a hearing, the Tribunal must be satisfied that s 106(3) of the ART Act has been met.
Paragraphs 106(3)(a) and (b) of the ART Act sets out that the Tribunal may make a decision without holding a hearing in circumstances where the only parties to the hearing are the applicant and a non-participating party; and the decision is wholly in favour or the applicant or the applicant requests the Tribunal to make its decision without holding the hearing.
In this case, the Tribunal is satisfied that both paragraphs 106(3)(a) and 106(3)(b)(ii) have been met, as the only parties to the proceeding are the applicant and a non-participating party; and the decision is wholly in favour or the applicant.
Paragraph 106(3)(c) of the ART Act states that the Tribunal can only exercise its powers in circumstances where the issues can be adequately determined in the parties’ absence. The Explanatory Memorandum clarifies that the Tribunal cannot exercise these powers if there are issues it considers cannot be resolved without seeking further evidence or submissions from the parties. In this circumstance, the Tribunal considers this to be a single-issue, straight forward matter of whether the applicant has provided the required evidence or not.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the visa applicant meets Public Interest Criterion (PIC) 4005 as required by the criteria for the grant of the visa. Public Interest Criterion 4005, as it applies to this case, is extracted in the attachment to this decision. It requires the applicant, in certain circumstances, to undergo medical assessment, and to be free of certain diseases or conditions that may impact on the community.
Has the applicant undertaken a medical assessment (PIC 4005(1)(aa))?
Public Interest Criterion 4005(1)(aa) requires that if the applicant is in a specified class of persons, he or she must undertake the specified medical assessment and be assessed by a specified person unless a Medical Officer of the Commonwealth (MOC) decides otherwise.
The Tribunal is satisfied that the applicants are in a specified class of persons and must undertake the specified medical assessment as set out in the relevant instrument.
A check of Departmental records shows that the applicants successfully cleared a medical assessment on 12 February 2025.
For these reasons the requirements in PIC 4005(1)(aa) are met.
Given the findings above, the appropriate course is for the Tribunal to set aside the decision under review and remit the matters to the Minister for reconsideration of the remaining criteria for the visa.
DECISION
The Tribunal sets aside the decision under review and remits the application for Skilled (Provisional) (Class VC) visas for reconsideration, in accordance with the order that the first named applicant meets the following criteria for a Subclass 485 (Temporary Graduate) visa:
·PIC 4005(1)(aa) for the purposes of cl 485.216 of Schedule 2 to the Regulations.
Date(s) of hearing:  N/A
Representative for the Applicant:           Ms Ila Gandhi (MARN: 1688115)
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)unless the applicant is a minor born in Australia and is ordinarily resident in Australia, 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.