Khan (Migration)

[2023] AATA 3167

Khan (Migration) [2023] AATA 3167 (30 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Naila Khan
Mr Kanwar Zafar Ullah Khan

REPRESENTATIVE:  Mr Harsh Yadav (MARN: 2117646)

CASE NUMBER:  2305374

HOME AFFAIRS REFERENCE(S):          BCC2022/3488275

MEMBER:Mary Sheargold

DATE:30 August 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for Temporary Activity (Class GG) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 408 (Temporary Activity) visa:

·PIC 4005(1)(aa)(i) for the purposes of cl 408.216 of Schedule 2 to the Regulations.

Statement made on 30 August 2023 at 11:27am

CATCHWORDS  
MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – health criteria – medical assessment undertaken – ‘auto cleared’ – decision under review remitted 

LEGISLATION 
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 408.216; Schedule 4, PIC 4005

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 29 March 2023 to refuse to grant the applicants Temporary Activity (Class GG) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 29 August 2022. The delegate refused to grant the visa on the basis that the first named applicant (now referred to as the applicant) did not satisfy cl 408.216 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. 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. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Public Interest Criterion 4005, as it applies to this case, 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.

7. On 28 February 2023 the delegate requested the applicant to complete the specified health examinations. On 29 March 2023, the Department had no record that the required health examinations had been completed and no information was provided to the Department to indicate that the applicant intended to undertake those examinations. Accordingly, the delegate was not satisfied that the applicant met the requirements of PIC 4005(1)(aa)(i) and refused to grant the visa.

8. The issue in this review is whether the applicant has undertaken a medical assessment as required by PIC4005(1)(aa)(i).

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

9. Public Interest Criterion 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.

10. The Tribunal notes that IMMI 15/144 has been the subject to several amendments, including by LIN 22/065, which commenced on 1 July 2022 and required specified classes of persons to undergo additional medical testing for latent tuberculosis. The Instrument was further amended by LIN 23/042, which commenced on 1 July 2023, and required specified classes of persons to undertake Serum Creatinine/eGFR testing. There is no express provision which suggests that the amendments made to IMMI 15/144 (by LIN 22/065 and LIN 23/042) were intended to apply retrospectively to applications made prior to the commencement of those amending instruments. Accordingly, the Tribunal considers that the applicable version of the Required Medical Assessment (IMMI 15/144) is that which was in effect at the time the visa application was made.

11. In this case, the visa application was made on 29 August 2022.  At that time, the classes of persons specified in IMMI 15/144 were persons who are citizens of a country or who have spent three or more consecutive months during the last five years in a country or countries either listed or not listed in Schedule 1 to that Instrument. The applicants are citizens of Pakistan. Pakistan is not listed in Schedule 1 to that Instrument.

12. Schedule 2 to IMMI 15/144 lists the medical assessments to be undertaken by citizens of countries that are not listed in Schedule 1 to that Instrument. For a temporary visa applicant aged 11 years or older, Schedule 2 requires that the applicant undergo a medical examination, chest x-ray and any additional assessments specified in Column E.

13. Departmental records indicate that the applicant has undertaken the required medical examinations and was ‘Auto Cleared’ on 5 July 2023. On the basis of this evidence, the Tribunal is satisfied that the applicant has undertaken the health assessment required by IMMI 15/144 for the purposes of PIC 4005(1)(aa)(i).

14. On the evidence before it, the Tribunal finds that the applicant satisfies the requirements of PIC 4005(1)(aa)(i).

15. The Tribunal notes that the second named applicant (Mr Khan) has also undertaken the required medical assessment and was also ‘auto cleared’, however, this was not the basis on which his visa was refused. The Department refused Mr Khan’s visa on the basis that he was not a member of the family unit of a person who holds a Subclass 485 visa.

16. In the circumstances, the appropriate course of action is to remit the matter to the Department with a direction that the first named applicant satisfied PIC 4005(1)(aa)(i). Upon remittal, the Department will assess whether the first named applicant satisfies the remaining criteria for the grant of the Subclass 408 visa. It will also assess the secondary named applicant against the secondary criteria for the grant of the visa.

    DECISION

17. The Tribunal remits the application for Temporary Activity (Class GG) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 408 (Temporary Activity) visa:

    ·PIC 4005(1)(aa)(i) for the purposes of cl 408.216 of Schedule 2 to the Regulations.

    Mary Sheargold
    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.