1515273 (Migration)

[2019] AATA 5195

1515273 (Migration) [2019] AATA 5195 (18 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1515273

COUNTRY OF REFERENCE:                  Philippines

MEMBER:Cathrine Burnett-Wake

DATE:18 June 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for Employer Nomination (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 - Employer Nomination Scheme visa:

·The fourth named applicant satisfies PIC 4007(2)(b) for the purposes of cl.186.224(2) of Schedule 2 to the Regulations.

Statement made on 18 June 2019 at 9:32am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) – Subclass 186 Employer Nomination Scheme – health criteria – Medical Officer of the Commonwealth (MOC) opinion – cost to community – return would significantly impact the applicant – contribution to the community – will continue to cover Applicant 4’s costs – decision under review remitted  

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), r 2.25A; Schedule 2, cl 186.224; Schedule 4, Public Interest Criterion (PIC) 4007

CASES

Bui v MIMA (1999) 85 FCR 134
Ramlu v MIMIA [2005] FMCA 1735
Robinson v MIMIA (2005) 148 FCR 182

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 decisions made by a delegate of the Minister for Immigration on 3 November 2015 to refuse to grant the applicants Employer Nomination (Permanent) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 15 January 2015. The delegate refused to grant the visa as the first named applicant (now referred to as [Applicant 1]) did not satisfy cl.186.224(2) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the health criteria in Public Interest Criterion (PIC) 4007 of Schedule 4 to the Regulations was not met.

3. The applicants appeared before the Tribunal on 21 February 2019 to give evidence and present arguments.

4. The applicants were represented in relation to the review by their registered migration agent; however, the representative was not present at the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this review is whether the visa applicant meets PIC 4007 as required by the criteria for the grant of the visa. PIC 4007, 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. This last requirement may be waived in certain circumstances. The applicant in this case is [Applicant 4] who is a migrating family member of [Applicant 1’s] family unit. On 3 July 2015, [Applicant 4] was assessed by a Medical Officer of the Commonwealth (MOC) as not meeting PIC 4007(1)(c)(ii)(A). The delegate also decided not to waive PIC 4007(1)(c) as they were not satisfied that the significant costs identified were outweighed by mitigating factors and/or compassionate and compelling circumstances.

   Background

7. [Applicant 1] and his family members were granted Subclass 457 visas on 9 November 2011, which were valid until 9 November 2015. [Applicant 1] and his family members’ 457 visas were granted on the basis of his employment [in Occupation 1] with [Company 1], who has also nominated him and his family for this Employer Nomination (Permanent) visa under review.

8. The grant of a Subclass 186 visa requires an applicant to meet the health requirements along with other regulatory criteria in order for the visa to be granted. On 3 July 2015, a MOC assessed [Applicant 4] as not meeting the health requirement.

9. The MOC’s opinion stated:

   The applicant is a [age] year old person with:

   -[Medical Condition 1]

   Form and severity of the applicant’s condition: the applicant has [Medical Condition 1] and [another medical condition]. He is [details deleted]. Services likely to be required by a hypothetical person with the applicants condition in the same form and severity: it is likely that supported education, state and commonwealth disability services and community services will be required. This condition is likely to be Permanent.

   I consider that a hypothetical person with this disease or condition, at the same severity as the applicant would likely to require health care or community services during the period specified above.

   These services would be likely to include”

   Special education

   Commonwealth disability services

   State disability services

   Residential care services

   Provision of these health care and/r community services would be likely to result in a significant cost to the Australian community in the areas of health care and/or community services.

10. The health waiver information, forming part of the MOC’s opinion and provided to the Tribunal details that the estimated cost to the Australian community of the services that the applicant ([Applicant 4]) is likely to access would be $2,730,240. The MOC also outlined that in their opinion, granting a visa to the applicant ([Applicant 4]) for the assessed period of stay would not be likely to prejudice the access of an Australian citizen or permanent resident to health care or community services.

11. As has been noted above, the Departmental delegate considered whether to waive the requirements of PIC 4007(1)(c) but was not satisfied that the significant cost identified was outweighed by mitigating factors and/or compassionate and compelling circumstances, and, as [Applicant 4] did not satisfy PIC 4007, made a finding that the applicant did not meet the requirements of cl.186.224(2). PIC 4007 is a ‘one fails all fail’ criteria.

12. [Applicant 1] submitted an application for review with the Tribunal on 13 November 2015. After the review was constituted to a Member, he was given an opportunity to obtain a further opinion for [Applicant 4] by a Review Medical Officer of the Commonwealth (RMOC) in September 2018. This opportunity was taken up by [Applicant 1] and an RMOC opinion was sought for [Applicant 4].

13. A number of updated documents were provided to the Tribunal regarding [Applicant 4] which the Tribunal forwarded to the RMOC, which included:

    • School assessment for [Applicant 4] dated December 2016
    • Transition report for [Applicant 4] dated 2016
    • [Pathologist] report for [Applicant 4] dated 2016
    • Student progress report for [Applicant 4] dated 2018
    • [Pathologist] report for [Applicant 4] dated 2018

14. On 15 November 2018, the Tribunal received a ‘Form 884: Opinion of a review medical officer of the Commonwealth’ from Bupa Medical Visa Services. The opinion was that the applicant, being, [Applicant 4], does not meet the health requirement.

15. The opinion states:

    The applicant is a [age] year old person with:

    -[Medical Condition 1]

    Form and severity pf the applicants condition: [details deleted], likely to be due to [Medical Condition 1]/ He requires significant assistance with activities of daily living and to achieve his full potential. Provision of services to a hypothetical person in Australia with the same condition as the applicant at the same severity: a hypothetical person in Australia with the same condition as the applicant, at the same severity, would be likely to require long term disability support service including but not limited to special education, a carer and financial support. This condition is likely to be permanent.

    I consider that 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 specified above.

    These services would be likely to include:

    State disability services

    Commonwealth disability services

    Provision of these health care and/or community services would be likely to result in a significant cost to the Australian community in the areas of health care and/or community services.

16. An updated cost breakdown was provided as part of the opinion.  The estimated total cost breakdown was $5,599,000.

17. On 21 January 2019, the Tribunal wrote to [Applicant 1], pursuant to s.359A, inviting him to comment on information that could be the reason or part of the reason for affirming the decision under review, being the adverse RMOC opinion for [Applicant 4] and the estimated total cost breakdown.

18. On 14 February 2019, the Tribunal received submissions from the applicant’s representative which set out a request for a waiver of PIC 4007. The submissions set out the criteria considered to be compassionate or compelling and included:

    1.     the review applicant is employed by [Company 1] in the occupation of [Occupation 1] since 12 January 2012 and the employer is supportive of his permanent resident application.

    2.     His income for the year ended 30 June 2017 was $[amount] and his income for the year of 30 June 2018 was $[amount].

    3.     [Applicant 2] teaches Islamic religion classes for children at [Organisation 1].

    4.     She also coaches a [Sport 1] team at [Sport Club 1] since 2017. She is a volunteer coach for three seasons, teaching young members all the abilities of [Sport 1] skill and also good sportsmanship. She is also an age group coordinator and club family day assistant.

    5.     [Applicant 2] has a bachelor degree and she worked [in various positions] in [Country 1]. She stopped work to take care of her family. She is highly qualified has adopted a systematic approach to manage the [Medical Condition 1 of Applicant 4].

    6.     The whole family are members of  [Support Group 1].

    7.     The family consists of the following people:

    Name  Date of birth

    [Applicant 1]  [date]

    [Applicant 2]          [date]

    [Applicant 3]          [date]

    [Applicant 4]         [date]

    [Applicant 5]          [date]

    8.     The only member of the family with health issues is [Applicant 4].

    9.     The family has resided in Australia since 2012. [Applicant 1] has been gainfully employed and never took any social benefit from Australian government. He is highly regarded among his peers and colleagues.

    10.  The children spent their formative years in Australia. [Applicant 4] was only [age] when he came to Australia and is now [age] years old.

    11.  [Applicant 4] has attended [School 1] ([a specialist] school) since 2016 and his school report for 2018 shows his adjusted well and a great improvement in performance.

    12.  [Applicant 1’s]  friends and colleagues were upset that his permanent Visa might not be approved, enclose herewith some letters of support.

19. Documents accompanying the representative’s submission included:

    • Letter of support from the applicant’s employer dated 1 February 2019;
    • 2017 financial year PAYG for the applicant;
    • 2018 financial year PAYG for the applicant;
    • Employment history summary for [Applicant 2];
    • Confirmation of voluntary work at [Sport Club 1] for [Applicant 2];
    • 2018 [School 1] report for [Applicant 4];
    • Six letters of support from friends and neighbours.

    Is the applicant free from the relevant diseases or conditions (PIC 4007(1)(a), (b), (c))?

20. PIC 4007(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.

21. PIC 4007(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.

22. For specified temporary visas, certain specified health care and community services are excluded from this consideration: PIC 4007(1B). The requirement may also be waived in certain circumstances.

23. As the applicant in this case has applied for a permanent visa, the exemption provision in PIC 4007(1B) does not apply.

24. In determining whether a person meets PIC 4007(1)(a), (b) or (c), r.2.25A of the Regulations requires the Tribunal to seek the opinion of a 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?

25. 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 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.

26. As noted above, the Tribunal must take the MOC opinion as correct, but must first be satisfied the MOC has applied the correct test in forming the opinion. The Tribunal is satisfied that the opinion of the MOC and RMOC both meet the relevant requirements and are correct. Based on the MOC and RMOC opinions, the Tribunal is satisfied that the applicant ([Applicant 4]) does not meet PIC 4007(1)(c).

    Evidence at hearing

27. [Applicant 1] outlined to the Tribunal that prior to coming to Australia he worked for his current employer, [Company 1], firstly in the Philippines office, then transferring to the [Country 2] office. In 2002 he met his wife who was working for the same company on the same project as him, but out of the [Country 1] branch of [Company 1]. [Applicant 1] explained that after they married his wife stayed in [Country 1] as she was still working and had a support network in place to help care for their children, and he commuted between [Country 1] and [Country 2] for a 10-year period.

28. [Applicant 1] gave evidence to the Tribunal that he was approached to come to Australia by [Company 1], as they required an [Occupation 1] with his specialist background to work [for] Australian based clients. He explained that he was asked as there was nobody in Australia who had the same depth and level of experience as him, particularly in the older systems which were still widely used in Australia. [Applicant 1] told the Tribunal that since being in Australia he was mainly [working with] the old systems of clients which involved a lot of travel and a lot of fly-in-fly-out jobs in [a specified industry]. He said that his employer is very supportive of him and his application. He told the Tribunal that currently he was working on a client project [in location] and migrating the old [system] to a new system. He said that he has a very good future at [Company 1] because of his expertise, and although he has trained people, he is considered the specialist in [Company 1], particularly in migrating customers from the old [systems] to the new systems.  

29. [Applicant 1] told the Tribunal that he initially moved to Australia in 2012, and his family followed in 2013. He said he had three children and that his son [Applicant 4] had [Medical Condition 1] and attends a special school [at School 1]. [Applicant 1] said they had seen a remarkable improvement with [Applicant 4] since he had been attending the school and that there had been no progress in [Country 1]. [Applicant 1] said that Australia has very good support, and was more advanced in treating [Medical Condition 1] compared with [Country 1].

30. [Applicant 2] gave evidence to the Tribunal that within a year of arriving in Australia they had seen a very big difference in [Applicant 4’s] progress and that he is now much more independent. She said that in [Country 1] he needed a carer all the time, he had no independence and could not even go to the toilet alone. However, now he can and also attends to many other personal tasks, which he could not do before. She explained that in [Country 1] the knowledge of treating and supporting [Medical Condition 1] was very low. There is basically no acceptance when people have [Medical Condition 1], that the community think people with [Medical Condition 1] are ‘crazy’ and that they are discriminated against and are physically attacked. [Applicant 2] told the Tribunal that she feared for [Applicant 4] if they were to return to [Country 1], especially as he got older. She said that she worried that if they were in a public place trouble could break out. She said the family cannot imagine if he goes back now and that he would have to stay home as he wouldn’t be able to integrate or go out in the public as he can and enjoys in Australia. She also told the Tribunal that she believed, and had been told by his treating physicians, that [Applicant 4] would revert and the progress he made would go backwards. She explained that here in Australia he can attend the specialist school, which gives him skills for independence and to live and enjoy life by integrating into the community and live a normal fulfilled life, even having a job in the future.

31. [Applicant 2] said that [Applicant 4] was under the care of a paediatrician and a general practitioner and that he also attended monthly sessions for [specified] and occupational therapy. They outlay $380 per month for these services, which they get a rebate for through private insurance. [Applicant 2] said the only other outlay was for the school fees, which they paid $500 per year.

32. [Applicant 2] gave evidence to the Tribunal that like her husband she was a qualified [Occupation 1] and also worked for [Company 1] before coming to Australia. She told the Tribunal that she is not currently working as an [Occupation 1], as she prefers to have flexibility to be there for her young family. She said however, she is working and that she started  [Business 1] and has numerous clients which fits in well for their lifestyle, as she can work for her clients whilst the children are at school. [Applicant 2] however, said that she had a plan pending her permanent residency application. She said she was inspired by the level of expertise for treating [Medical Condition 1] in Australia and the people who treated them, and that she planned to retrain as an occupational therapist, specialising in treatment of [Medical Condition 1]. She explained that her family cannot afford to do this at this time, as they cannot afford the fees as an overseas student. However, they could afford it if they had permanent residency as the fees are much lower and she would not be classified as an overseas student. [Applicant 2] said she had already identified courses of interest, and it was just a matter of enrolling if and when residency was granted.

33. [Applicant 2] told the Tribunal that she likes to volunteer and had been doing so since arriving in Australia. She outlined that she participates in feeding homeless at [Location 1] on a monthly basis and that she also volunteers at a food bank, collecting and packaging food. In addition to the volunteering [Applicant 2] told the Tribunal that she also volunteers at [Sport Club 1] and coaches her daughter’s team. [Applicant 2] said the family are also members of [Mosque 1], and all participate in classes and activities on a weekly basis and additionally, [Support Group 1], an association for people suffering from [Medical Condition 1] and their family members.

1. [Applicant 2] also told the Tribunal, as she has blood type O, she donates blood on a very regular basis as her blood type can be transfused to any person requiring a transfusion no matter their blood type.

2. [Applicant 2] also spoke about her two other children, [Applicant 3] and [Applicant 5]. She said her eldest son [Applicant 3], who was [age], attends [a school]. She said he is very happy, however, he worries about having to go back to [Country 1] as he won’t be able to pursue his aspirations. She said he has started his VCE and is also taking a VET course as he wants to be a chef and own his own restaurant. She said that [Applicant 3] has integrated very well into Australia, that he attends Sunday School each week at the Mosque and that he is also an avid soccer player. [Applicant 2] told the Tribunal about her daughter [Applicant 5], who is [age] years of age and is in grade [number]. [Applicant 2] said her daughter is most athletic – she plays [Sport 1] and is very good at it. She also said [Applicant 5] had already shown an interest in trying to find a school with a scholarship for sport achievement. [Applicant 2] also said that her daughter had aspirations to attend [University 1] and study to become a scientist as she had a strong interest in science, particularly chemistry. [Applicant 2] explained that [Applicant 5's] interest in [University 1] was because [Sport Club 1] had a connection with the [Sport 1 team at University 1] and she had aspirations to play for them whilst studying at university.

3. [Applicant 2] told the Tribunal that she believed the future for her family was bright in Australia and they had a lot to contribute. She said that they all loved this country and really wanted to give all they could and that they can all achieve their dreams here.

4. [Applicant 2] told the Tribunal that they have a lot of support in Australia from the community groups they are part of, and have also established a strong network of friends.

5. [Applicant 2] said her family’s plan, pending the visa outcome was to stay here. She outlined that since arriving in 2013 they have paid and met all expenses relating to [Applicant 4]. She said that it does not cost much; nowhere near the amount the Department of Immigration (the Department) estimated the costs to be. She explained that pending residency; they plan to sell their property in [Country 1] which is worth approximately $80,000 and transfer the proceeds to Australia to use as a deposit to purchase a home. She said they all consider themselves Australian; they are very settled and just want to give back to the community as much as they can.

6. After the hearing the Tribunal received further supporting documents from the applicant. These documents included:

   • Letter from [School 1] attesting that [Applicant 2] volunteers and is an active member of the school community;
   • Educational qualifications for [Applicant 2];
   • Superannuation statement for [Applicant 1];
   • Letter from [a doctor], [Applicant 4's] medical practitioner which states:

   [Applicant 4] is suffering from a medical condition [Medical Condition 1], [Applicant 4] has progressed well under my care and specialist paediatrician in the field with multidisciplinary team care arrangement including Allied health providers i.e. [specified] pathology, special school care. I would strongly recommended endorse his PR Visa to remain in Australia. If he returns to [Country 1], the progress that he had already achieved is likely to decline, due to inadequate facilities and access to the support of experts as compared to here in Australia. [Applicant 4] will have difficulty in adjusting to the new situation is back in [Country 1]. He would not be able to be monitored and further well progressed.

   • Letter from [Organisation 1] attesting that [Applicant 2] and her children are active members of [Mosque 1] and participate in community events;
   • Four letters of support from friends;
   • Letter of support to attest that [Applicant 2] participates in the feed the homeless program at [Location 1] through the community care network and is actively involved in collecting non-perishable food donations for the food bank program;
   • Evidence from the Australian Red Cross blood service that [Applicant 2] is a regular blood donor;
   • Letter of support from the applicant’s employer [for Company 1].

   Should the requirements of PIC 4007(1)(c) be waived?

7. The requirement in PIC 4007(1)(c) to be free of a disease or condition that would impact on health or community services, may be waived if among other things, the decision maker is satisfied that the granting of the visa would be unlikely to result in either ‘undue cost’ to the Australian community or ‘undue prejudice’ to access to health care or community services of an Australian citizen or permanent resident: PIC 4007(2).

8. The evaluative judgment of whether the cost to the Australian community or prejudice to others is ‘undue’ may import considerations of compassionate or other circumstances: Bui v MIMA (1999) 85 FCR 134 (Bui) at 47. Over and above the consideration of the likelihood that cost or prejudice will be ‘undue’ there is also the discretionary element of the ministerial waiver. Within that discretion, compassionate circumstances or compelling circumstances may be relevant: Bui at 47. Departmental policy guidance on the exercise of this discretion is contained in the Procedures Advice Manual (PAM3). Broadly speaking, these relate to: family links in Australia and the impact on family members; occupational skills of the applicant or family members; assets or factors that may mitigate the costs or prejudice to access to care or services involved; available support from family or community groups; potential contribution to Australia by the applicant or family members; the immigration history of the applicant; other compelling and compassionate circumstances including location of the applicant and family members; and any other relevant factors.

9. As put forward in the representative’s submission of 14 February 2019, and as detailed in paragraph 18 of this decision, it was requested that PIC 4007(1)(c) should be waived. The Tribunal has considered the evidence before it and makes the following findings.

10. Firstly, the Tribunal notes that the original MOC opinion detailed [Applicant 4] suffered from a ‘severe [Medical Condition 1]’ and the estimated cost to the Australian community would be $2,730,240. The later RMOC opinion detailed [Applicant 4] suffered from a ‘moderate [Medical Condition 1]’ with the estimated cost to the Australian community being $5,599,000. There is no information before the Tribunal regarding how or why, if  [Applicant 4’s] condition had improved as it went from ‘severe’ to ‘moderate’, the estimated cost to the Australian community would almost double.

11. Notwithstanding this, evidence was given to the Tribunal that [Applicant 4’s] condition had improved, and was continuing to improve which would also support why the recent RMOC revised [Applicant 4’s] condition to ‘moderate’. [Applicant 4’s] improvement was supported by evidence from treating physicians and [School 1]. Verbal testimony from [Applicant 1] and [Applicant 2] correlated [Applicant 4’s] improvement with access to services in Australia not available in [Country 1]. Further, that if [Applicant 4] was to return to [Country 1], he would regress as there were no services in [Country 1] for [Medical Condition 1], that individuals with such conditions are shunned from the community, and that due to the stigma attached of those suffering from [Medical Condition 1] as ‘crazy’, that [Applicant 4] would be housebound and have no quality of life, which he is able to enjoy in Australia. [Applicant 2] told the Tribunal that she was also fearful that if they had to return to [Country 1], the older [Applicant 4] got, the more vulnerable he would become. She outlined that as a child it is easier to manage his condition in [public], however, as an adult it would be more difficult.  She told the Tribunal Australia is very accepting of individuals with [Medical Condition 1] and mental health issues, however, if [Applicant 4] returned to [Country 1] he would be discriminated against and she feared for his safety as people were often violent towards individuals who suffered from [Medical Condition 1] or mental health issues. The Tribunal notes the Department of Foreign Affairs and Trade (DFAT) country information report for [Country 1] details there is ‘a lack of understanding about mental and intellectual disabilities including [Medical Condition 1]’ and that:

    mental health services are available in [Country 1], but are limited. General health facilities including local hospitals may provide basic mental health services. Specialised mental health facilities are also used to treat general health and their capacity is often stretched. People with mental health problems may face stigma in seeking access to services.

    Further that:

    DFAT assesses that people with mental health issues, particularly the poor and those in rural areas, face a moderate risk of societal discrimination and violence. Wealthy people, especially in large cities, face a low risk of societal or official violence or discrimination.[1]

    [1] DFAT Country Information Report [Country 1], [2019].

12. The Tribunal accepts that [Applicant 4‘s] condition has improved since arriving in Australia. Further, that if he was to return to [Country 1] due to the limited services available to treat and support [Applicant 4] that he would likely, as claimed, regress. Additionally, the Tribunal is satisfied that the DFAT report on [Country 1] supports [Applicant 2’s] claims that there would be a risk of discrimination and violence against [Applicant 4] because of his [Medical Condition 1].

13. [Applicant 1] has been consistently employed since arriving in Australia in 2012. His employer and nominator for the purpose of this visa, [Company 1], have provided written evidence to the Tribunal that the applicant has a unique skill set not readily available in Australia and was specifically transferred from the [Country 2] office as he possessed skills and knowledge that the business requires to maintain [systems] of Australian based clients. Evidence from the employer is that they rely on the applicant’s skill set and expertise to fulfil their contractual requirements, and without him would find it difficult to do so. The Tribunal is satisfied that the applicant is a key and valuable employee of [Company 1] with a unique skill set not readily available in Australia. Further, that if the applicant was not able to continue employment with [Company 1] in Australia that it would likely have adverse consequences for the business as they rely on the applicant to fulfil contractual obligations.

14. [Applicant 1] has another [number] years before he reaches retirement age. His current annual earnings are approximately $[amount] per annum, tax withheld being approximately $[amount] per annum for such a salary. Given [Applicant 1’s] qualifications – a Bachelor’s Degree in [field] and his unique skill set – the Tribunal is of the view that [Applicant 1] would maintain employment at the level he currently enjoys or higher. As such, the Tribunal estimates he would contribute at least $[amount] into the Australian economy with $[amount] of that payable as tax over the rest of his working career.

15. The evidence before the Tribunal is that [Applicant 1] and his family unit have a great deal of support from friends and community groups to provide assistance. Further, that the family are extremely active in their community. The family are active members of the [Mosque 1], [School 1], along with [Sport Club 1] and [Support Group 1]. [Applicant 2’s] contribution to the community is particularly noteworthy. With her long standing contribution to [Sport Club 1] as a coach, her contribution to the feed the homeless program at [Location 1] she attends each Saturday evening, along with her contribution to the foodbank programme and very importantly her long term and ongoing blood donations, which as blood type O is able to be used by all blood types who require a transfusion.

16. [Applicant 2], prior to having children had a career similar to that of [Applicant 1]. She is also a qualified [Occupation 1] with a bachelor degree in the discipline. [Applicant 2] is fluent in English and although she has not worked in her area of expertise since being in Australia, she has started [Business 1] as this allows more flexibility with her young family.  The Tribunal is satisfied that [Applicant 2] is participating in active self-employment. The Tribunal also considers [Applicant 2’s] long term plans to re-train as an occupational therapist to assist families with children suffering from [Medical Condition 1] would be a valuable contribution to the Australian community in the future. As part of the review process for this matter, the Tribunal undertook research about the disability care sector, specifically caring for individuals with [Medical Condition 1], and notes there is a shortage of qualified occupational therapists. According to the Productivity Commission’s 2017 report, this will only become worse, leading to poorer care outcomes for the most vulnerable. The Productivity Commission report notes that the recruitment and training of individuals into the sector is crucial in addressing skill shortages if the industry is to circumvent them in the future.[2]

    [2] Productivity Commission 2017, National Disability Insurance Scheme (NDIS) Costs, Study Report, Canberra.

17. The applicants’ immigration history is sound, there have been no reported issues and by all accounts all applicants have abided by the visa conditions of the 457 visas and bridging visas held.

18. Evidence of assets held by the applicants was provided to the Tribunal. The applicants have approximately $60,000 in assets held in Australia. Further, the applicants stated that if the visa is granted they would sell their property in [Country 1] worth $80,000 and transfer the proceeds to Australia to use to purchase a property in Australia.

19. Both [Applicant 1] and [Applicant 2] stated that they have been covering the costs of [Applicant 4’s] care since they arrived in Australia. They outlined that they are currently spending $380 per month on therapies for [Applicant 4] and the school fees were $500 per year. The applicants queried how the estimated cost was totalled, and did not agree that it was realistic and that they planned to cover the costs as they had been doing if granted permanent residency. The Tribunal accepts that [Applicant 1] and [Applicant 2] will continue to cover the costs as they have claimed.

20. As per the MOC and RMOC opinions, [Applicant 4’s] condition would not result in undue prejudice or prejudice access of an Australian citizen or permanent resident to health care or community services.  The Tribunal therefore turns its mind to any undue cost. As it stands, the current and future financial earning capacity of [Applicant 1] and [Applicant 2] would not be able to offset, in full, the likely cost to the Australian community resulting from [Applicant 4’s] condition. Their future earnings would only go some way towards doing so. However, of significance, which outweighs any undue cost, is the contribution [Applicant 1] and [Applicant 2] and their children have to offer Australia.   The evidence before the Tribunal is that [Applicant 1’s] unique skill set and expertise is not readily available in Australia and his employment is critical for his employer to retain significant contracts. All family members are also active members of their community through their place of worship, their active involvement  in sporting communities, [School 1], [Support Group 1], [Applicant 2] volunteering for the homeless and her blood donor contributions. The family also enjoy significant support from their community, and many letters of support have been provided as part of this merits review application. Such support is reflective of the level of contribution they make. All family members are also willing to contribute to Australia moving forward, particularly with [Applicant 2’s] planned re-skilling as an Occupational Therapist.  Although the other children of the family are quite young, they all have career ambitions in Australia in the areas of science and entrepreneurship. The other factor of significance to the Tribunal’s overall consideration is [Applicant 4’s] wellbeing, currently as a child, and moving into his adult years. The Tribunal accepts that [Applicant 4’s] formative years have now been spent in Australia and his condition has improved. The Tribunal also accepts returning to [Country 1] would likely have a significant impact on his condition and would not be in his best interests, further and of significance, he may be subject to discrimination and or violence as is reflected in the DFAT report.

21. Cumulatively and on consideration of all the circumstances of the family, the Tribunal finds that granting the visa would be unlikely to result in undue cost to the Australian community.

22. For these reasons outlined, the Tribunal is satisfied that the granting of the visa would be unlikely to result in undue cost or undue prejudice within the terms of PIC 4007(2)(b). Therefore PIC 4007(1)(c) can be waived.

23. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for the visa for each applicant.

    DECISION

24. The Tribunal remits the application for  Employer Nomination (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 - Employer Nomination Scheme visa:

    ·The fourth named applicant satisfies PIC 4007(2)(b) for the purposes of cl.186.224(2) of Schedule 2 to the Regulations.

    Cathrine Burnett-Wake

    
    

    Member

    ATTACHMENT

    Migration Regulations 1994

    Schedule 4

    4007(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)    subject to subclause (2) — 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 (1A); 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.

    (1A)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.

    (1B)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 (1A)(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.

    (2)The Minister may waive the requirements of paragraph (1)(c) if.

    (a)    the applicant satisfies all other criteria for the grant of the visa applied for; and

    (b)    the Minister is satisfied that the granting of the visa would be unlikely to result in:

    (i)undue cost to the Australian community; or

    (ii)undue prejudice to the access to health care or community services of an Australian citizen or permanent resident.