Illawathura (Migration)

[2024] AATA 2242

Illawathura (Migration) [2024] AATA 2242 (19 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Master Swen Illawathura

REPRESENTATIVE:  Mr Samson Brian Pereira (MARN: 9896560)

CASE NUMBER:  2414046

HOME AFFAIRS REFERENCE(S):          BCC2021/367616

MEMBER:Wan Shum

DATE:19 June 2024

PLACE OF DECISION:  Sydney

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

·

PIC 4005(1)(aa) for the purposes of

cl 485.313 of Schedule 2 to the Regulations

Statement made on 19 June 2024 at 3:20pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – applicant was ‘auto cleared’ for the ‘finalised health requirement’ – applicant met the health requirements – meets the requirements of Public Interest Criterion 4005 – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 485.313, Schedule 4, Public Interest Criterion (‘PIC’) 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 a Skilled (Provisional) (Class VC) visa to the applicant under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant’s parent, the primary applicant, had applied for the visa on 11 March 2021. On 22 July 2022, the primary applicant requested that the applicant be added to their application. The delegate refused to grant the visa on 20 May 2024.

2. The delegate made the decision finding that 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 485.313 of Schedule 2 to the Regulations because there was no evidence that the applicant had completed the required health examinations and they had not provided any evidence that they had any intention to undertake the health examinations.

3. For the purposes of PIC 4005(1)(aa), the relevant instrument is IMMI 15/144 compilation no. 2. The applicant is a national of Sri Lanka, so Schedule 2 of that instrument applies. For the purposes of PIC 4005(1)(aa)(i), the required checks for a provisional visa for visa applicants under 2 years of age is a medical examination 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 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 applicant provided evidence that they had booked and paid to have a medical examination carried out.

5. According to the Department’s records, the applicant has now “Finalised Health Requirement” with the outcome recorded on 31 May 2024 as “Meets”. The Tribunal is satisfied that the medical assessment was conducted by the person specified. On the information available, the Tribunal finds that the applicant has undertaken the medical examination as required.

6. In light of this, the Tribunal finds that the applicant satisfies PIC 4005(1)(aa) and has concluded that the matter should be remitted for reconsideration of the remaining visa criteria.

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 applicant 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 applicant meets the following criteria for a Subclass 485 visa:

   ·PIC 4005(1)(aa) for the purposes of cl 485.313 of Schedule 2 to the Regulations

   Wan Shum
   Member