RABBAB (Migration)

[2018] AATA 3715

RABBAB (Migration) [2018] AATA 3715 (8 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs BEGUM RABBAB
Mr Hyder Raza Agha Syed
Master Hussain Raza Moosvi Agha Syed
Master Akbar Agha Moosvi

CASE NUMBER:  1714435

DIBP REFERENCE(S):  BCC2016/1058481

MEMBER:Sheridan Lee

DATE:8 August 2018

PLACE OF DECISION:  Melbourne

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

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

Statement made on 08 August 2018 at 4:53pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – health criteria – not all health examinations completed – visa medical assessment – health criteria met – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2 cl 485.216, Schedule 4 PIC4005

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 27 June 2017 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 11 March 2016. The delegate refused to grant the visa on the basis that the first named applicant (now referred to as the applicant) did not satisfy cl. 485.216(1) 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. In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to section 360(2)(a) of the Act.

   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.

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

5. 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. The relevant class of persons and assessments are specified in IMMI 15/144.

6. Under Schedule 2 of IMMI 15/144, provisional visa applicant’s with a country of citizenship for all countries that are not listed in Column A of Schedule 1 are required to undergo the medical examinations specified in the table. On the visa application form, the applicant provided details of her Indian citizenship. India is not listed in Column A of Schedule 1. The subclass 485 visa is a provisional visa. As such, the applicant is in the class of persons specified in the instrument.

7. At the time of the delegate’s decision, the applicant had not completed all of the necessary health examinations. In particular, she had not completed the Tuberculosis investigation (603 exam).

8. In submissions of 3 July 2017, the applicant outlined that she had engaged a migration agent to assist with her visa application. She attended all scheduled medical appointments and submitted all requested documentation, including evidence of her pregnancy and the subsequent birth of her second son. Her submissions contend that had she been notified of the requirement by her migration agent, she would have undertaken the necessary exam.

9. The applicant subsequently attended a visa medical assessment on 15 June 2018. The Tribunal has before it a completed Form 884: Opinion of a Medical Officer of the Commonwealth, which states that the applicant has been assessed against Public Interest Criterion 4005 for the Subclass 485 visa and meets the health requirement for the period of 4 years.

10. For these reasons the requirements in PIC 4005(1)(aa) are met.

11. 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.

12. As the second, third and fourth named applicants applied on the basis of being a member of the family unit of the first named applicant, their application will be determined by reference to the outcome of the first named applicant’s application on remittal to the Department for reconsideration.

    DECISION

13. The Tribunal remits the application for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 (Temporary Graduate) visa:

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

    Sheridan Lee
    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.