Patel (Migration)

[2019] AATA 3309

Patel (Migration) [2019] AATA 3309 (2 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ankitkumar Chimanbhai Patel
Mrs Ankitaben Ankitkumar Patel

CASE NUMBER:  1912145

HOME AFFAIRS REFERENCE(S):          BCC2018/6151324

MEMBER:Alison Mercer

DATE:2 July 2019

PLACE OF DECISION:  Melbourne

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

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

Statement made on 02 July 2019 at 12:39pm

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), ss 65, 360
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 29 April 2019 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 14 January 2019. Visa Class VC contains subclass 485. (For visa applications made before 1 July 2013, there is also a subclass 487; however, that subclass is not relevant to the present matter.) The criteria for the grant of a subclass 485 visa are set out in Part 485 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Relevantly to this case, they include cl.485.216. This clause requires that, amongst other things, that the applicant satisfies the relevant health criteria in Public Interest Criterion 4005 (PIC 4005).

3. The delegate refused to grant the visa because the first named applicant (the applicant) did not satisfy cl.485.216 of Schedule 2 to the Regulations. The delegate noted that the applicant was requested on 14 March 2019 to provide evidence of having undertaken a health examination but failed to do so. The delegate found that the second named applicant (the applicant’s spouse) did not meet cl.485.311, which required her to be a member of the family unit of a person who held a subclass 485 visa, and there was no evidence that she met the primary visa criteria in her own right.

4. The Tribunal received a review application from the applicants on 16 May 2019, which was accompanied by a copy of the delegate’s decision.

5. On 28 May 2019, the applicants provided evidence of having undertaken a health assessment with BUPA on 24 May 2019.  The Tribunal has checked the Department’s Integrated Client Service Environment (ICSE) electronic records, which indicate that the applicants were both recorded as having undertaken the health assessment and were both ‘auto-cleared’ on 30 May 2019.

6. In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicants on the basis of the material before it, pursuant to section 360(2)(a) of the Act. 

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

   CONSIDERATION OF RELEVANT LAW, CLAIMS AND EVIDENCE

8. The issue in this review is whether the applicant meets the health criteria referred to in cl.485.216(1) for the grant of a subclass 485 (Class VC) visa. Regulation 2.25A of the Regulations requires the Tribunal to seek the opinion of a Medical Officer of the Commonwealth ('MOC') in determining whether a person meets the requirements of  PIC 4005 (1)(a), 4005(1)(b), 4005(1)(c), 4006A(1)(a), 4006A(1)(b), 4006A(1)(c), 4007(1)(a), 4007(1)(b), 4007(1)(c) of Schedule 4 to the Regulations, 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 gazetted country and there is no information known to Immigration to the effect that the person may not meet those requirements.

9. The health criterion relevant to this class of visa is item 4005 of Schedule 4 to the Regulations. It relevantly states:

   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

   …

10. Based on the material on the Department’s file (including its electronic records) and the material on the Tribunal’s file, the Tribunal finds that the applicant was required to undertake a health assessment and that both applicants did so on 24 May 2019 with a Department-approved provider.  The evidence before the Tribunal is that the results of those health assessments indicated no significant findings.

11. The Tribunal has checked the Department's ISCE records, which record receipt of the health assessment result of 8 November 2018.

12. On the basis of the information before it, the Tribunal is satisfied that the applicant meets PIC 4005(1)(aa) for the purposes of cl.485.216(1) and the appropriate course is for the Tribunal to remit the matter to the Minister for reconsideration of the remaining criteria for the visa.

13. As the second named applicant applied on the basis that she is a member of the family unit of the applicant, her application will be determined by reference to the outcome of the applicant’s application on remittal to the Department for reconsideration.

    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 visa:

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

    Alison Mercer
    Member