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

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).
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]).
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.
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
[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…

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: [2020] AATA 1280
Decision Date: 9 April 2020

CaseChat Overview and Summary

This matter concerned an application for review of a decision to refuse a Subclass 186 Employer Nomination (Permanent) visa. The primary issue revolved around the third applicant, a child with moderate intellectual impairment, and whether she met the health criteria stipulated in Public Interest Criterion (PIC) 4007 of the Migration Regulations 1994. The Medical Officer of the Commonwealth (MOC) had assessed that the child's condition would likely result in significant costs to the Australian community, estimated at over $2.6 million, for healthcare and community services, including residential care, Commonwealth and state disability services, and special education.

The legal issues before the Tribunal were whether the third applicant satisfied PIC 4007(1)(a), (b), and (c), and if not, whether the waiver provision under PIC 4007(2) should apply. PIC 4007(1)(c) requires an applicant to be free from a disease or condition that would likely require health care or community services resulting in significant cost to the Australian community or prejudice access to such services for Australian citizens or permanent residents. The Tribunal was required to consider the MOC's opinion, which, under regulation 2.25A, is generally taken to be correct, but the Tribunal must be satisfied that the MOC applied the correct test.

The Tribunal reasoned that while it must take the MOC's opinion as correct, it also needed to be satisfied that the MOC had applied the correct statutory criteria. The Tribunal noted that the applicant had sought to provide further expert evidence regarding the potential costs and had requested a delay to obtain an updated report from a specialist. Given the complexity of assessing the MOC's opinion and the potential for further evidence to impact the cost assessment, the Tribunal concluded that the matter should be remitted for reconsideration. The Tribunal directed that the first applicant met PIC 4007(1)(a) and (b), and PIC 4007(2)(b) for the purposes of the visa criteria.

Orders

Orders of the court

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Background

Background to the litigation

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 [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. 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. 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. 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). 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.

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 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))? 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. 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. 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 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? 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.

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 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 DronjicMemberATTACHMENTMigration 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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