Lama (Migration)

[2022] AATA 1957

Lama (Migration) [2022] AATA 1957 (10 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sonam Topgyal Lama
Mrs Ngawang Yangchen Lama

REPRESENTATIVE:  Mr Chintan Dhungel (MARN: 1805758)

CASE NUMBER:  2204545

HOME AFFAIRS REFERENCE(S):          BCC2021/1089708

MEMBER:Kira Raif

DATE:10 June 2022

PLACE OF DECISION:  Sydney

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

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

Statement made on 10 June 2022 at 2:34pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – health requirements – evidence of required health examinations provided – opinion of medical officer of commonwealth taken as correct – decision made without hearing held – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.25A(3), Schedule 2, cl 485.216, Schedule 4, criterion 4005(1)

CASES
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 decisions made by a delegate of the Minister for Home Affairs on 16 March 2022 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 16 May 2021. 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 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. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. The issue in this review is whether the visa applicant meets 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, 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.

5. Public interest criterion 4005(1)(a) and (b) require the applicant to be free from tuberculosis and 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.

6. Public interest criterion 4005(1)(c) requires the applicant be free from a disease or condition which would be likely to require health care or community services or which would meet the medical criteria for provision of a community service during the specified period; and  provision of the health care or community services (regardless of whether it will actually be used in connection with the applicant) would be likely to: result in a significant cost to the Australian community in the areas of health care and community services; or prejudice access of an Australian citizen or permanent resident to health care or community services. For specified temporary visas, certain specified health care and community service are excluded from this consideration: PIC 4005(3).

7. In determining whether a person meets PIC 4005(1)(a), (b) or (c) reg 2.25A requires the Tribunal to seek the opinion of a Medical Officer of the Commonwealth (MOC) unless: the application is for a temporary visa and there is no information known to Immigration to the effect that the person may not meet those requirements; or the application is for a permanent visa and made from a specified country and there is no information known to Immigration to the effect that the person may not meet those requirements.  Where an opinion of a MOC is required, the Tribunal must take it be correct: reg 2.25A(3).

   Is the applicant free from the relevant diseases or conditions (PIC 4005(1)(a), (b), (c))?

8. The Tribunal determined that  a MOC opinion is required. The primary decision record indicates that  the delegate wrote to the applicant requiring him to undertake health examinations but this was not done.

9. The applicant provided to the Tribunal evidence of having completed the health examinations. Electronic records before the Tribunal indicate that the applicant has been cleared to meet the health requirements.

10. As noted above, the Tribunal must take the MOC opinion as correct, but must first be satisfied 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. That is, 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, and the MOC must have applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition.

11. Having regard to the electronic records before the Tribunal, the Tribunal is satisfied that the applicant meets public interest criterion 4005(1)(c).

    Conclusion

12. 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

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

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

    Kira Raif
    Senior Member