Paudel (Migration)

[2024] AATA 2878

Paudel (Migration) [2024] AATA 2878 (8 July 2024)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Basu Paudel

REPRESENTATIVE:  Mrs Muna Kandel (MARN: 1577233)

CASE NUMBER:  2403633

HOME AFFAIRS REFERENCE(S):           BCC2023/6380644

MEMBER:  Wan Shum

DATE:  8 July 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application 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(1) of Schedule 2 to the Regulations

Statement made on 08 July 2024 at 3:23pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – health criteria – medical assessments undertaken – 'auto cleared’ – 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 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant applied for the visa on 6 November 2023. The delegate refused to grant the visa on 12 February 2024.

2. The reason for refusal to grant the visa to the applicant was because he had not completed the health examinations and had not provided any evidence he had any intention to undertake the health examinations. He was found not to 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.

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 Nepal and is seeking a provisional visa. This means Schedule 2 and 3 of that instrument applies which specifies that for persons aged 15 and over, Medical examination, serum creatinine/eGFR, chest x-ray, HIV test, and any 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 18 June 2024.

4. The information before the Tribunal is that the applicant finalised the health requirement and was “auto cleared” on 19 June 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 2.

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 grant of the visa to the applicant.

DECISION

1. The Tribunal remits the application 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(1) of Schedule 2 to the Regulations

Wan Shum Member

Case Number 2403633  Page 2 of 2