1615886 (Migration)

[2020] AATA 1280

1615886 (Migration) [2020] AATA 1280 (9 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1615886

COUNTRY OF REFERENCE:                   United Kingdom

MEMBER:Antonio Dronjic

DATE:9 April 2020

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:

·PIC 4007(1)(a) and (b) for the purposes of cl.186.224 of Schedule 2 to the Regulations; and

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

Statement made on 09 April 2020 at 10:16am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – health criteria – moderate intellectual impairment – significant cost to the Australian community – waiver of requirements – no ‘undue cost’ to Australian community – considerations of compassionate or other circumstances – capacity to mitigate costs – high-income earning capacity – substantial savings – occupational skills of the applicant – adverse impact on other family members – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.25A; Schedule 2, cl 186.224; Schedule 4, 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 21 September 2016 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 7 January 2015. The delegate refused to grant the visas as the first named applicant (now referred to 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 by the third named applicant (the first named applicant’s daughter – hereafter referred to as [the third named applicant]).

3. The primary decision records that [the third named applicant] was found by a Medical Officer of the Commonwealth (MOC) not to satisfy PIC 4007(1)(c)(ii)(A) based on moderate intellectual impairment.  The delegate decided not to waive the requirements of PIC 4007(1)(c) as he was not satisfied that the significant cost identified was outweighed by mitigating factors and/or compassionate and compelling circumstances.

4. The applicants applied for review of the primary decision on 28 September 2016 and provided a copy of the Department’s decision to the Tribunal.

   Background and history

5. [The third named applicant], at the time of application was a [age]-year-old child with moderate intellectual impairment. The MOC in their first opinion dated 7 April 2016 stated that the [third named applicant] did not satisfy sub-subparagraph PIC 4007(1)(c)(ii)(A).  Due to her permanent disability, [the third named applicant] would likely require health care or community services including special education services, state and Commonwealth disability services and residential care services, throughout her permanent stay in Australia.  The MOC concluded that these services would likely result in a significant cost to the Australian community in the areas of health care and/or community services.

6. The applicant submitted a health waiver application and on 7 April 2016, the MOC, having had regard to the health waiver, considered that [the third named applicant] would not meet the health requirement.  The estimated cost to the Australian community was assessed to be a total of $2,681,458, broken down as follows:

   ·Residential care services: $210,850;

   ·Commonwealth disability services: $977,814;

   ·State disability services: $1,344,000; and

   ·Special education services: $148,794.

7. On 7 April 2016, the Department (having had regard to the health waiver application) recommended that the health requirement not be waived.  The visa application was subsequently refused on 21 September 2016.

8. On 4 December 2019, the Tribunal sent a copy of the MOC opinion dated 7 April 2016 to the applicant, pursuant to s.359A of the Act, inviting him to comment on or respond to that information on or before 19 December 2019. The invitation noted that, pursuant to r.2.25A of the Regulations, the Tribunal must take an opinion of the MOC to be correct. With the same letter, the applicant was offered an opportunity to obtain a further MOC opinion and invited, pursuant to s.359(2) of the Act, to provide information in writing related to waiver provision in PIC 4007(2).

9. On 18 December 2019, the applicants’ representative wrote to the Tribunal indicating that the applicant wishes to obtain a further MOC opinion, enclosing the signed request and a copy of the Department’s receipt for payment of MOC fees. The representative requested that the MOC assessment be delayed until a further report concerning [the third named applicant]’s condition is provided in late January 2020. The representative inter alia submitted:

   As will be noted in our letter to the AAT dated 27 April 2017, it is the opinion of [Dr A] who is a leading Australian authority in this area, that the original opinion of a MOC was not correct and as a result the previous estimate of the likely cost to the Australian Community is also not correct. For the reasons provided by [Dr A], it is his opinion that granting a 186 visa to [the third named applicant] will not result in undue cost to the Australian community or undue prejudice to health care or community services of an Australian citizen or permanent resident. In this regard it should also be noted that the applicant has arranged for his daughter to have a follow up consultation with [Dr A] as it is now more than 2 years since the last consultation but unfortunately the first available appointment is on 21 January 2020. In fairness to the applicant we request that before the MOC provides a further opinion on this case that the MOC waits for the updated report from [Dr A] in January 2020.

10. On 24 January 2020, the Tribunal received a copy of the latest report from [Dr A].

11. On 31 January 2020 the new MOC opinion assessed that [the third named applicant] did not satisfy PIC 4007(1)(c)(ii)(A) because the now [age]-year-old applicant’s permanent, moderate cognitive impairment would likely result in significant cost to the Australian community in areas of health care and/or community services as listed below:

    State disability services         $190,200

    Special education services     $26,000

    Total cost   $216,200

12. The MOC opinion further stated that granting a visa would not be likely to prejudice access to an Australian citizen or permanent resident to health care or community services.

13. On 3 February 2020, the Tribunal sent a copy of the MOC opinion dated 31 January 2020 to the applicant, pursuant to s.359A of the Act, inviting him to comment on or respond to that information on or before 17 February 2020. The invitation noted that, pursuant to r.2.25A of the Regulations, the Tribunal must take an opinion of the MOC to be correct. With the same letter, the applicant was invited, pursuant to s.359(2) of the Act, to provide information in writing related to waiver provision in PIC 4007(2).

14. On 24 February 2020, after being granted an extension of time, the applicants’ representative provided legal submissions addressing the provision for health waiver under PIC 4007(2)(b), stating reasons why the potential ‘significant cost’ to the community arising from [the third named applicant]’s condition will not be ‘undue’ and why a health waiver should be granted in the circumstances of this case. It was further submitted that [the first named applicant] and family satisfy all other criteria for the grant of 186 visas and that the nomination in relation to the Subclass 186 visa application was approved by the Department on 9 February 2015 and is still valid.

15. The representative referred the Tribunal to the further opinion provided by [Dr A], who has been treating [the third named applicant] since 2017, that [the third named applicant] is a fit and healthy, active young woman who does not have any disease that warrants medical attention. The applicant submitted a range of documentary evidence in support of his claim that there will not be undue cost to the Australian community and that he has the capacity to mitigate the estimated costs identified by the MOC (Tribunal folios 176 to 284).

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. 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.

18. The third named applicant in this case has been found to have a permanent, moderate cognitive impairment.

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

19. 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.

20. 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.

21. 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.

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

23. 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 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?

24. 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.

25. The Tribunal has reviewed the most recent MOC opinion dated 31 January 2020 and is satisfied that it identifies the condition to which the public interest criterion has applied, and the form or level of the condition suffered by [the third named applicant].  The Tribunal is further satisfied that the MOC applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition, and that the MOC considered the correct period.

26. Accordingly, the Tribunal is therefore bound to accept the MOC opinion of 31 January 2020 as correct, and that the applicant does not meet PIC 4007(1)(c).

27. Accordingly, the first named applicant cannot meet cl.186.224 unless the requirements of PIC 4007(1)(c) are waived under PIC 4007(2).

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

28. 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: PIC 4007(2).

29. 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. 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.

30. The Tribunal accepts the MOC's assessment that it is not likely that granting a visa to [the third named applicant] for the assessed period of stay would prejudice access to health care or community services for an Australian citizen or permanent resident.  The Tribunal therefore accepts that there is no undue prejudice in this case: PIC 4007(2)(B)(ii).

31. In relation to undue costs, it is not disputed that the MOC's assessed costs of $216,200 exceeds the amount of $49,000 set out in the Department's policy guidelines (PAM3 as of 1 July 2019) on 'significant costs' for the purposes of PIC 4007(1)(c).  The Tribunal therefore turns to consider whether they are 'undue costs' or not.

32. Based on the evidence before it the Tribunal finds as follows:

    ·The family has a demonstrated capacity to mitigate the costs of [the third named applicant]’s care by providing documentary evidence of the high-income earning capacity of the applicant and his wife and substantial savings held in Australia;

    ·[The first named applicant] holds a [Qualification 1] from [Country 1] and a [Qualification 2] from [Country 2]. He is a [Occupation 1] from [Professional Body 1] and a [Occupation 1] from [Professional Body 2]. [The first named applicant] has been nominated in his skilled occupation of [Occupation 1] and since September 2011 he has performed the same occupation for his only employer, [Company 1]. [Company 1] is a Western Australian local business that is involved in [specified work and activities] in WA and East Coast. [The first named applicant] has worked in regional Australia since arriving to this country. His current annual base salary is $272,700 and according to his tax assessment notice of 30 June 2019, his gross annual income was $327,383;

    ·[The second named applicant] holds a [Qualification 3] from [Country 1] and an [Qualification 4] from [Country 2]. She is a [Occupation 2] with [Professional Body 3] and [Professional Body 4]. [The second named applicant] is currently working as a [Occupation 2] at [employer] which has been part of the WA [government department] since [2016] and is [working] at several [workplaces]. Her current salary is $40,1578 as evidenced by her latest tax assessment notice from ATO;

    ·[The third named applicant] has completed year [level] at [School 1] and is currently enrolled at [an education provider] in Western Australia to study [a] course [in Discipline 1]. She has also been accepted in a work placement at [a] retail shop. The Child and Adolescent Health Services from the Government of WA has issued a Discharge letter for [the third named applicant], confirming that the services they provided have concluded. She is not taking any medication as stated by her GP;

    ·[The fourth named applicant] successfully completed year [level] at [School 2] in 2019. She is currently attending year [level] at [School 2] in 2020;

    ·[The first and second named applicant] also have a share stock portfolio amounting to the sum of [amount] as of 13/02/2020 and various bank accounts, including the children’s bank accounts, with a total balance of [amount]; and

    ·The family has been living in Australia for the past eight years. They established their life in Australia and the children have spent most of their educational and formative life in Australia. [The first named applicant] has a blood brother [living] and working as a [Occupation 2] in Sydney, NSW.

33. Having regard to the judicial authority of Bui and the policy guidelines set out in PAM3, the Tribunal is persuaded that, in this case, there are considerations of compassionate and compelling circumstances which are relevant to its exercise of the waiver provisions.  While noting the Tribunal cannot be bound by Department policy it nonetheless finds its guidance in this matter useful.  In particular, in relation to the considerations set out in PAM3, the Tribunal found the evidence before it to be persuasive in relation to: the adverse impact on other family members; the occupational skills of the applicant; the assets and financial resources the family has to mitigate the costs of [the third named applicant]’s care; and the support available from family all to be influential.  In particular the Tribunal is satisfied that the applicant has a demonstrated financial capacity and willingness to mitigate the costs of services and/or care for [the third named applicant]; that the applicant has skills and experience in a niche area of [Occupation 1] which would be highly desirable to keep within the Australian business community; that the applicant is and has been working in regional Australia since his arrival; and that the impact on [the fourth named applicant] would be considerably adverse if she was to cease her primary education in Australia.

34. For these reasons – namely the financial capacity of the applicant to mitigate the likely costs of [the third named applicant]’s condition, the occupational skills of the applicant and the support available to them from family – the Tribunal finds that the costs to the Australian community of [the third named applicant]’s condition are significant, but not undue.

35. 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 PIC4007(2)(b).  Therefore PIC 4007(1)(c) may be waived subject to the applicant satisfying all other requirements for the visa.

1. 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

2. 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:

   ·PIC 4007(1)(a) and (b) for the purposes of cl.186.224 of Schedule 2 to the Regulations; and

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

   Antonio Dronjic

   
   

   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.