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

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).
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.
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].
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.
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.
The applicant was represented in relation to the review by his registered migration agent.
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…

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 3500
Decision Date: 30 April 2019

CaseChat Overview and Summary

This matter concerned an application for an Employer Nomination (Permanent) visa, Subclass 186, by an applicant who had been diagnosed with a medical condition. The dispute before the Tribunal was whether the applicant met Public Interest Criterion (PIC) 4007, which relates to health requirements for visa applicants.

The primary legal issue before the Tribunal was to determine if the applicant was free from diseases or conditions that could pose a threat to public health or community services in Australia, as stipulated by PIC 4007(1)(a), (b), and (c). The Tribunal also considered whether the waiver provisions under PIC 4007(2) were applicable, given the applicant's permanent visa application. The Tribunal was required to consider the opinions of a Medical Officer of the Commonwealth (MOC) in its determination.

The Tribunal reasoned that while the applicant had a diagnosed medical condition, the specific requirements of PIC 4007(1)(a), (b), and (c) needed careful assessment, particularly in light of the MOC's opinions. The Tribunal noted that for permanent visas, the exemption in PIC 4007(1B) did not apply. The Tribunal ultimately concluded that the matter should be remitted for reconsideration, directing that the applicant met PIC 4007(2)(b) for the purposes of clause 186.224 of Schedule 2 to the Regulations, implying that the waiver provision was considered favourably in relation to the potential cost to the Australian community.

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

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.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.Alan McMurranMemberATTACHMENTMigration 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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