Sun (Migration)

[2024] AATA 2356

Sun (Migration) [2024] AATA 2356 (21 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Mangmang Sun

REPRESENTATIVE:  Ms Chengyu Wu (MARN: 1467623)

CASE NUMBER:  2411440

HOME AFFAIRS REFERENCE(S):          BCC2024/1689731

MEMBER:Wan Shum

DATE:21 June 2024

PLACE OF DECISION:  Sydney

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

·

PIC 4005(1)(aa) for the purposes of

cl 485.313 of Schedule 2 to the Regulations

Statement made on 21 June 2024 at 3:52pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – health requirement – evidence of clear health examinations – decision under review remitted     

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 485.216, 485.313; 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 applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant applied for the visa on 13 March 2024 as a subsequent entrant connected with the application of Ms Zhen.

2. The delegate refused to grant the visa on 24 April 2024 because there was no evidence that the applicant had completed the health examinations required, nor was there evidence of any intention to undertake the health examinations. The applicant was found not to satisfy the requirements of public interest criteria (PIC) 4005(1)(aa)(i) of Schedule 4 to the Migration Regulations 1994 (Cth) (the Regulations) as required by cl 485.216 of Schedule 2 to the Regulations. However, the Tribunal notes that cl 485.216 applies to persons seeking to satisfy the primary criteria. It is cl 485.313 which is the relevant criterion for persons claiming to be a member of the family unit of another person who seeks to satisfy the primary criteria. In any case, both types of applicants need to satisfy PIC 4005(1)(aa)(i) and undertake the health examinations specified.

3. In determining whether the necessary health examinations have been completed for the purposes of PIC 4005(1)(aa)(i), the relevant instrument is IMMI 15/144 compilation no. 2. The applicant is a national of People’s Republic of China and is seeking a provisional visa. This means Schedule 2 and 3 of that instrument applies which specifies that for persons aged 15 and over, a medical examination, chest x-ray, serum creatinine/eGFR, HIV test and additional medical assessments which may be required depending on intended occupation or workplace or condition. For the purposes of PIC 4005(1)(aa)(ii), medical assessments conducted within Australia must be conducted by Bupa Australia Health Pty Ltd, trading as Bupa Medical Visa Services, or an Approved Medical Practitioner. On review, it was indicated that the applicant had made an appointment for a health examination and later provided evidence that they had booked a test with Bupa Medical Visa Services for 13 June 2024.

4. The information available to the Tribunal reflects that the applicant finalised the health requirement and was recorded as “auto cleared” on 14 June 2024. The Tribunal’s understanding is that the applicant has undertaken the medical assessment required which was conducted by the person specified in IMMI 15/144 compilation No 2.

5. In light of this information, the Tribunal finds that PIC 4005(1)(aa) is satisfied and has concluded that the matter should be remitted for consideration of the remaining criteria for the visa.

   DECISION

6. 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) for the purposes of cl 485.313 of Schedule 2 to the Regulations.

   Wan Shum
   Member