Xu (Migration)

[2024] AATA 2247

Xu (Migration) [2024] AATA 2247 (19 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Jiamin Xu
Mr Qihong Xu

CASE NUMBER:  2403288

HOME AFFAIRS REFERENCE(S):          BCC2023/6901225

MEMBER:Wan Shum

DATE:19 June 2024

PLACE OF DECISION:  Sydney

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

·

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

cl 485.216 of Schedule 2 to the Regulations

Statement made on 19 June 2024 at 4:55pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – applicant was ‘auto cleared’ for the ‘finalised health requirement’ – applicant met the health requirements – meets the requirements of Public Interest Criterion 4005 – 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 a decision made by a delegate of the Minister for Home Affairs to refuse to grant Skilled (Provisional) (Class VC) visas to the applicants under s 65 of the Migration Act 1958 (Cth) (the Act). The applicants applied for the visas on 28 November 2023, with the first named applicant seeking to satisfy the primary criteria for the visa while the second named applicant was included in the application on the basis of being his spouse. The delegate refused to grant the visas on 6 February 2024.

2. The reason for refusal to grant the visa to the first named applicant was because he had not completed the health examinations and had not provided any evidence he had any intention to undertake the health examinations. She 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. As a consequence, the second named applicant was found not to be a member of the family unit of a person who holds a Subclass 485 visa.

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 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, medical examination, TB screening and any additional medical assessments which is dependent 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 2 April 2024. However, the examination date was changed to 24 May 2024 due to technical issues with the identification number issued by the Department.

4. The information before the Tribunal is that the applicant finalised the health requirement and was “auto cleared” on 25 May 2024. On the information available, the Tribunal finds that the applicant has undertaken the medical assessment required and the medical assessment was conducted by the person specified in IMMI 15/144 compilation 2.

5. In light of this, the Tribunal finds that PIC 4005(1)(aa) is satisfied and has concluded that the matter should be remitted for reconsideration of the remaining criteria for the grant of the visas to the applicants.

   DECISION

6. The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa 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.

   Wan Shum
   Member