1404173 (Migration)

[2015] AATA 3314

1404173 (Migration) [2015] AATA 3314 (7 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1404173

MEMBER:Miriam Holmes

DATE:7 August 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a  Regional Employer Nomination (Permanent) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 187 -  Regional Sponsored Migration Scheme visa:

·PIC 4005(1) for the purposes of cl.187.235 of Schedule 2 to the Regulations.

Statement made on 07 August 2015 at 1:57pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 [in] February 2014 to refuse to grant the applicant a Regional Employer Nomination (Permanent) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa [in] December 2012. [in] February 2014 the delegate refused to grant the visa on the basis that the applicant did not satisfy cl.187.235 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 by teleconference on 25 May 2015 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent, although his agent did not participate in the 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. The applicant in this case is whether the applicant meets the criteria in PIC 4005(1)(c).

   Is the applicant free from the relevant diseases or conditions (PIC 4005(1)(a), (b), (c))?

6. Public interest criterion 4005(1)(a) and (b) require the applicant to be free from tuberculosis and 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.

7. Public interest criterion 4005(1)(c) requires the applicant be free from a disease or condition which would be likely to require health care or community services or which would meet the medical criteria for provision of a community service during the specified period; and  provision of the health care or community services (regardless of whether it will actually be used in connection with the applicant) would be likely to: result in a significant cost to the Australian community in the areas of health care and community services; or prejudice access of an Australian citizen or permanent resident to health care or community services. For specified temporary visas, certain specified health care and community service are excluded from this consideration: PIC 4005(3).

8. As the applicant in this case has applied for a permanent visa, the exclusion provision in PIC 4005(3) does not apply.

9. In determining whether a person meets PIC 4005(1)(a), (b) or (c) r.2.25A requires the Tribunal to seek the opinion of a Medical Officer of the Commonwealth (MOC) 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 specified country and there is no information known to Immigration to the effect that the person may not meet those requirements.  Where an opinion of a MOC is required, the Tribunal must take it be correct: r.2.25A(3).

   Is a MOC opinion required?

10. The applicant is a citizen of Sri Lanka and therefore in accordance with the requirements set out in IMMI 14/042 the applicant is required to undertaken a medical examination, chest x-ray and HIV test.

11. On the evidence before the Tribunal, a MOC opinion is required.  As noted above, the Tribunal must take the MOC opinion as correct, but must be first be satisfied the MOC has applied the correct test in forming the opinion: Robinson v MIMIA (2005) 148 FCR 182 and Ramlu v MIMIA [2005] FMCA 1735. That is, the opinion must identify the medical condition to which the public interest criterion has been applied, and the form or level of the condition suffered by the applicant, and the MOC must have applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition.

12. The Tribunal made the following findings based on the information on the department file, the oral evidence and the delegate’s decision record.

    ·The applicant is [age] years old. [In] January 2013 the applicant was involved in a serious car accident and suffered significant injuries.

    ·[In] September 2013 a Medical Officer of the Commonwealth formed an opinion that the applicant suffers a significant cognitive impairment and a hypothetical person with this disease or condition, at the same severity as the applicant, would be likely to require health care or community services during the period and this would be likely to result in a significant cost to the Australian community in the areas of health care and/or community services. The medical officer determined that the applicant does not satisfy PIC 4005 (1)(c)(ii)(A).

    ·The applicant requested that a review of the opinion of the medical officer be undertaken. [In] January 2014 a review was completed. The review medical officer determined that the applicant does not satisfy PIC 4005 (1)(c)(ii)(A).  The review medical officer formed an opinion that the applicant suffers an acquired brain injury and a hypothetical person with this disease or condition, at the same severity as the applicant, would be likely to require health care or community services during the period and this would be likely to result in a significant cost to the Australian community in the areas of health care and/or community services.

    ·After the review application was lodged the Tribunal invited the applicant to comment on the adverse information under s359A and gave the applicant a further opportunity for a review medical officer. The applicant requested a further review. [In] March 2015 the review medical officer that the applicant does not satisfy PIC 4005 (1)(c)(ii)(A).  The review medical officer formed an opinion that the applicant suffers a moderately severe functional and cognitive impairment due to trauma to the brain and to the lower limbs and a hypothetical person with this disease or condition, at the same severity as the applicant, would be likely to require health care or community services during the period and this would be likely to result in a significant cost to the Australian community in the areas of health care and/or community services.

    ·On 22 May 2015 the Tribunal received a further updated neuropsychologist’s report in relation to the applicant dated [in] May 2015. At the hearing the applicant requested a further review medical officer look at this additional material. The applicant also requested that the review medical officer personally assess the applicant. The applicant also indicated that if the further review medical officer opinion was negative then he sought Ministerial Intervention.

    ·[In] June 2015 the Department advised that they refused the request for the reviewing medical officer to examine the applicant personally or to speak with the applicant’s treating neuropsychologist and noted all clinical information should be provided in writing.

    ·[In] August 2015 the Tribunal was notified by the Department that the review by a medical officer had been completed [in] June 2015 and that the applicant was assessed as meeting the requirements in PIC 4005. A copy of the ISCE record stating that the applicant meets the requirement was confirmed as accurate by an  officer at Bupa Medical Visa Services [in] August 2015.

13. The Tribunal is satisfied that the review medical officer opinion dated [in] June 2015 has applied the correct test in forming the opinion: Robinson v MIMIA (2005) 148 FCR 182 and Ramlu v MIMIA [2005] FMCA 1735. That is, the Tribunal is satisfied that the opinion identifies the medical condition to which the public interest criterion has been applied, and the form or level of the condition suffered by the applicant, and the MOC has applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition. Accordingly, based on the opinion of the MOC, the applicant satisfies public interest criterion 4005(1).

14. 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

15. The Tribunal remits the application for a  Regional Employer Nomination (Permanent) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 187 -  Regional Sponsored Migration Scheme visa:

    ·PIC 4005(1) for the purposes of cl.187.235 of Schedule 2 to the Regulations.

    Miriam Holmes
    Senior Member

    
    

    ATTACHMENT - Extracts from Schedule 4 to Migration Regulations 1994

    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.