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

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).
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.
The applicants appeared before the Tribunal on 21 February 2019 to give evidence and present arguments.
The applicants were represented in relation to the review by their registered migration agent; however, the representative was not present at the hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
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)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] AATA 5195
Decision Date: 18 June 2019

CaseChat Overview and Summary

This matter concerned an application for a Subclass 186 Employer Nomination (Permanent) visa, where the applicant, [Applicant 4], a migrating family member, was assessed by a Medical Officer of the Commonwealth (MOC) as not meeting the health requirement under PIC 4007(1)(c)(ii)(A). The delegate had previously decided not to waive this requirement, finding that the identified significant costs to the community were not outweighed by mitigating factors or compassionate and compelling circumstances. The applicant's family unit had been granted Subclass 457 visas based on the primary applicant's employment with the nominator, who had also nominated them for the permanent visa under review.

The central legal issue before the Tribunal was whether [Applicant 4] met the health criteria stipulated by PIC 4007, specifically concerning the potential for significant cost to the Australian community arising from their medical condition. This involved determining if the estimated cost of $2,730,240 for healthcare and community services was so substantial as to preclude a waiver, even if the MOC opined that granting the visa would not prejudice the access of Australian citizens or permanent residents to such services.

The Tribunal reasoned that while the MOC's opinion indicated a significant cost to the community, it also stated that granting the visa would not likely prejudice the access of Australian citizens or permanent residents to health care or community services. The Tribunal concluded that the delegate had not adequately considered the waiver provision under PIC 4007(2)(b), particularly the aspect of "undue cost to the Australian community" and the mitigating factors. Consequently, the Tribunal remitted the application for reconsideration, directing that the fourth named applicant satisfies PIC 4007(2)(b) for the purposes of clause 186.224(2) of Schedule 2 to the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE 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 [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. 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. 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 educationCommonwealth disability servicesState disability servicesResidential care servicesProvision 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. 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.

Decision

Reasons for decision

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 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-WakeMemberATTACHMENTMigration Regulations 1994Schedule 44007(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.

Ratio Decidendi

Legal Principle Established

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