SUBAM (Migration)

[2018] AATA 1573

SUBAM (Migration) [2018] AATA 1573 (28 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr GLEN SUBAM

CASE NUMBER:  1708878

DIBP REFERENCE(S):  BCC2016/4328318

MEMBER:Saxon Rice

DATE:28 March 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 (Temporary Graduate) visa:

·PIC 4005(1)(aa)(i) for the purposes of cl.485.216 of Schedule 2 to the Regulations.

Statement made on 28 March 2018 at 2:33pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Requirement to undergo medical examination – Genuine mistake causing delay – Medical examination undertaken – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 a decision made by a delegate of the Minister for Immigration on 4 April 2017 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 22 December 2016. The delegate refused to grant the visa on the basis that the applicant 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. The applicant appeared before the Tribunal on 9 March 2018 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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 visa applicant meets Public Interest Criterion (PIC) 4005 as required by the criteria for the grant of the visa. Public Interest Criterion 4005, as it applies to this case, is extracted in the attachment to this decision. It requires the applicant, in certain circumstances, to undergo medical assessment, and to be free of certain diseases or conditions that may impact on the community.

6. The applicant in this case was advised by the Department (through his migration agent) about the requirement to undertake the necessary health examination on 2 March 2017 and was given 28 days to provide evidence of the appointment made to attend the required health examinations for the visa. However, as at 4 April 2017, the Department had no record of the applicant completing the required health examinations or any evidence that the applicant intended to do so.

   Has the applicant undertaken a medical assessment (PIC 4005(1)(aa))?

7. Public Interest Criterion 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.

8. At the Tribunal hearing, the applicant told the Tribunal that at the time he was aware of the Department advice regarding the need to obtain a medical assessment, he had recently returned from Fiji and he was short on money. He also explained that he only became aware of the need to obtain the medical examination on 21 March 2017 in an email from his migration agent and he was not aware that the 28 day period allowed was from 2 March 2017, or that he was only required to provide the Department with evidence that he had booked an appointment for the medical examination.

9. The applicant told the Tribunal that the issue arose due to miscommunication between him and his migration agent and that in his previous visa applications, he had always completed them himself and he was aware of all the necessary requirements and due dates. The applicant said that he believed that because he had hired a migration agent to assist him with his application, then she would advise him of all the necessary dates. He said he raised this issue with his migration agent after he received his refusal notice.

10. The Tribunal asked the applicant why he did not seek to obtain the medical examination as part of his review process to the Tribunal. The applicant said that his migration agent advised him not to get the medical assessment done because she was unsure how long the Tribunal would take to hear the matter. He said he then tried to get the medical assessment done prior to the Tribunal hearing but his ‘HAP ID’ had expired and his migration agent was unable to advise him on what he could do to obtain the necessary medical examination and advised him to go through the Tribunal process and ‘see what happens from there’.

11. The applicant’s representative confirmed that she advised the applicant to wait to obtain a medical assessment in relation to the review process at the Tribunal. She said that when the ‘HAP ID’ did not work (after the hearing invitation had been issued), she tried to log-on to the department portal to get another ‘HAP ID’ and she talked to colleagues and she was advised that there was no way to obtain a new ‘HAP ID’ unless the Tribunal sends the matter back to the Department.

12. The Tribunal had the benefit of discussing these issues at length with the applicant during the Tribunal hearing and found his evidence to be credible and genuine. It became apparent to the Tribunal that the applicant had been poorly advised and communicated with by his migration agent in relation to the health examination requirements of the visa as well as the Tribunal process and its capacity in review.

13. Accordingly, the Tribunal granted the applicant with time following the hearing to undertake the necessary medical examination. The Tribunal was advised that the applicant undertook the medical examination on 19 March 2018 and on 26 March 2018, the Tribunal received a copy of the medical examination report. The Tribunal understands that this report has also been provided to the Department.

14. For these reasons the requirements in PIC 4005(1)(aa) are met.

    CONCLUSION

15. 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.

    DECISION

16. The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 (Temporary Graduate) visa:

    ·PIC 4005(1)(aa)(i) for the purposes of cl.485.216 of Schedule 2 to the Regulations.

    Saxon Rice
    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.