Kalsi (Migration)

[2024] AATA 2808

Kalsi (Migration) [2024] AATA 2808 (11 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ishnoor Kalsi

REPRESENTATIVE:  Mr Parvinder Singh (MARN: 1683425)

CASE NUMBER:  2417032

HOME AFFAIRS REFERENCE(S):          BCC2024/2448437

MEMBER:Wan Shum

DATE:11 July 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 11 July 2024 at 2:10pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – subsequent entrant – health criteria – medical examination undertaken – auto cleared – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 485.313; Schedule 4, 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 on 7 June 2024 to refuse to grant a Skilled (Provisional) (Class VC) visa to the applicant under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant had applied for the visa on 23 April 2024 as a subsequent entrant in connection with an earlier application made by his spouse for the same subclass of visa. The criteria for a Skilled (Provisional) (Class VC) visa are set out in Part 485 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) and include certain public interest criteria.

3. One of the public interest criteria (PIC) which must be met is PIC 4005 of Schedule 4 to the the Regulations which relevantly requires the applicant to undertake specified medical examinations. As there was no evidence that the applicant had completed the required health examinations or had any intention to undertake the health examinations, the delegate was unable to be satisfied that the applicant satisfied PIC 4005(1)(aa)(i) and found that the requirements of cl 485.216 had not been met. However, the relevant criterion is cl 485.313 for an applicant claiming to be the spouse of a person who is satisfying the primary criteria.

4. For the purposes of PIC 4005(1)(aa), the relevant instrument is IMMI 15/144 compilation no. 2. The applicant is a national of India, 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 over 15 years of age is a medical examination, serum creatinine/eGFR, chest x-ray, HIV test, 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.

5. On review, the applicant provided evidence that they had booked and paid to have a visa medical appointment at BUPA in Melbourne which was later changed to 16 June 2024.

6. According to the Department’s records, the applicant has now “Finalised Health Requirement” with the outcome recorded on 5 July 2024 as “auto cleared”. 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.

7. Given this, the Tribunal finds that the applicant satisfies PIC 4005(1)(aa) as required by cl 485.313(1) and has concluded that the matter should be remitted for reconsideration.

   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