Shah (Migration)

[2024] AATA 1631

Shah (Migration) [2024] AATA 1631 (23 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Arfat Ali Shah

REPRESENTATIVE:  Mr Kian Christopher Bone

CASE NUMBER:  2401084

HOME AFFAIRS REFERENCE(S):          BCC2023/6973324

MEMBER:Wan Shum

DATE:23 April 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a GD – Temporary Work (International Relations) (Class GD) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 403 (Temporary Work (International Relations)) visa:

·PIC 4005(1)(aa) for the purposes of cl 403.291(g) of Schedule 2 to the Regulations.

Statement made on 23 April 2024 at 2:58pm

CATCHWORDS 
MIGRATION – Temporary Work (International Relations) (Class GD) – Subclass 403 – Meat Process Worker – applicant has undertaken the medical assessment required – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 403.291, PIC 4005, Schedule 4

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 10 January 2024 to refuse to grant the applicant a GD – Temporary Work (International Relations) (Class GD) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 1 December 2023 under the Pacific Australia Labour Mobility Scheme. 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 403.291(g) 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. The applicant sought review of that decision and the Tribunal was informed that an appointment had been made for a health examination and later provided evidence that they had booked a test with Bupa Medical Visa Services for 3 April 2024. 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. The applicant is a national of Fiji and is seeking the visa for a temporary stay of 12 months to work in the position of ‘Beef Processing Labourer’ in the occupation of ‘Meat Process Worker’. This means Schedules 2 and 3 of that instrument applies; which specifies that a Medical examination, chest x-ray and any additional medical assessments specified. However, no additional assessments are required as there is no indication that the applicant is seeking or intending to study, work or train to be in any of the occupations or in any of the areas specified. 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.

4. Departmental records reflect that the applicant “Finalised Health Requirement” and was “Auto cleared” on 5 April 2024. The booking information for the medical assessment reflects that the medical examinations that the applicant was to undergo included a medical examination and chest x-ray which are the medical assessments specified for a person aged 11 years or older seeking a temporary stay in Australia of 6 months or more. The Tribunal is satisfied that the medical assessment was conducted by the person specified in IMMI 15/144 compilation. On the information available, the Tribunal finds that the applicant has undertaken the medical assessment required.

5. Given 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 GD – Temporary Work (International Relations) (Class GD) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 403 (Temporary Work (International Relations)) visa:

   ·PIC 4005(1)(aa) for the purposes of cl 403.291(g) 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.