Ng (Migration)

[2021] AATA 2717

Ng (Migration) [2021] AATA 2717 (8 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Wing Yin Ng

CASE NUMBER:  1828047

HOME AFFAIRS REFERENCE(S):          BCC2018/2744729

MEMBER:Antonio Dronjic

DATE:8 July 2021

PLACE OF DECISION:  Melbourne

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) for the purposes of cl.485.216 of Schedule 2 to the Regulations.

Statement made on 08 July 2021 at 4:06pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – health requirement – Medical Officer of the Commonwealth assessment – further opinion requested upon review – criteria met for the current visa application – decision under review remitted          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 485.216; Schedule 4, PIC 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 5 September 2018 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 23 July 2018. 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 (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4005 of Schedule 4 to the Regulations was not met.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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, 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.

5. The applicant was requested to undertake medical examinations and the results were referred to the Medical Officer of the Commonwealth (MOC) assessment. On 4 September 2018 the MOC provided his/her opinion that the applicant does not meet the health requirement.

6. The applicant sought review of the delegate’s decision on 25 September 2018.  A copy of the delegate’s decision accompanied the review application.

7. On 2 April 2019, the Tribunal (differently constituted) sent a copy of MOC opinion dated 4 September 2018. With the same letter, the applicant was offered an opportunity to obtain a further MOC opinion.

8. The matter was constituted to the current Tribunal on 15 March 2021. On 24 March 2021, the Tribunal sent a copy of MOC opinion dated 4 September 2018, informing the applicant that further opinion from MOC should be obtained because the earlier opinion is not current.  With the same letter, the applicant was offered an opportunity to obtain a further MOC opinion.

9. On 25 March the Tribunal wrote to the Department the following:

   The Tribunal has a ‘Form 884: Opinion of a Medical Officer of the Commonwealth’ dated 4 September 2018. This was produced in respect of a Subclass 485 (temporary graduate) visa application.

   The presiding Member noted that the MOC Opinion (attached for you convenience) states that ‘The applicant has been assessed against Public Interest Criterion (PIC) 4005 for the period of a permanent stay in Australia’ (emphasis added). The Tribunal is of the view that the MOC Opinion is not valid, as this visa does not entitle the visa holder to a ‘permanent stay in Australia’.

   Secondly, the MOC opinion states that ‘Provision of these health care and/or community services would be likely to result in a significant cost to the Australian community…’ (emphasis added). The MOC Opinion does not however specify/provide for a cost break down.

   The Tribunal urgently request from the Department any other documents related to MOC opinion and seeks Bupa’s Medical via services comments on the above two points”

10. On 6 April 2021, the applicant indicated that she would like to seek further MOC opinion and provide additional medical reports.

11. On 12 April 2021, the Department informed the Tribunal that:

    An up-front assessment was requested by the applicant at the time of the Immigration medical Examination (IME) and therefore the costing provided by the MOC was for a permanent stay.

    This is in line with Department policy as set out in the Health Procedural Instructions and therefore the MOC opinion is valid. Please see below excerpt:

    Under policy, all temporary visa applicants, unless they request assessment for a permanent stay ‘upfront’, are assessed, in the first instance, against the health requirement for the maximum period of stay of relevant visa subclass that they have applied for (that is, the standard HAP period).

    If, however, the applicant fails to meet the health requirement for this period of stay and the officer intends to grant the visa for a shorter period of stay, a new MOC opinion must be requested from the Migration Medical Service Provider (MMSP).

12. On 24 June 2021 a further MOC opinion was requested by the applicant and new medical reports enclosed.

13. On 7 July 2021, the following email was received by the Tribunal from the Department’s Immigration Health Policy and Assurance Branch:

    We can confirm the AAT review request for Wing Yin Ng has now been assessed by a Senior Medical Officer of the Commonwealth and an outcome is now available in HAP. The medical condition is a meet for the current visa application. The medical information indicates that the applicant's condition is stable, and the current visa application is not likely to enliven PIC following the change to costing.

14. Based on the ISCE records, the Tribunal is satisfied that the applicant has undertaken the medical assessment specified in the relevant instrument on 6 July 2021 and that the assessment was carried out by the relevant person specified in the instrument. The ISCE record indicates that the applicant meets the health requirements. Accordingly, the applicant satisfies PIC 4005(1)(aa).

15. On 8 July 2021, the Department provided to the Tribunal MOC opinion dated 6 July 2021 stating that the applicant has been assessed against PIC 4005 and meets the health requirement for the period of 5 years.

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

16. 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.

17. The applicant has now undertaken medical examination in accordance with Departmental policy and the results of this were reported on the Departmental database on 6 July 2021.  The Tribunal finds the applicant therefore meets the requirements in PIC 4005(1)(aa).

18. 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

19. 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.

    Antonio Dronjic
    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.