Singh (Migration)

[2018] AATA 5602

Singh (Migration) [2018] AATA 5602 (23 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mandeep Singh

CASE NUMBER:  1822759

HOME AFFAIRS REFERENCE(S):           BCC2016/1520460

MEMBER:Alison Mercer

DATE:23 November 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for an Employer Nomination (Permanent) (Class EN) visa for reconsideration, with the direction that the applicant meets the following criteria for a subclass 186 (Employer Nomination Scheme) visa:

·Public Interest Criterion 4007(1)(aa) for the purposes of cl.186.224 of Schedule 2 to the Regulations.

Statement made on 23 November 2018 at 5:40pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – health criteria – medical assessments now undertaken – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.224; Schedule 4, PIC 4007

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 24 July 2018 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 21 April 2016. At the time of application, Class EN contained one subclass: subclass 186 (Employer Nomination Scheme).

3. The criteria for the grant of a subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.

4. In the present case, the applicant is seeking the visa in Temporary Residence Transition stream.

5. The delegate refused to grant the visa because the applicant did not meet cl.186.224 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant met Public Interest Criterion 4007 (PIC 4007) (which cl.186.224 required the applicant to satisfy). The delegate noted that all applicants were required to meet the health requirement set out in PIC 4007, and that the applicant had been requested to undertake a health assessment on 8 November 2016, 6 December 2016 and 16 January 2017 but had not provided any evidence of having done so.

6. The Tribunal received a review application on 7 August 2018. It was accompanied by a copy of the delegate’s decision.

7. On 12 November 2018, the applicant’s agent advised the Tribunal that the applicant had undertaken his medical examination. On 14 November 2018, the Department confirmed to the Tribunal that the applicant had completed his medical assessment on 7 November 2018 and received an auto-cleared outcome (no significant findings).

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this review is whether the applicant meets the health criteria referred to in cl.186.224 for the grant of a subclass 186 visa. Regulation 2.25A of the Regulations requires the Tribunal to seek the opinion of a Medical Officer of the Commonwealth ('MOC') in determining whether a person meets the requirements of  PIC 4005 (1)(a), 4005(1)(b), 4005(1)(c), 4006A(1)(a), 4006A(1)(b), 4006A(1)(c), 4007(1)(a), 4007(1)(b), 4007(1)(c) of Schedule 4 to the Regulations, unless: the application is for a temporary visa and there is no information known to Immigration to the effect that the person may not meet those requirements; or the application is for a permanent visa and made from a gazetted country and there is no information known to Immigration to the effect that the person may not meet those requirements.

10. The health criterion relevant to this class of visa is item 4007 of Schedule 4 to the Regulations. It states:

    4007

    (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;

    …

11. Based on the material on the Department’s file (including its electronic records) and the material on the Tribunal’s file, the Tribunal finds that the applicant did not respond to requests from the Department to provide evidence of having undertaken a health assessment at the time of the delegate’s decision.

12. Subsequently, he provided evidence to the Tribunal of undertaking a health assessment with a Department-approved provider.  The evidence before the Tribunal is that the results of the health assessment indicated no significant findings.

13. The Tribunal has checked the Department's ISCE records, which record receipt of the health result of 7 August 2018.

14. On the basis of the information before it, the Tribunal is satisfied that the applicant meets PIC 4007(1)(aa) for the purposes of cl.186.224 and the appropriate course is for the Tribunal to remit the matter to the Minister for reconsideration of the remaining criteria for the visa.

    DECISION

15. The Tribunal remits the application for an Employer Nomination (Permanent) (Class EN) visa for reconsideration, with the direction that the applicant meets the following criteria for a subclass 186 (Employer Nomination Scheme) visa:

    ·Public Interest Criterion 4007(1)(aa) for the purposes of cl.186.224 of Schedule 2 to the Regulations.

    Alison Mercer

    
    

    Member