Niloy (Migration)

[2024] AATA 1643

Niloy (Migration) [2024] AATA 1643 (26 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Fazal Mahmud Niloy

REPRESENTATIVE:  Mr Dakshkumar Dipakkumar Patel (MARN: 2418384)

CASE NUMBER:  2404020

HOME AFFAIRS REFERENCE(S):          BCC2023/7354025

MEMBER:Wan Shum

DATE:26 April 2024

PLACE OF DECISION:  Sydney

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 26 April 2024 at 12:15pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – health criteria – medical assessment undertaken – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 26 February 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 17 December 2023. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of public interest criteria (PIC) 4005(1)(aa)(i) of Schedule 4 to the Migration Regulations 1994 (Cth) (the Regulations) as required by cl 485.216 of Schedule 2 to the Regulations because there was no evidence that the applicant had completed the health examinations and had not provided any evidence had any intention to undertake the health examinations.

3. In determining whether the necessary health examinations have been completed for the purposes of PIC 4005(1)(aa)(i), the relevant instrument is IMMI 15/144 compilation no. 2. The applicant is a national of Bangladesh and is seeking a temporary visa for a stay of 6 months or more. This means Schedule 2 and 3 of that instrument applies which specifies that for persons aged 15 and over, medical examination, chest x-ray, serum creatinine/eGFR and additional medical assessments which is dependent on intended occupation or workplace or condition. For the purposes of PIC 4005(1)(aa)(ii), medical assessments conducted within Australia must be conducted by Bupa Australia Health Pty Ltd, trading as Bupa Medical Visa Services, or an Approved Medical Practitioner. On review, it was indicated that the applicant had made an appointment for a health examination and later provided evidence that they had booked a test with Bupa Medical Visa Services for 8 April 2024.

4. The Department has advised that the applicant was “Recommend clear 10 April 2024”. On the information available, the Tribunal finds that the applicant has undertaken the medical assessment required and the medical assessment was conducted by the person specified in IMMI 15/144 compilation.

5. In light of this, the Tribunal finds that PIC 4005(1)(aa) is satisfied and has concluded that the matter should be remitted for reconsideration of the remaining criteria for the visa.

   DECISION

6. 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.

   Wan Shum
   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.