Mohommed Ishak (Migration)

[2024] AATA 405

Mohommed Ishak (Migration) [2024] AATA 405 (26 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mohammed Irfaath Mohommed Ishak

REPRESENTATIVE:  Mr Ravi Vipulbhan Shah (MARN: 2117164)

CASE NUMBER:  2400413

HOME AFFAIRS REFERENCE(S):          BCC2023/6760619

MEMBER:P. Maishman

DATE:26 February 2024

PLACE OF DECISION:  Perth

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

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

Statement made on 26 February 2024 at 4:28pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – health requirement – cleared medical assessment provided upon review – decision under review remitted        

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 485.216; Schedule 4, Public Interest Criterion 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 Home Affairs on 4 January 2024 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 22 November 2023. The delegate refused to grant the visa on the basis that 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 applicant was represented in relation to the review.

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 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, 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 applicant in this case did not undertake a health examination for an Australian visa in the 12 months preceding the visa application, and did not provide the Department evidence he intended to do so.  

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

6. 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 Required Medical Assessment.

7. The applicant is a citizen of Sri Lanka, evidenced by the Sri Lankan passport provided to the Department on application for the visa. Column A of Schedule 1 of IMMI 15/144 contains a list of countries of citizenship, and Sri Lanka is not listed. Column A of Schedule 2 of the instrument prescribes the medical assessments for all countries that are not listed in column A of the table in Schedule 1. Therefore, the required medical assessments for citizens of Sri Lanka are prescribed in Schedule 2 of IMMI 15/144.

8. A grant of this visa is for a temporary stay in Australia of 6 months or more, and the applicant is aged more than 11 years. The Tribunal is satisfied that the applicant is in a specified class of persons, specified in column C of Schedule 2.

9. There is nothing before the Tribunal that indicates a Medical Officer of the Commonwealth has decided that the applicant is not required to undertake the specified medical assessment.

10. On 11 January 2024 the applicant informed the Tribunal that the required medical assessment was scheduled for 25 January 2024, and provided a confirmation email from BUPA dated 27 December 2023.

11. Departmental records demonstrate that the applicant underwent the required medical assessments, and his medical assessments were cleared on 12 February 2024.

12. For these reasons the requirements in PIC 4005(1)(aa) are met.

13. 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

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

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

    P. Maishman
    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.