1604668 (Migration)

[2019] AATA 3500

1604668 (Migration) [2019] AATA 3500 (30 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1604668

COUNTRY OF REFERENCE:                  [Country 1]

MEMBER:Alan McMurran

DATE:30 April 2019

PLACE OF DECISION:  Sydney

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

·PIC 4007(2)(b) for the purposes of cl.186.224 of Schedule 2 to the Regulations.

Statement made on 30 April 2019 at 2:15pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) visa – Subclass 186 - Employer Nomination Scheme – health criteria – compelling circumstances – benefits to Australian community via business of nominator – applicant’s volunteerism – long-established relationships in Australia – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.224, Schedule 4, Public Interest Criterion (‘PIC’) 4007, r 2.25A

CASES
Bui v MIMA (1999) 85 FCR 134

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 on 17 March 2016 to refuse to grant the applicant an Employer Nomination (Permanent) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 19 June 2015. The delegate refused to grant the visa as the applicant did not satisfy cl.186.224 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 visa applicant is [an age]-year-old citizen of [Country 1]. The applicant has sought a visa under the Employer Nomination Scheme, subclass 186 in the Temporary Residence Transition stream, in the nominated occupation of [Occupation 1].

4. The applicant first came to Australia in 2009 and but for short holidays returning to [Country 1] on two occasions, has lived in Australia continuously since that time. The applicant re-qualified in Australia as a [Occupation 1], obtaining a Diploma [in] 2011. The applicant has worked for the nominator since 20O9 in a [business] [in] [City 1] trading as “[name]”, firstly on a casual basis, then part-time, and finally full-time in 2011, when granted a 457 visa. The applicant’s 457 visa expired in June 2015, when this application was lodged.

5. The applicant appeared before the Tribunal on 29 April 2019 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A], a client and personal friend of the applicant.

6. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this review is whether the visa applicant meets Public Interest Criterion (PIC) 4007 as required by the criteria for the grant of the visa. Public Interest Criterion 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 has been diagnosed with [a medical condition].

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

9. Clauses 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.

10. Clause 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.

11. 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.

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

13. In determining whether a person meets PIC 4007(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?

14. For the hearing, the Tribunal has had regard to the evidence contained in the Department’s files marked 1 and 2[1], and the applicant’s written submissions contained in the Tribunal’s case file[2]. This includes two further written submissions provided by the applicant at hearing.

    [1] BCC 2015/1760392

    [2] ff 27-141

15. The most recent opinion from the Review Medical Officer of the Commonwealth (RMOC) is dated 8 February 2019. On the same date, the RMOC provided a second supplementary written opinion, “for the purpose of considering a waiver of paragraph 4007(1) (c).”[3]

    [3] Ibid at ff 82-83

16. The RMOC opinion is accepted by the applicant as correct. The opinion sets out that:

    “The applicant does not satisfy sub-subparagraph PIC 4007 (1) (c) (ii)(A) in Schedule 4 to the Migration Regulations.

    The applicant is [an age]-year-old person with:

    •          [medical condition]

    Form and severity of the applicant’s condition: the applicant has [a medical condition] which has responded well to treatment [details deleted]. This condition is likely to be Permanent.

    These services would be likely to include:

    Medical services

    Pharmaceuticals

    Provision of these healthcare 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.”

17. The RMOC estimates the likely cost to the Australian community over the period of residency at [amount].The opinion further states that the applicant satisfies PIC 4007(1) (a) and (b).

18. 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.

19. The Tribunal has paid careful regard to the opinion of the RMOC. The opinion has identified the medical condition referred to above and to which PIC 4007 has been applied. The opinion has identified the form and level of the condition of the applicant by reference to a hypothetical person with the same form and level of the condition. At the hearing, both the applicant and the representative were questioned about their view of the opinion obtained and there is no dispute the Medical Officer made the necessary findings about the relevant medical condition and applied the correct statutory test.

20. The Tribunal must accept the findings of the Medical Officer in accordance with Regulation 2.25A (3) in deciding whether a person meets the criterion in PIC 4007. The Tribunal adopts the findings of the Medical Officer as it is required to do, including that the applicant’s condition is likely to require medical services and pharmaceuticals at a significant cost to the Australian community in the areas of health care and/or community services, as referred to above. The cost is primarily made up of the medication prescribed.

21. Accordingly, based on the opinion of the RMOC, the applicant does not satisfy PIC 4007(1) (c).

    Should the requirements of PIC4007 (1)(c) be waived?

22. 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 the access to health care or community services of an Australian citizen or permanent resident: 4007(2).

23. 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. And within that discretion, compassionate circumstances or compelling circumstances may be relevant: Bui at 47.

24. Departmental policy guidance on the exercise of this discretion is contained in the Department’s 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.

25. At the hearing, the Tribunal spent some time discussing these issues with the applicant and the witness ([Ms A]). The applicant explained the circumstances how he came to be diagnosed with the [medical] condition. He said that he was healthy and free of the condition when he arrived in Australia. He said that he was first diagnosed in 2013, when he was working full-time in the nominator’s [business]. He said that the diagnosis caused him significant anxiety, and he embarked on treatment as recommended by his [clinicians]. [Details deleted].

26. The treatments were successful and on 15 October 2018 his treating specialist[noted] in her opinion[4] the applicant “[details deleted].”

    [4] At f 26 Tribunal case file

27. The applicant said at hearing that he now attends his clinic approximately [number] times a year or once every [few] months where he obtains [medication]. He says this is still provided [at no personal cost to him]. He says he has been told that although he will continue with monitoring, he is otherwise very healthy and his current diagnosis is “undetectable”. [details deleted].

28. The Tribunal discussed with the applicant his family circumstances. He lives alone in Australia and is currently not in a relationship. He has 2 [siblings], one of whom lives in [Country 1] and the other in [another country]. He says his parents both still live in [Country 1] and are separated. He says he regularly speaks to his mother but does not have a good relationship with his father with whom he is estranged. He says that his family is not aware of his [medical condition] and he does not intend to inform them for fear of criticism.

29. The Tribunal asked the applicant about the availability of medical treatment for [the medical condition] in [Country 1]. The applicant said that generic medication can be made available. He said however that were he to return, it would take many months for him to demonstrate his eligibility for the medication and it would also require him to travel to specific locations in that country in order for it to be dispensed. He said it is not like Australia and would be much more difficult for his treatment to continue with the same effect and at the same level as achieved in Australia. He said it would put his current good health at some risk because of the lack of services and difficulty in obtaining the medication.

30. In relation to his employment, the applicant said that he enjoys significant client support in his [workplace] where he has worked continuously since 2009. He said that he has not yet informed his employer (the nominator) of his condition, as he was initially fearful of the response, including that he might lose his employment. He said that if his visa application is successful, he will inform [her], and is confident of her support. In that regard he referred the Tribunal to a Statutory Declaration from the employer made 31 October 2018 where she states “I hold so much respect for [the applicant] who has been such a big part of my own journey as a business owner. If he were to leave Australia, noy only would I be very sad to see a friend and colleague go, but more overtly it would have a huge impact on my business. The risk of losing the large number of loyal clients [the applicant] has amassed over the years would most certainly hurt my business in a serious way that would potentially take years to re-build”. The applicant also relied upon a number of other Statutory Declarations from his clients over the past decade, and from his former partner.

31. The witness who appeared, [Ms A], gave strong support for the applicant as a hard-working person who also contributes to the community. She said that she regards him as family, whom she regularly sees both at his workplace and at their respective homes. She said that in the past she has offered the applicant financial assistance should he need it, and would also offer him accommodation and care, if it were required. She said she and her husband have formed a close family bond with the applicant. She said that she has been aware of his [medical condition] from the outset and is quite prepared to support him in the years ahead.

32. The applicant also referred the Tribunal to his volunteer work in the community. He supports [an organisation] where he volunteers his time. A letter from the [organisation]’s social media and consumer engagement officer, dated 12 October 2018, refers to the fact the applicant “has been an active contributor since he joined” and “seeks out opportunities to contribute to (the centre) where possible, including applying to represent our service on the high-level consumer council”.[5]

    [5] T case file at f 53.

33. The applicant also does voluntary work for the [local] [community]. The applicant said he works in the kitchen on Mondays for approximately 5 hour shifts, with a team of 6 other people, cooking and preparing food for homeless and disadvantaged people. He said he has been doing this for approximately 7 years. He also assists at [a] Christmas lunch where he is well known in the community. He says he enjoys this voluntary work and intends to continue it for as long as he can, and to contribute to awareness and education within the local community about [certain] issues in particular.

34. The Tribunal asked the applicant about his migration history and he stated that he has never had any issues either with the Department or with police or any other adverse experiences which might have brought him under notice. He says that he has made his life in Australia and at some point wants to start his own [business] and continue in his profession. He candidly confirmed it would not be impossible for him to return to [Country 1], or travel elsewhere, but as he has spent a large part of his life in Australia, it is his preferred destination and where he says he can make a significant contribution. He said he has no personal debts or credit cards and has accumulated approximately $46,000 in superannuation, is gainfully employed, and is able to financially support himself. He said he is not currently required to contribute towards his medications. The representative pointed to the fact that the cost of the applicant’s medications has actually reduced by approximately 12 ½%, since the first MOC opinion, and his expectation is that it will continue to decrease, and that the likely cost to the community will therefore be less than currently anticipated.[6]

    [6] Ibid at f 90

35. The applicant said that he now takes great care of his health and has no other issues of which he is aware. When asked if he had any other concerns, the applicant indicated he was worried that if he returned to [Country 1], it currently exhibits a resurgent homophobic attitude under the current government, and is an unsafe environment for LGBTI people and where he is likely to be discriminated. The applicant relied upon some recent media reports provided by him at the hearing concerning the current [Country 1] President.

36. The Tribunal has paid careful regard to the evidence obtained at hearing and to the guidance provided in the Procedures Advice Manual.

37. The Tribunal is satisfied the evidence discloses that the applicant has established a de facto family in Australia, as demonstrated by the witness [Ms A]. The applicant has no close ties with his family in [Country 1]. The Tribunal accepts the evidence of the witness and from the applicant that it would be difficult for him to return to [Country 1], once his medical condition was disclosed.

38. The Tribunal finds that the applicant has been extremely successful in his skilled occupation as a [Occupation 1] and has built a loyal and demanding clientele over a decade of experience in Australia. The Tribunal is satisfied that the nominator’s business would be adversely affected by the applicant’s departure, including other Australians who work in the business, which comprises [other staff]. The applicant has established himself as the principal [Occupation 1] in the business with the reputation for which the [business] has become known.

39. In relation to the significant costs and services to the Australian community anticipated by the MOC, the Tribunal is satisfied that the applicant is taking all reasonable steps to mitigate those costs by working hard in stable employment, maintaining his health and minimising where possible the costs incurred due to his treatments. The support of [Ms A] and other friends and associates of the applicant provide some limited comfort that should the need arise, he will have the benefit of that support over and above what might otherwise be a cost to the community, and the Tribunal finds this is a relevant circumstance in support of a waiver. The likelihood of “undue” costs to the Australian community is significantly reduced where “undue” is taken to mean “excessive” in circumstances where those costs are curtailed or even reduced, and cannot then be said to be “excessive”.

40. The Tribunal is also satisfied the applicant is contributing on a voluntary basis to community organisations as set out above, and will continue to do so. This will provide significant benefit to his local community and the research being continuously undertaken and monitored by his treating clinicians, and the Centre which he attends, will also benefit.

41. The Tribunal finds there are no other adverse factors which might weigh against the application, there being no migration history adverse to him and no other information on the Department’s file which might indicate a risk factor which would weigh against the application of the waiver. In addition, the Tribunal is satisfied that the applicant has established significant social and community ties in Australia, and that were he to return to [Country 1], he would not have the same high level of support and his health situation might in fact deteriorate rather than improve.

1. On the evidence available to the Tribunal, the applicant is currently experiencing good health, full-time employment and is a minimal cost to the community. The evidence is that the cost of the pharmaceuticals is currently met by the pharmaceutical companies themselves. The Tribunal is also mindful in this regard that the RMOC has supplemented his initial opinion of 8 February 2019, with the statement that “In my opinion, granting a visa to the above applicant for the assessed period of stay would not be likely to prejudice the access of an Australian citizen or permanent resident to healthcare or community services”.[7]

   [7] T case file at f 83

2. The Tribunal finds there are compelling circumstances in support of a waiver, including the benefits to the Australian community of the on-going business of the nominator which might otherwise be financially affected, and the applicant’s volunteerism, as outlined above. The Tribunal is also satisfied that there are compassionate circumstances flowing from the applicant’s long-established relationships in Australia over a 10 year period, particularly with the family of the witness, [Ms A], and with his local community with whom he has forged close ties.

3. Factors against applying the waiver include that the applicant does not vigorously press the fact that there is a personal threat to him were he to return to [Country 1]. Being a member of the LGBTI community may be a risk factor, but no cogent evidence has been produced or relied upon other than the anecdotal media reports, to illustrate any level of threat or risk to the applicant personally. The Tribunal does not place a great deal of weight on those media opinions. The fact the applicant’s family are all outside Australia and he lives alone here also carries some weight against exercising the waiver. The applicant’s profession it is fair to say is in limited supply in Australia, but would not be a reason preventing the applicant leaving. The occupation is one which the applicant himself recognises can be transported to most places outside Australia and he expects he would still be able to work as [Occupation 1] in [Country 1].

4. The Tribunal has considered these competing factors, and finds that taking into account the particular circumstances of this case, it is nonetheless satisfied that the factors in favour of applying the waiver outweigh those against not applying the waiver.

5. For these reasons, 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) may be waived subject to the applicant satisfying all other requirements for the visa.

6. 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.

   DECISION

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

   ·PIC 4007(2)(b) for the purposes of cl.186.224 of Schedule 2 to the Regulations.

   Alan McMurran

   
   

   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.