Shrestha (Migration)

[2024] AATA 301

Shrestha (Migration) [2024] AATA 301 (12 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Aashish Shrestha
Mrs Pritika Karki

REPRESENTATIVE:  Mr Majeesh Variyaniyil Gopi (MARN: 1808791)

CASE NUMBER:  2401603

HOME AFFAIRS REFERENCE(S):          BCC2023/7145994

MEMBER:Mary Sheargold

DATE:12 February 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 visa:

·Public Interest Criterion 4005(1) for the purposes of cl 485.216(1) of Schedule 2 to the Regulations.

Statement made on 12 February 2024 at 12:43pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – health requirement – Medical Officer of the Commonwealth assessment – cleared medical examinations provided upon review – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 485.216; Schedule 4, Public Interest Criterion 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 applicants Skilled (Provisional) (Class VC) visas under s 65 of the Migration Act 1958 (Cth) (the Act). The applicants applied for the visas on 8 December 2023. The delegate refused to grant the visas on 16 January 2024.

2. The delegate made the decision on the basis that evidence of a medical assessment was not provided as required to satisfy a criterion for the grant of the visa under the Migration Regulations 1994 (Cth) (the Regulations).

3. On 5 February 2024, the Tribunal received confirmation that the applicants had undertaken the required medical examinations and been cleared as meeting PIC 4005(1).  In light of the new evidence received, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration, including in relation to the secondary applicant.

4. 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.

   DECISION

5. The Tribunal remits the application for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 visa:

   ·Public Interest Criterion 4005(1) for the purposes of cl 485.216(1) of Schedule 2 to the Regulations.

   Mary Sheargold
   Member