Torres Garcia (Migration)

[2021] AATA 2204

Torres Garcia (Migration) [2021] AATA 2204 (25 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Rossymar Yueli Torres Garcia
Mr Antonio Zubin Penaloza Rangel
Master Samuel Alejandro Flores Torres

CASE NUMBER:  2005964

HOME AFFAIRS REFERENCES:             BCC2019/6493018 BCC20196493018

MEMBER:L. Symons

DATE:25 May 2021

PLACE OF DECISION:  Sydney

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

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

Statement made on 25 May 2021 at 9:32am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – applicants the health requirements – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 485.216, Schedule 4, Public Interest Criterion (‘PIC’) 4005

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 17 March 2020 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 5 December 2019. The delegate refused to grant the visa on the basis that the first named applicant (now referred to as 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 Tribunal did not consider a hearing to be necessary as it was able to remit the matter on the material before it.

4. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

6. The issue in this review is whether the 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.

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

7. PIC 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, and the applicant is a class of person specified in this instrument.

8. In this case, the applicants lodged the visa application online on 5 December 2019 and were at that time prompted to undertake a medical examination. The applicants did not do so and on 17 February 2020 the Department requested that the applicants complete the necessary health examination. The applicants did not respond and did not complete the required health examination. Accordingly, the delegate was not satisfied that the applicant met the requirements of PIC4005(1)(aa)(i) and the visa application was refused. On 24 March 2020, the applicants applied to the Tribunal for a review of that decision.

9. On 16 July 2020, the Tribunal requested the applicants to undergo the required health examination. On 20 July 2020, the applicants advised that they had booked their health examinations and that they had been scheduled for 6 October 2020. However, on 8 October 2020 the applicants advised the Tribunal that the appointments needed to be rescheduled due to the applicant requiring emergency surgery on 26 September 2020. Their appointments were scheduled for 11 December 2020. Due to an administrative requirement their appointments were again rescheduled for 19 December 2020.

10. On 13 January 2021, the applicants’ migration agent advised the Tribunal that they had undertaken their health examinations on 19 December 2020. The records of the Department indicate that on 22 December 2020 all three applicants were found to have met the health requirements.

11. On the evidence before it, the Tribunal finds that the requirements in PIC 4005(1)(aa) are met.

12. Given the finding above, the appropriate course is for the Tribunal to remit the visa application to the Minister for reconsideration of the remaining criteria for the visas.

    DECISION

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

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

    L. Symons
    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.