Harsh Bhargav (Migration)

[2021] AATA 4454

Harsh Bhargav (Migration) [2021] AATA 4454 (19 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Harsh Bhargav

CASE NUMBER:  2012398

HOME AFFAIRS REFERENCE(S):          BCC2020/1089662

MEMBER:Andrew George

DATE:19 November 2021

PLACE OF DECISION:  Darwin

DECISION:The Tribunal remits the application for a Skilled Nominated (Permanent) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 190 - Skilled - Nominated visa:

·PIC 4005(1)(c) for the purposes of cl.190.216 of Schedule 2 to the Regulations.

Statement made on 19 November 2021 at 1:27pm

CATCHWORDS
MIGRATION – Skilled Nominated (Permanent) (Class SN) visa – Subclass 190 (Skilled – Nominated) – health criteria – further opinion of medical officer of commonwealth provided and taken to be correct – decision without hearing required – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 360(2)(a)
Migration Regulations 1994 (Cth), r 2.25A(3), Schedule 2, cl 190.216, Schedule 4, criterion 4005(1)(c)

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 on 24 July 2020 to refuse to grant the applicant a Skilled Nominated (Permanent) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 10 March 2020. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.190.216 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4005(1)(c) of Schedule 4 to the Regulations was not met based on previous opinions of a Medical Officer of the Commonwealth (‘MOC’). For reasons that follow, and out of consideration for the applicant’s privacy, it is unnecessary to detail the reasons contained in those opinions.

3. The applicant is represented by Mr Northam of Northam Lawyers. This matter was listed for hearing on 21 October 2021. Following helpful submissions from Mr Northam, filed in accordance with the practice directions on 15 October 2021, the Tribunal afforded the applicant an opportunity to seek a further opinion of a MOC. The applicant did so and the further MOC dated 18 November 2021 was provided in a Form 884. This MOC assessed that the applicant met PIC 4005. Accordingly, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant based on the material before it, pursuant to s 360(2)(a) of the Act.

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this review is whether the visa applicant meets PIC 4005(1)(c) as required by the criteria for the grant of the visa. PIC 4005(1)(c), 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

6. PIC 4005(1)(c) requires the applicant be free from a disease or condition which would be likely to require health care or community services or which would meet the medical criteria for provision of a community service during the specified period; and  provision of the health care or community services (regardless of whether it will actually be used in connection with the applicant) would be likely to: result in a significant cost to the Australian community in the areas of health care and community services; or prejudice access of an Australian citizen or permanent resident to health care or community services.

7. In determining whether a person meets PIC 4005(1)(c), r.2.25A requires the Tribunal to seek the opinion of a MOC unless: the application is for a temporary visa and there is no information known to Immigration to the effect that the person may not meet those requirements; or the application is for a permanent visa and made from a specified country and there is no information known to Immigration to the effect that the person may not meet those requirements.  Where an opinion of a MOC is required, the Tribunal must take it be correct: r.2.25A(3).

8. On the evidence before the Tribunal, a MOC opinion is required. The Tribunal has before it the MOC dated 18 November 2021, which it assesses as being valid. Based on the opinion of the MOC, the applicant satisfies PIC 4005(1)(c).

9. 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 visa.

   DECISION

10. The Tribunal remits the application for a Skilled Nominated (Permanent) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 190 -  Skilled - Nominated visa:

    ·PIC 4005(1)(c) for the purposes of cl.190.216 of Schedule 2 to the Regulations.

    Andrew George
    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.