KASHIF (Migration)

[2023] AATA 3765

KASHIF (Migration) [2023] AATA 3765 (6 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Muhammad Kashif
Mrs Rabia Hanif
Master Balaj Hussain

REPRESENTATIVE:  Mr Shamsher Kainth (MARN: 2117656)

CASE NUMBER:  2313386

HOME AFFAIRS REFERENCE(S):          BCC2023/3710860

MEMBER:Peter Katsambanis

DATE:6 November 2023

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the applicants meet 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 06 November 2023 at 2:11pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – health criteria – medical assessments – evidence provided by department that examinations completed and applicants auto-cleared – members of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 485.216, Schedule 4, criterion 4005(1)(aa)

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 22 August 2023 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 29 June 2023. The delegate refused to grant the visa on the basis that the applicants 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.

3. The applicants were represented in relation to the review.

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 applicants meet 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 applicants, in certain circumstances, to undergo medical assessments, and to be free of certain diseases or conditions that may impact on the community.

6. The applicants in this case did not arrange or undertake the medical assessments required by PIC 4005 at any time before the application was made or at any time before the delegate’s decision.

   Has the applicant undertaken a medical assessment (PIC 4005(1)(aa))?

7. Public Interest Criterion 4005(1)(aa) requires that if the applicants are in a specified class of persons, they must undertake the specified medical assessment and be assessed by a specified person unless a Medical Officer of the Commonwealth (MOC) decides otherwise. The relevant class of persons and assessments are specified in LIN 22/065.

8. The applicants are within of the class of persons specified in the relevant instrument.

9. Since the applicants applied for review of the delegate’s decision, the Department has provided evidence to the Tribunal that the applicants have attended appointments and completed their health examinations. The first named applicant was ‘auto-cleared’ on 18 September 2023, and the second named and third named applicants were ‘auto- cleared’ on 28 September 2023.

10. Accordingly, on the evidence before it, the Tribunal finds that the requirements in PIC 4005(1)(aa) are met.

11. 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

12. The Tribunal remits the application for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the applicants meet 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.

    Peter Katsambanis
    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.