SHARMA (Migration)

[2017] AATA 1127

SHARMA (Migration) [2017] AATA 1127 (4 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Santosh Sharma
Ms Sabina Dahal Sharma
Miss Somi Sharma

CASE NUMBER:  1702379

DIBP REFERENCE(S):  BCC2016/2840388

MEMBER:Katie Malyon

DATE:4 July 2017

PLACE OF DECISION:  Sydney

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) for the purposes of cl.485.216 of Schedule 2 to the Regulations.

Statement made on 04 July 2017 at 6:57 pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – Temporary Graduate – Public Interest Criterion 4005 – Required medical assessment provided

LEGISLATION
Migration Act 1958, ss 65, 360(2)(a)
Migration Regulations 1994, 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 decisions made by a delegate of the Minister for Immigration on 9 February 2017 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named applicant, Mr Santosh Sharma, and the second named applicant, Mr Sharma’s wife Ms Sabina Dahal Sharma, applied for the visas on 26 August 2016. The third named applicant, the couple’s daughter Miss Somi Sharma, was born after lodgement of the application and was added to the application before the delegate’s decision. The delegate refused to grant the visa on the basis that Mr Sharma did not satisfy cl.485.216 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. 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 s.360(2)(a) of the Act. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this review is whether the first named visa applicant meets PIC 4005 as required by cl.485.216 of Part 485 of Schedule 2 to the Regulations for the grant of the visa. PIC 4005 is extracted in the Attachment to this decision. It requires the applicant, in certain circumstances, to undergo a medical assessment and to be free of certain diseases or conditions that may impact on the community. Mr Sharma’s application for a Subclass 485 visa was refused on the basis that he did not undertake a medical assessment as required by PIC 4005(1)(aa)(i) of Schedule 4 to the Regulations.

6. PIC 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 Required Medical Assessment dated 19 November 2015.

7. Mr Sharma is a national of Nepal, a country not listed in Column A of Schedule 1 to IMMI 15/144. He applied for a Subclass 485 visa, that is, he is intending a temporary stay in Australia of 6 months or more. Accordingly, the Tribunal needs to be satisfied that the medical assessments undertaken by Mr Sharma meet the requirements in Columns C and E of Schedule 2 to IMMI 15/144. Medical assessments conducted within Australia must be conducted by Bupa Australia Health Pty Ltd T/A Bupa Medical Visa Services, or an Approved Medical Practitioner: cl.3(a) of IMMI 15/144.

8. Mr Sharma’s representative provided the Tribunal with evidence that both Mr Sharma and his wife attended Bupa Medical Visa Services in Parramatta on 1 March 2017.  The receipt provided to the Tribunal indicates that Mr Sharma underwent a medical examination, chest x-ray and HIV blood test.  The Tribunal has independently conducted a search of the Department’s electronic records which confirm that Mr Sharma’s requirement for a health assessment was finalised as ‘Auto Cleared’ on 2 March 2017.  The Department’s Procedures Advice Manual PAM 3 indicates that ‘Auto Clear’ means the “health case has passed auto clear rules and has automatically been given a ’Meets’ outcome” which, in turn, means that the “applicant has met the health requirement and the visa can be granted if all other visa criteria are met”.

9. Having considered the Department’s electronic records the Tribunal is satisfied that Mr Sharma undertook the requisite medical examination and chest x-ray on 1 March 2016. Further, the Tribunal is satisfied that no additional medical assessment specified in Column E of Schedule 2 to IMMI 15/144 is required on the basis that Mr Sharma is not: intending to work as (or study to be) a doctor, dentist, nurse or paramedic; likely to work (or be a trainee) in a childcare centre; aged 75 years or older; and, nor is he is female so he will not fall pregnant. The Tribunal therefore finds that Mr Sharma satisfies PIC 4005(1)(aa).

10. There is no evidence before the Tribunal to indicate that Mr Sharma has been requested by a MOC to undertake a medical assessment or to indicate that he has failed to comply with any such request.  Therefore, Mr Sharma meets the requirements of PIC 4005(1)(ab).   

11. Mr Sharma’s Subclass 485 application is for a temporary visa.  On the evidence available, the Tribunal is satisfied that there is no information known to Immigration to the effect that Mr Sharma may not meet PIC 4005(1)(a), (b) or (c).  The Tribunal has considered evidence provided from Mr Sharma’s representative and information in the Department’s electronic records.  Based on this evidence, as well as the absence of any contrary information known to the Tribunal or the Department, the Tribunal is satisfied that Mr Sharma satisfies PIC 4005(1)(a), (b) and (c).

12. There is no evidence before the Tribunal to indicate that a MOC has requested Mr Sharma to provide a signed undertaking to present himself to a health authority in his resident State of New South Wales for the purposes of PIC 4005(1)(d).  In the circumstances, PIC 4005(1)(d) does not apply in this case.

13. Having regard to the above, the Tribunal finds that the requirements in PIC 4005(1) of Schedule 4 to the Regulations are met by Mr Sharma.

14. 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, not only in respect of Mr Sharma but also the secondary applicants who are his family members.

    DECISION

15. 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) for the purposes of cl.485.216 of Schedule 2 to the Regulations.

    Katie Malyon

    
    Member

    ATTACHMENT -  Extract from the 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.

    oOOo