Katyal (Migration)

[2024] AATA 2335

Katyal (Migration) [2024] AATA 2335 (28 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Varun Katyal
Ms Priyanka Katyal

REPRESENTATIVE:  Mr Pawan Kumar Bhambi (MARN: 0801321)

CASE NUMBER:  2102460

HOME AFFAIRS REFERENCE(S):                  BCC2018/5398544

MEMBER:Ian Berry

DATE:28 June 2024

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

· PIC 4007(2)(b) for the purposes of clause 186.224 of Schedule 2 to the Regulations.

Statement made on 28 June 2024 at 4:27pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – occupation of Cook – health requirements – Medical Officer of the Commonwealth assessment – state funded Early Intervention Program – developmental improvements – no prejudice to access to health care or community services – state government funding for disability services – decision under review remitted         

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 186.223, 186.224; Schedule 4, Public Interest Criterion 4007

CASES

Bui v MIMA (1999) 85 FCR 134
Ramlu v MIMIA [2005] FMCA 1735
Robinson v MIMIA (2005) 148 FCR 182       

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 (Department) on 9 February 2021 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (Act).

2. The applicants applied for the visas on 2 December 2018. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. The criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.

4. In the present case, the first named applicant (applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Cook. However circumstances have changed in that the applicant is now employed both as a factory worker for Hanes Australasia Pty Ltd located south-west of Melbourne. The applicant commenced this position as a casual employee where he had the responsibility for caretaking the employer’s inventory. This occurred in April 2021. In February 2023, the applicant commenced full-time employment again in the position of an inventory manager/factory worker now earning an income between $65,000 and $70,000. Then income is derived partly through his working shift work.

5. The applicant is also employed as a part-time disability support worker the details of which have not been provided to the Tribunal, but it is accepted that he has and is undertaking this position. It is for the Department to consider the assessment of the balance of the criteria for the applicant’s 186 Visa application as he is now not employed as a cook. The position of disability support worker is with a service provider and that employment is in Victoria.

6. The 2nd applicant had previously been employed as a restaurant manager, very little in the way of particulars given as to that position. However, the 2nd applicant has taken on the role of mother and provider for their child Kayaan. The 2nd applicant has taken on this responsibility as a full-time position.

7. The delegate refused to grant the visas because the applicant did not meet cl 186.224 of Schedule 2 to the Regulations because a dependent family member child (Kayaan)  was assessed by a Medical Officer of the Commonwealth (MOC) as not satisfy Public Interest Criteria (PIC) 4007(1)(c)(ii)(A). 

8. The applicants appeared before the Tribunal on 7 February 2024 to give evidence and present arguments. The Tribunal only received oral evidence from Mr Varun Katyal. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

9. The applicants were represented in relation to the review.  The representative attended the hearing with difficulties he was disconnected from the hearing but later rejoined.  The hearing proceeded using MS teams.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicant meets PIC 4007 which falls under clause 186.224 requiring each member of the family unit of the applicant satisfies PIC 4007.

12. The Tribunal has carefully considered all the evidence previously provided to the delegate to the Department and this Tribunal, as well as the oral evidence provided by the applicants including the information and documents below:

    ·PIC 4007 Health Waiver Form.

    ·Form 884: opinion of a Medical Officer of the Commonwealth dated 17 September 2019 – the applicant does not meet the health requirement.

    ·Health Waiver Information Dated 17 September 2019.

    ·Form 884: opinion of a Medical Officer of the Commonwealth dated 8 May 2020 – the applicant does not meet the health requirement.

    ·Health Waiver Information dated 25 November 2019

    ·Health Waiver Information dated 8 May 2020.

    ·PIC 4007 Health Waiver Submission – Part B – the Health Waiver Submission.

    ·Email Department to applicant dated 29 January 2020 – recent medical/specialist reports provided to MOC.

    ·Decision record made 9 February 2021.

    ·Application For Permanent Employer-Sponsored or Nominated Visa made to December 2018.

    ·The Applicant’s HostPlus superannuation balance statements including 31 December 2017.

    ·The applicant’s Notices of Assessment for the years 2014/2015, 2015/2016, 2016/2017, 2017/2018, 2018/2019

    ·The applicant’s PAYG payment summary for the years 2016, 2017, 2018, 2019

    ·Applicants bank account balance summaries relevant to the 2016, 2017, 2018

    ·The applicant’s individual tax return for the years 2008/2009, 2009/2010, 2010/2011, 2014/2015, 2015/2016, 2016/ 2017

    ·Birth certificate of Master Katyal.

    ·Checklist for transfer of cases to Health Waiver Team dated 16 October 2019.

    ·Email dated 4 March 2020, applicant’s representative to the Department with information concerning the employment of the secondary applicant

    ·Department to the applicant dated 16 October 2019 – invitation to comment on information received as part of a Subclass 186 (Employer Nomination Scheme) visa application.

    ·Applicant – Personal particulars for assessment including character assessment form 80 bracket that dated 26 February 2020.

    ·Secondary applicant Ms Katyal – Personal particulars for assessment including character assessment (form 80) dated 26 February 2020.

    ·Applicant’s payslips for 2018, 2019 and 2020.

    ·Employment agreement between the secondary applicant and her employer dated 27 February 2020.  Further, employment agreement between the secondary applicant and her employer dated 5 March 2020.

    ·Email dated 13 May 2020, from the Department (Employer Sponsored Program Delivery) to the applicant’s representative with attachments.

    ·Applicant’s employer’s reference letter dated 2 June 2020.

    ·Email dated 16 January 2020 from the applicant to the Department concerning seeking further information for community assistance.

    ·Email dated 16 October 2019 from Department to applicant concerning the applicant not meeting the health requirements.

    ·General employment agreement dated the 15 June 2014 between the applicant’s employer and the applicant.

    ·General employment agreement between the employer and the applicant effective upon the grant of the applicant’s 186 work visa, executed 25 April 2018.

    ·Department letter dated 21 January 2020 concern response to invitation to comment on information received as part of a Subclass 186 visa and request to waive PIC 4007.

    Is a MOC opinion required?

13. A MOC opinion is required of the evidence before the Tribunal requires it. In this case a MOC opinion has been given on 8 May 2020 (form 884: Opinion of a Medical Officer of the Commonwealth).

14. The Tribunal must take the MOC opinion as correct but must firstly be satisfied that the MOC has applied the correct test in forming the opinion: Robinson-v-MIMIA (2005) 148 FCR 182 and Ramlu -v- MIMIA [2005] FMCA 1735. The opinion must identify the medical condition to which the public interest criterion has been applied, and the form or level of the condition suffered by the applicant. Further the MOC must have applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition.

15. The Tribunal is satisfied that the MOC has identified the medical condition to which the public interest criterion has been applied. Also, this opinion has identified the form or level of the condition suffered by the applicant. Further, the MOC has applied the statutory criteria referencing the hypothetical person who suffers from that form or level of the condition.

16. Kayaan, aged 5 years when assessed in the form 884 dated 8 May 2020, suffered from severe functional impairment by reason of the diagnosis of cerebral palsy with significant upper and lower limb spasticity with accompanying developmental issues.  The child KK was then unable to sit or stand unsupported and requires significant assistance with daily living activities. The form 884: Opinion of a Medical Officer of the Commonwealth, described child KK’s condition as follows:

    The applicant is a 5 year old person with:

    • Severe functional impairment

    Form and severity of the applicant’s condition: the applicant has severe functional impairment related to cerebral palsy, with significant upper and lower limb spasticity, as well as developmental issues. The applicant is unable to sit or stand unsupported and would require significant assistance with activities of daily living. Provision of services to a hypothetical person in Australia with the same condition as the applicant and at the same severity would be likely to require long-term disability support services.

    The condition is likely to be Permanent.

    I consider that a hypothetical person with this disease or condition, at the same severity as the applicant, would be likely to require health care or community services during the period specified above.

    These services would be likely to include:

    Commonwealth disability services
    Special education services

    Provision of these health care and/or community services would be likely to result in a significant cost to the Australian community in the areas of health care and/or community services.

    In preparing this opinion, I have had regard to the information available to date concerning the applicant, including, but not limited to the reports from the panel physician dated 11 September 2019, the report from occupational therapist Ms Lucy Arthur dated 28 October 2019. This case is assessed following the MOC opinion of 29 January 2020, against the new health policy settings applicable from 1 April 2020. The previous opinion should be disregarded for the purpose of visa decision, as this current opinion is based on the most up-to-date information available.’

17. Dated 8 May 2020, the Health Waiver Information provides the following information relating to the likely cost to the Australian community relevant to the form 884 is likely to be:

Commonwealth disability services	$742,000
Special education services	$491,400
TOTAL COST	$1,233,400

1. The report of Ms Lucy Arthur dated 28 October 2019 is provided under the Noah’s Ark letterhead which provides the following information concerning Kayaan:

   Kayaan is a 4-year-old boy with a diagnosis of Cerebral Palsy. Kayaan was referred to the Victorian government’s state funded Early Intervention Program through the Department of education and training in February 2016. At this time his application for Early Childhood Intervention Service (ECIS) was assessed and he met all eligibility criteria. ECIS is fully funded by the State Government with no additional cost to the family, or other funding bodies. Each place in the ECIS program is funded at approximately $8,000 per year which has involved visits approximately fortnightly with casework support outside visits.

   Since May 2016, Kayaan’s ECIS placement has been provided by Noah’s Ark Inc. We provide home and community-based services to support Kayaan and his family around his developmental needs. Kayaan’s current key worker, Lucy Arthur, has also supported the family to link into other supports the family may be eligible for. These supports have been for equipment needs, inclusion support, and kindergarten placement. Kayaan will continue to be eligible for this state-funded service through Continuity of Supports until June 2020.

   Kayaan requires specialist equipment for seating, standing, bathing and all community integration. Noah’s Ark have supported Kayaan to access items through the Statewide Equipment Program Reissue Scheme. As this is a state funded service, Kayaan will be eligible for this equipment library.  MOIRA, a not-for-profit region specific organisation has also provided a short term assistance package to support some equipment needs. Kayaan has also received support for kindergarten placement from a donation from Rotary Australia for the Termly fee to not being eligible for the kindergarten subsidy.

   Throughout services at Noah’s Ark, Kayaan has made many developmental gains, particularly in the last 6 months when having some exposure to other children in the kindergarten setting. Kayaan has commenced use of effective communication strategies to voice his needs day-to-day and is understood by familiar listeners. He can answer yes/no questions and verbalise simple and frequent choices to help him function throughout the day. Kayaan has made significant progress towards social and play skills, being able to sit with peers and participate in small group activities with 1:1 support. Physical interventions and equipment have enabled Kayaan to now stand for longer periods, commence a walking pattern with walking aid, grasp and release of items and assisted rolling of ball/toys.

   Kayaan’s mobility improvements from the use of specialised equipment and therapy, naturally have had positive effects on his overall health including; respiratory, cardiac, prevention of contractures, increase metabolic rate, encourage hip stability and overall mental well-being being able to be upright to see the world as his peers do. It has been reported by family that relocation to India will reduce these positive outcomes and put Kayaan’s future development and health at risk.…

   Kind regards Lucy Arthur
   Key worker/occupational therapist

   Health waiver submission

2. The form 884 Health Waiver (Part A) was sent to the applicant for completion with a request that the Health Waiver Submission (Part B). The information provided by the applicant’s relevant to the waiver follows.

3. Kayaan is a male person born in 2015 and is now aged 9 years. Kayaan was born in Australia. The applicant is aged 61 years and was employed as a cook at the time of his application. The 2nd applicant is now aged 54 years and is a dependent mother.

4. The applicants have not had any adverse migration history. The applicant is now employed as an inventory manager/worker and part time disability worker. The 2nd applicant is now not employed as a restaurant manager and is a full-time mother caring for Kayaan.

5. The applicants’ circumstances provided by them to the Department is comprised of the following:

   ·There are no Australian citizen children to which the applicants are responsible.

   ·They have no family members residing in Australia who are not included in their application.

   ·The applicants do have family members residing overseas. This Mr Vishal Katyal is aged 31 years and resides in India and is the applicant’s brother.

   ·In response to the question as to whether the applicant is happening are the links to Australia, the response is that they have friends in Australia and secure employment and have been any more than $50,000 last 5 years.

   ·Neither applicant is undertaking any studies.

   ·Neither applicant owns a business in Australia.

   ·The applicant is currently employed as a cook convention that employment on 16 April 2014 and is his current employment. That employment is ongoing and full-time. Previously the applicant was a cabdriver.

   ·At the time of this completing the information to the Department, the applicant was earning $54,340 and had savings of $2,000.

   ·The applicant and the 2nd applicant were married on 18 November 2012 with the 2nd applicant joining him in Australia on 24 June 2013.

   ·The applicant expresses the view that the medical expenses in India for his child medical condition is beyond his capacity to pay. He does not have any assets or any financial savings in India which would help him and his family survive in India. Unfortunately, he does not give any evidence supporting that claim.

   ·At the time of completion of the form 884 Part B the health waiver submission, the applicant had superannuation totalling approximately $25,000.

   ·The applicant holds a Diploma of Hospitality Management and has provided a letter from his employer outlining his duties. The applicant also holds the qualification of Certificate III in Hospitality (Commercial Cookery) from the Carrick Institute of Education.

   ·The 2nd applicant provided an employment agreement for the position of Restaurant Manager for the Punjabi Curry Café a position which she commenced on 23 March 2020. This occupation is not listed in the online skill shortage research information at the State, Territory and National level has carried out by the Department of Employment, Skills, Small and Family business.

   ·Currently, Kayaan attends Noah’s Ark a kindergarten specialising in caring for her children with similar conditions to Kayaan .

   ·The applicants have provided their financial incomes from the fiscal year ending 30 June 2015 to 30 June 2019 consisting of the following:

Fiscal year	Gross income	Tax paid
Applicant
2014/2015	$50,380	$7,676
2015/2016	$51,230	$7,966
2016/2017	$50,524	$7,725
2017/2018	$52,431	$8,373
2018/2019	$52,934	$7,464
2nd applicant
2018/2019	Estimate $54,934	Estimate $7464

1. The applicant submitted a letter from Ms Lucy Arthur of Noah’s Ark indicating that Kayaan was assessed as eligible for the ‘Early Childhood Intervention Service’ which is a service fully funded by the state government with no additional costs for the family or other funding bodies. Kayaan Has Been in Placement since May 2016.

2. Considering the information and documents provided by the applicant’s, the Department decided that the Officer was not satisfied that the significant cost is outweighed by mitigating factors or compassionate or compelling circumstances to the level required to justify the waiver being exercised. In summary, the circumstances relied on to decide that the significant cost is not outweighed by the mitigating factors put forward the details of which are above

1. A submission has been made by the applicant’s representative of the nominating employer being at risk and may lose income and reputation should the applicant the Tribunal be required to depart Australia. The Tribunal gives no weight to the submission, as there is no evidence supporting the proposition and lacks plausibility in suggesting that the loss of a cook would result in a decrease in profits in circumstances where the applicant is employed as a cook and not as a chef.

2. Financial support has been assured if the family was able to remain in Australia. This is a commitment, although a voluntary one of a number of religious and community organisations. It is unsupported with any documentary evidence to support this claim. In any event such a commitment would be unenforceable and legally not binding. The Tribunal gives no weight to this submission has again it is unsupported by any corroborative evidence.

   ·There are no Australian minors who would be adversely affected by a decision not to waive and as the family is not located in a regional area.

   ·Kayaan was born in Australia and there is the argument raised that it is impossible for Kayaan to survive in India for a prolonged period and that he is fully dependent on his father’s income.

   ·The applicants have resided in Australia for over 12 years and have no declared family links to Australia though they have friends. The Department noted that no letters of support have been provided to demonstrate the families community ties and social links to Australia.

   Should the requirements of PIC 4007(1)(c) be waived?

3. The requirement in PIC 4007(1)(c) to be free of a disease or condition that would impact on health or community services, may be waived if among other things, the decision maker is satisfied that the granting of the visa would be unlikely to result in either undue cost to the Australian community or undue prejudice to the access to health care or community services of an Australian citizen or permanent resident: 4007(2).

4. The evaluative judgement of whether the cost to the Australian community or prejudice to others is undue may import considerations of compassionate or other circumstances: Bui-v-MIMA (1999) 85 FCR 134 (Bui) at 47. Over and above the consideration of the likelihood that cost or prejudice will be ‘undue’ there is also the discretionary element of the ministerial waiver. It is within that discretion, compassionate circumstances or compelling circumstances may be relevant.

5. Departmental policy does provide guidance on factors that may be relevant to these factors including such criteria as:

   ·The need for, and availability of, a live organ donor;

   ·An ability to access private health treatment;

   ·Close family, social, emotional and community ties to Australia;

   ·The impact on any Australian citizen minor children;

   ·Occupational skills of the applicant or family members; and

   ·The potential contribution to Australia by the applicant or family members.

6. The granting of the visa would be unlikely to result in undue prejudice to the access to health care or community services of an Australian citizen or permanent resident: 4007(2) as is stated in the MOC report. The Tribunal is satisfied that such a grant would not prejudice an Australian citizen having access to health care or community services.

7. There are a number of matters the Tribunal must consider including the payment of health insurance which is not detailed but is assumed to be paid by the applicants. The applicants’ evidence of financial capacity to support Kayaan because of both parents’ income as well as the ability to be able to act as carer. The 2nd applicant’s evidence of employment is minimal and that there is no evidence of what care is given by either parent to Kayaan’s support. There is no evidence of either applicant making any significant contribution to Kayaan’s welfare. The applicant’s financial resources amount to a minimal some and to the superannuation is also minimal.

8. The applicants have been able to receive assistance from a Rotary club concerning financial support the details of which have not been provided. For example, as for how long that support will be secured, the amount of the support, and what conditions that support is given such as the length of time that such ship support will continue.

9. The Tribunal is not in a position to know as to the scenarios of Kayaan’s future. It is for the applicant to put forward evidence to assisted in determining whether there are compatible or compassionate circumstances of the family. The applicants do not have family living in Australia but referred to family members living in India. The 2nd applicant is younger than the applicant yet there is no information available as to what support the applicant will receive in India. The applicants would have a more clear position of Kayaan living in India but to have not provide that information to the Tribunal.

   The current position

10. Both the applicant and 2nd applicant gave evidence in a forthright and honest manner and are clearly loving parents devoted to their son. Their circumstances have changed significantly, in that the applicant has now changed his position and is working as a disability worker parttime and also working shift work as a factory worker/ manager managing his employer’s inventory. Documentary evidence has not been provided but is not helpful to the applicant as the Tribunal does not know as to whether the Department has consented to the change in position and left to the Department to consider the remainder of the criteria applicable to a 186 visa.

11. Kayaan was born 32 weeks premature and incubated for 1 month 6 days in hospital before being taken home by his parents. The applicant’s mother arrived in Australia to assist in helping to care, though it was not known of Kayaan’s condition at that time. Because of COVID, she remained in Australia for about 7 months. When Kayaan was about 7 or 8 months old, a district nurse noticed symptoms relating his limb or limbs. At about this time, Kayaan was having seizures lasting for 40 to 50 seconds, leading to seeking expert paediatric advice and ultimately being hospitalised and then diagnosed with Cerebral Palsy.

12. The 2nd applicant is now Kayaan’s full-time carer. He attends a special school between the hours of 9 a.m. and 3 p.m. He is taken to school by a bus and is otherwise cared for by his mother and particularly on school holidays. The only medication he takes is aim muscle relaxant which is subsidised that the cost is about $15-$35 per month. He takes no other medication. Kayaan attend school and is taught to subjects such as English and maths. He suffers from incontinence and the cost of the pads to assist with that condition is about $22 per bag though the 2nd applicant did not indicate how many bags would be required per day but it would be expected for that to be substantial cost for a year. It would also be expected for that cost to be subsidised to some extent. Though not necessary for the 2nd applicant to undertake physiotherapy, she does have him perform exercises in order to stretch and relaxes muscles which is done daily.

13. Kayaan was born in Australia, married on 18 December 2012, with the applicant arriving in 2013 with the 2nd applicant arriving about 6 months later.

14. The applicant’s current capacity to mitigate the potential costs of care and/or services is modest, he is certainly taken steps to increase his skills and obtain more skilful employment which ultimately will benefit his family and to a small extent Australia. The Tribunal places a significant weight on the applicant residing in Australia since early 2013 for the reason that it is a significant period of time at which he and his family have adjusted to the Australian life and the return to India would have a significant effect upon them.

15. The applicants are well integrated into the Australian community particularly in Victoria. It is not lost upon the Tribunal that the applicant’s situation and being involved in employment in shiftwork combined with the resolution of both parents to have the 2nd applicant to care for their son as much as possible, there extracurricular activities with the community are extremely limited. However, with that background and taken cumulatively the Tribunal finds that while the costs identified by the MOC are significant, they are not undue as stated by the MOC. The health waiver information dated 8 May 2020 states as follows:

    Likely Prejudice to Access

    In my opinion, granting a visa to the above applicant for the assisted period of stay would not be likely to prejudice the access of an Australian citizen or permanent resident to health care or community services.

16. The applicants have both given evidence to the effect that the facilities in their home country of India would not be conducive to caring for their child as the current circumstances have provided for him.

17. The Tribunal also notes that to the funding in relation to Kayaan is not a burden upon the Commonwealth disability services in that he is receiving Victorian funding for the services being provided to him under a special grant.

18. In relation to the secondary applicant, the appropriate course of action is to also remit the application to the Department for reconsideration in light of the finding that the first named applicant now satisfies cl.186.224.

19. Accordingly, cl 186.224 is met in relation to the PIC 4007(2)(b) of the Regulations.

20. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

21. The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

    ·PIC 4007(2)(b) for the purposes of clause 186.224 of Schedule 2 to the Regulations.

    Ian Berry
    Member

    ATTACHMENT A

    186.223(1)     The position to which the application relates is the position:

    (2)     The Minister has approved the nomination.

    (3)     The nomination has not subsequently been withdrawn.

    (3A)   Either:

    (a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

    (4)     The position is still available to the applicant.

    (5)     The application for the visa is made no more than 6 months after the Minister approved the nomination.

    ATTACHMENT B

    4007

    (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)subject to subclause (2)—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 (1A); 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.

    (1A)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.

    (1B)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 (1A)(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.

    (2)The Minister may waive the requirements of paragraph (1)(c) if:

    (a)the applicant satisfies all other criteria for the grant of the visa applied for; and

    (b)the Minister is satisfied that the granting of the visa would be unlikely to result in:

    (i)     undue cost to the Australian community; or

    (ii)    undue prejudice to the access to health care or community services of an Australian citizen or permanent resident.