Poudel (Migration) - [2025] ARTA 2120

POUDEL (MIGRATION) [2025] ARTA 2120 (8 JULY 2025)
DECISION AND
REASONS FOR DECISION
Applicants:Mrs Shristi Poudel
Mr Dhurba Adhikari
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2507985

Tribunal:General Member N Goetz
Place:Melbourne
Date: 8 July 2025

Decision:The Tribunal sets aside the decision refusing to grant each applicant a Temporary Graduate (class VC) Temporary Graduate (Post Higher Education Work) (subclass 485) visa and remits the visa application for reconsideration with the following directions:
·Mrs Shristi Poudel satisfies PIC 4005(1)(aa)(i) for the purpose of cl 485.216 of Schedule 2 to the Migration Regulations 1994 (Cth)
·Mr Dhurba Adhikari satisfies cl 485.311 of Schedule 2 to the Migration Regulations 1994 (Cth) in the event that Mrs Shristi Poudel is granted the Temporary Graduate (class VC) Temporary Graduate (Post Higher Education Work) (subclass 485) visa.

Statement made on 08 July 2025 at 11:41am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 Temporary Graduate (Post Higher Education Work) – health requirement – Medical Officer of the Commonwealth assessment – health requirement finalised upon review – member of the family unit – decision under review remitted
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth), s 106
Migration Act 1958 (Cth), ss 65, 348
Migration Regulations 1994, Schedule 2, cls 485.216, 485.311; Schedule 4, Public Interest Criterion 4005
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for merits review of decisions made under s 65 of the Migration Act 1958 (Cth) (the Migration Act) by a delegate of the respondent who refused to grant each applicant a Temporary Graduate (class VC) Temporary Graduate (Post Higher Education Work) (subclass 485) visa.
The Department file reference is BCC2025/343270.
The applicants are represented in the review by a registered migration agent. The respondent is taken to be a non-participating party to the review under s 348A of the Migration Act.
BACKGROUND, VISA CRITERIA AND PROCEDURAL HISTORY
On 16 January 2025 the applicants applied for the visa. In the visa application form, the applicants identify that they are presently located in Australia and are a married couple.
The criteria for the grant of the Temporary Graduate (class VC) Temporary Graduate (Post Higher Education Work) (subclass 485) visa are contained in Part 485 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Migration Regulations).
Mrs Shristi Poudel applied for the visa on the basis that she satisfied the primary criteria for the grant of the visa: cl 485.2.
Mr Dhurba Adhikari applied for the visa on the basis that he satisfied the secondary criteria for the grant of the visa: cl 485.3.
On 19 February 2025 the delegate refused to grant each applicant the visa.
Mrs Shristi Poudel was refused the visa on the basis that she did not satisfy public interest criteria (PIC) 4005(1)(aa)(i) of Schedule 4 to the Migration Regulations for the purpose of cl 485.216 of Schedule 2 to the Migration Regulations. These clauses provide the following:
PIC 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
(iii)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.
485.216
(1)The applicant satisfies public interest criteria 4001, 4002, 4003, 4003B, 4004, 4005, 4010, 4020 and 4021.
(2)If the applicant had turned 18 at the time of application, the applicant satisfies public interest criterion 4019.
(3)Each member of the family unit of the applicant who is an applicant for a Subclass 485 visa satisfies public interest criteria 4001, 4002, 4003, 4003B, 4004, 4005, 4010 and 4020.
(4)Each member of the family unit of the applicant who:
(a)       is an applicant for a Subclass 485 visa; and
(b)       had turned 18 at the time of application;
satisfies public interest criterion 4019.
(5)       Each member of the family unit of the applicant who:
(a)       is an applicant for a Subclass 485 visa; and
(b)       has not turned 18; and
(c)       made a combined application with the applicant;
satisfies public interest criteria 4015 and 4016.
Mr Dhurba Adhikari was refused the visa on the basis that he did not satisfy cl 485.311 of Schedule 2 to the Migration Regulations. This clause provides the following:
485.311
The applicant:
(a)is a member of the family unit of a person who holds a Subclass 485 visa granted on the basis of satisfying the primary criteria for the grant of the visa, and made a combined application with that person; or
(b)is a member of the family unit of a person who holds a Skilled (Provisional) (Class VC) visa on the basis of satisfying the primary criteria for the grant of a Subclass 485 visa.
On 27 February 2025 the application for review of the decision was lodged with the Tribunal.
The issues in the review are:
· Whether Mrs Shristi Poudel satisfies PIC 4005(1)(aa)(i) for the purpose of cl 485.216
· Whether Mr Dhurba Adhikari satisfied cl 485.311
If the Tribunal finds that a particular applicant satisfies the criteria under review, the correct or preferable decision is to set aside the decision under review in respect of that applicant, and remit the visa application for reconsideration.
If the Tribunal finds that a particular applicant does not satisfy the criteria under review, the correct or preferable decision is to affirm the decision under review.
Section 106(3) of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act) provides that the Tribunal can make a decision on the review without holding a hearing if, among other things, the Tribunal can make a decision favourable to the applicant.
Having considered the material, the Tribunal determines that it can make a decision favourable to the applicants, namely setting aside the decisions refusing to grant the applicant the visas. This means that the Tribunal made a decision without holding a hearing.
CONSIDERATION AND CONCLUSION
The delegate decision record detailed that following the lodgement of the visa application on 16 January 2025, Mrs Shristi Poudel was directed to undertake medical exams and to provide evidence within 28 days that they had made an appointment to do so.
No evidence was provided that Mrs Shristi Poudel had done so by 19 February 2025.
On this basis, the delegate determined that Mrs Shristi Poudel did not satisfy PIC 4005(1)(aa)(i) for the purpose of cl 485.216.
The delegate also found that as Mrs Shristi Poudel did not satisfy cl 485.216, Mr Dhurba Adhikari was not a member of the family unit as a person who holds a 485 visa.
On this basis, the delegate determined that Mr Dhurba Adhikari did not satisfy cl 485.311.
Following the review application being lodged with the Tribunal, Department records demonstrate that Mrs Shristi Poudel’s is recorded as ‘Finalised Health Requirement’ with the qualifier being ‘Auto Cleared’ for BCC2025/343270.
The Tribunal understands that this means that Mrs Shristi Poudel is considered to have satisfied PIC 4005(1)(aa)(i) for the purpose of cl 485.216.
On this basis, the Tribunal finds that Mrs Shristi Poudel satisfies PIC 4005(1)(aa)(i) for the purpose of cl 485.216.
The applicants provided a copy of a marriage registration certificate indicating that they are married as of 28 November 2022.
The Tribunal determines that this means that the applicants are members of the same family unit.
On this basis, the Tribunal finds that in the event that Mrs Shristi Poudel is granted the visa, Mr Dhurba Adhikari would satisfy cl 485.311 because he is a member of her family unit.
DECISION
The Tribunal sets aside the decision refusing to grant each applicant a Temporary Graduate (class VC) Temporary Graduate (Post Higher Education Work) (subclass 485) visa and remits the visa application for reconsideration with the following directions:
·Mrs Shristi Poudel satisfies PIC 4005(1)(aa)(i) for the purpose of cl 485.216 of Schedule 2 to the Migration Regulations 1994 (Cth)
·Mr Dhurba Adhikari satisfies cl 485.311 of Schedule 2 to the Migration Regulations 1994 (Cth) in the event that Mrs Shristi Poudel is granted the Temporary Graduate (class VC) Temporary Graduate (Post Higher Education Work) (subclass 485) visa.
Representative for the Applicant: Mr Shankar Dharel (MARN: 2217794)
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)unless the applicant is a minor born in Australia and is ordinarily resident in Australia, 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.