Shubhpreet Kaur (Migration)

This matter concerned an application for a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate), made by Ms. Shubhpreet Kaur. The primary dispute before the Tribunal was whether Ms. Kaur had satisfied the health requirement under Public Interest Criterion (PIC) 4005(1)(aa)(i) of the Migration Regulations 1994. The delegate had refused to grant the visa on the basis that the required health examinations had not been completed by the specified date.

The legal issue before the Tribunal was to determine whether the applicant had undertaken the medical assessment as required by PIC 4005(1)(aa)(i). This criterion mandates that applicants in a specified class undertake a medical assessment unless a Medical Officer of the Commonwealth decides otherwise. The Tribunal also considered the impact of amendments to the relevant instrument, IMMI 15/144, which specified the required medical assessments, on applications made prior to their commencement.

The Tribunal reasoned that the applicable version of IMMI 15/144 was that in effect at the time the visa application was made, which was 7 March 2021. It noted that subsequent amendments to IMMI 15/144, including those requiring additional testing for latent tuberculosis and Serum Creatinine/eGFR testing, did not expressly apply retrospectively. As Ms. Kaur was a citizen of India, which was not listed in Schedule 1 of IMMI 15/144, Schedule 2 applied, requiring a medical examination, chest x-ray, and any additional assessments specified. The Tribunal concluded that the matter should be remitted to the Department with a direction that the first applicant satisfied PIC 4005(1)(aa)(i). Upon remittal, the Department is to assess the remaining criteria for the grant of the visa to the first applicant and the secondary criteria for the secondary applicant.