Najm Ali Mohamed (Migration)

[2023] AATA 486

Najm Ali Mohamed (Migration) [2023] AATA 486 (14 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Abdallah Najm Ali Mohamed
Ms Afrah Mohan Salman Salman
Master Abbas Al Ali

Master Fatima Al Ali
Master Shahad Al Ali
Master Najm Al Ali

REPRESENTATIVE:  Mr Abu Siddque

CASE NUMBER:  2204569

HOME AFFAIRS REFERENCE(S):          BCC2020/1973957

MEMBER:Nicole Burns

DATE:14 March 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for Skilled Independent (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 189 -  Skilled - Independent visa:

·PIC 4005(1) for the purposes of cl 189.234 of Schedule 2 to the Regulations.

Statement made on 14 March 2023 at 2:56pm

CATCHWORDS
MIGRATION – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled - Independent) – health criteria – required medical examinations – department’s records show applicant auto-cleared – decision made without hearing necessary – members of family unit – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 189.234, Schedule 2, criterion 4005(1)

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 8 March 2022 to refuse to grant the applicants Skilled Independent (Permanent) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 27 July 2020. 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 189.234 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. According to the delegate’s decision record (a copy of which was provided to the Tribunal on review), the delegate found that, within the requested timeframe, the first named applicant had not provided evidence that he had undertaken required medical examinations through an approved medical services provider.

4. For the reasons that follow the Tribunal has found in favour of the applicant based on the material before it, and therefore a hearing was not necessary, pursuant to s.360(2)(a) of the Act.

5. According to information on the Department’s Integrated Client Services Environment (ICSE) records, the first named applicant was ‘Auto cleared’ for the ‘Finalised Health Requirement’ on 17 March 2022.

6. Based on this evidence, the Tribunal is satisfied that the first named applicant meets PIC 4005(1).

7. 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

8. The Tribunal remits the application for Skilled Independent (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 189 -  Skilled - Independent visa:

   ·PIC 4005(1) for the purposes of cl 189.234 of Schedule 2 to the Regulations.

   Nicole Burns
   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.