Khan (Migration)

This matter concerned an application for a Temporary Activity (Class GG) visa, subclass 408, made by Mr Khan. The delegate refused to grant the visa because they were not satisfied that Mr Khan met the requirements of Public Interest Criterion (PIC) 4005(1)(aa)(i), which mandates that an applicant undergo a specified medical assessment. The review before the Tribunal was whether Mr Khan had indeed undertaken the required medical assessment.

The Tribunal was required to determine whether the applicant had satisfied PIC 4005(1)(aa)(i) by undertaking the specified medical assessment. This involved considering the relevant legislative instrument, IMMI 15/144, and its amendments, particularly in relation to the commencement dates of those amendments and their retrospective application. The Tribunal also needed to ascertain the specific medical assessments required for a citizen of Pakistan applying for a temporary visa at the time the application was made.

The Tribunal reasoned that amendments to IMMI 15/144, made by LIN 22/065 and LIN 23/042, were not intended to apply retrospectively. Therefore, the applicable version of IMMI 15/144 was the one in effect when the visa application was lodged on 29 August 2022. At that time, for a citizen of Pakistan applying for a temporary visa, Schedule 2 of IMMI 15/144 required a medical examination, chest x-ray, and any additional assessments specified in Column E. The Tribunal concluded that the first applicant had satisfied PIC 4005(1)(aa)(i).

Consequently, the Tribunal remitted the application for reconsideration by the Department, with a direction that the first applicant satisfied PIC 4005(1)(aa)(i). Upon remittal, the Department was to assess whether the first applicant met the remaining criteria for the visa and also assess the secondary applicant against their respective criteria.