Kaur (Migration)

[2018] AATA 695

Kaur (Migration) [2018] AATA 695 (16 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Gurpreet Kaur
Mr Sandeep Satija
Mr Aarav Satija

CASE NUMBER:  1728053

DIBP REFERENCE(S):  BCC2017/2999557

MEMBER:Katie Malyon

DATE:16 March 2018

PLACE OF DECISION:  Sydney

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

·PIC 4005(1) for the purposes of cl.485.216 of Schedule 2 to the Regulations

Statement made on 16 March 2018 at 8:52 am

CATCHWORDS

Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Cleared the Health assessments

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2 cl 485.216 Schedule 4 Criteria 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 Immigration to refuse to grant the applicants Skilled (Provisional) (Class VC) Subclass 485 visas under s.65 of the Migration Act 1958 (the Act).  The applicants applied for the visas on 21 August 2017.  

2. On 1 November 2017, the delegate refused to grant the visas on the basis that the first named applicant, Mrs Gurpreet Kaur, did not as not satisfy cl.485.216 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the health criteria in Public Interest Criterion (PIC) 4005 of Schedule 4 to the Regulations were not met.

3. In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicants on the basis of 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 Mrs Kaur meets PIC 4005 as required by cl.485.216 of Part 485 of Schedule 2 to the Regulations for grant of the visa. PIC 4005 is extracted in the Attachment to this decision. It requires the applicant, in certain circumstances, to undergo medical assessment, and to be free of certain diseases or conditions that may impact on the community. The application in this case was refused on the basis that Mrs Kaur did not provide evidence of having undertaken the requisite a medical assessment as required by PIC 4005(1)(aa)(i) of Schedule 4 to the Regulations.

6. PIC 4005(1)(aa) requires that if the applicant is in a specified class of persons, he or she 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 IMMI 15/144 Required Medical Assessment dated 19 November 2015.

7. Mrs Kaur is a national of India, a country not listed in Column A of the Table in Schedule 1 to IMMI 15/144. She applied for a Subclass 485 visa – that is, she is intending a temporary stay in Australia of 6 months or more - and she indicated she intends to work as a Nurse. Accordingly, the Tribunal needs to be satisfied that the medical assessments undertaken by Mrs Kaur meet the requirements in Columns C and E of Schedule 2 to IMMI 15/144. This requires Mrs Kaur to undertake a medical examination, chest x-ray, HIV test, Hepatitis B and Hepatitis C test.

8. Mrs Kaur provided evidence to the Tribunal that she attended a Sonic HealthPlus facility in Darwin on 6 November 2017.  The receipt issued by Sonic HealthPlus indicates Mrs Kaur underwent a medical examination, chest x-ray, HIV test, Hepatitis B and Hepatitis C tests.

9. The Tribunal has independently conducted a search of the Department’s electronic records which confirm that Mrs Kaur’s health assessment was finalised by the Department as ‘Recommend Cleared’ on 9 November 2017.  The Department’s Procedures Advice Manual PAM 3 indicates that ‘Recommend Cleared’ means ‘the health clearance can be re-used for a subsequent temporary visa, irrespective of the period of visa grant on the subsequent temporary visa. This is because no health concerns have been identified, and had the applicant applied for a visa with a longer grant period initially, their health clearance would have been cleared for the longer stay’ (emphasis added).

10. Having considered the Department’s electronic records, the Tribunal is satisfied that Mrs Kaur undertook the requisite medical examination, chest x-ray, HIV test, Hepatitis B and C tests on 6 November 2017 specified in Column E of Schedule 2 to IMMI 15/144 for an applicant from India who intends to work as a Nurse. The Tribunal therefore finds that Mrs Kaur satisfies PIC 4005(1)(aa).

11. There is no evidence before the Tribunal to indicate that Mrs Kaur has been requested by a MOC to undertake a medical assessment or to indicate that she has failed to comply with any such request.  Therefore, Mrs Kaur meets the requirements of PIC 4005(1)(ab).   

12. Mrs Kaur’s Subclass 485 application is for a temporary visa.  On the evidence available, the Tribunal is satisfied that there is no information known to Immigration to the effect that Mrs Kaur may not meet PIC 4005(1)(a), (b) or (c).  The Tribunal has considered evidence information in the Department’s electronic records.  Based on this evidence, as well as the absence of any contrary information known to the Tribunal, the Tribunal is satisfied that Mrs Kaur satisfies PIC 4005(1)(a), (b) and (c).

13. Mrs Kaur lives in the Northern Territory.  There is no evidence before the Tribunal to indicate that a MOC has requested Mrs Kaur provide a signed undertaking to present herself to a health authority in the Northern Territory for the purposes of PIC 4005(1)(d).  In the circumstances, PIC 4005(1)(d) does not apply in this case.

14. Having regard to the above, the Tribunal finds that the requirements in PIC 4005(1) of Schedule 4 to the Regulations are met by Mrs Kaur.

15. 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

16. The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 (Temporary Graduate) visa:

    ·PIC 4005(1) for the purposes of cl.485.216 of Schedule 2 to the Regulations.

    Katie Malyon

    
    Member

    ATTACHMENT -  Extract from the 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.

    oOOo