1711132 (Migration) - [2017] AATA 2822

1711132 (Migration) [2017] AATA 2822 (6 December 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1711132
MEMBER:Catherine Carney-Orsborn
DATE:6 December 2017
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Residence) (Class VB) visa.
Statement made on 06 December 2017 at 2:08pm

CATCHWORDS
Migration – Skilled (Residence) (Class VB) visa – Subclass 885 (Skilled - Independent) – Requirement to be free of certain diseases or conditions – Organ transplant – Opinion of Medical Officer of the Commonwealth – Whether disease or condition likely to result in significant cost to Australian community – Validity of opinion – Request for referral for ministerial intervention
LEGISLATION
Migration Act 1958, ss 65, 351, 360
Migration Regulations 1994, r 1.03, r 1.16AA, r 2.25A, Schedule 2, cl 885.224, Schedule 4, PIC 4005
CASES
Haque & Ors v Minister for Immigration and Border Protection [2015] FCCA 1765
Robinson v MIMIA (2005) 148 FCR 182
Ramlu v MIMIA [2005] FMCA 1735
Blair v MIMA [2001] FCA 1014
JP1 & Ors v MIAC [2008] FMCA 970
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 [in] 2015 to refuse to grant the applicant a Skilled (Residence) (Class VB) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa [in] 2009. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.885.224 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4005 of Schedule 4 to the Regulations was not met.
In March 2015 the applicant sought review of that decision at the Tribunal. On the 9 May 2016 a differently constituted Tribunal affirmed the decision of the Department. In [2016] the applicant appealed the Tribunal’s decision to the Federal Court.
[In] 2017 the matter was remitted by consent. The following reasons for the remittal by consent were recorded.
The Tribunal's decision dated 9 May 2016 (AAT [case number]) was affected by jurisdictional error. In particular, the Tribunal failed to comply with section 360 of the Migration Act 1958 (Cth)(Act).
In circumstances where following a hearing on 30 March 2016, the Tribunal reviewed an opinion from the Review Medical Officer of the Commonwealth (RMOC) dated [in] April 2016 (Court Book 205-207) and the applicant's representative in his correspondence to the Tribunal dated [in] May 2016 took issue with the legal validity of the RMOC opinion, the Tribunal was required by section 360 of the Act to invite the applicant to a further hearing to give evidence and present arguments on the RMOC opinion: Haque & Ors v Minister for Immigration and Border Protection [2015] FCCA 1765 at…

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.

Continue reading 1711132 (Migration)

Details

AGLC: 1711132 (Migration) [2017] AATA 2822
Case: [2017] AATA 2822
Decision Date: 6 December 2017

CaseChat Overview and Summary

This matter concerned an application for a Skilled (Residence) (Class VB) visa, Subclass 885, by an applicant who had undergone an organ transplant in 2010. The dispute centred on whether the applicant met Public Interest Criterion (PIC) 4005, which requires applicants to be free from certain diseases or conditions that may impact the Australian community. The decision was made by the Tribunal.

The primary legal issue before the Tribunal was to determine if the applicant satisfied PIC 4005, specifically subclause (1)(c)(ii)(A), which mandates that a disease or condition must not be likely to require health care or community services that would result in significant cost to the Australian community. The Tribunal was required to consider the opinion of the Medical Officer of the Commonwealth (MOC) regarding the applicant's condition.

The Tribunal reasoned that under regulation 2.25A, where an opinion of a MOC is required for a permanent visa application, that opinion must be taken as correct. The MOC had opined that a hypothetical person with the applicant's condition, of the same severity, would likely require health care or community services resulting in significant cost to the Australian community. As the applicant had applied for a permanent visa, the exclusion provision in PIC 4005(3) did not apply. Consequently, the applicant had failed to satisfy PIC 4005(1)(c)(ii)(A).

The Tribunal affirmed the decision not to grant the applicant the Skilled (Residence) (Class VB) visa.

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 decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this review is whether the visa applicant meets Public Interest Criterion (PIC) 4005 as required by the criteria for the grant of the visa. Public Interest Criterion 4005, 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. The applicant in this case had [an organ] transplant in 2010. The Medical Officer of the Commonwealth found that a hypothetical person with this condition, as the same severity as the applicant, would be likely to require health care or community services during the condition specified above and that the provision of these health care 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. The condition is permanent.Is the applicant free from the relevant diseases or conditions (PIC 4005(1)(a), (b), (c))? Public interest criterion 4005(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. Public interest criterion 4005(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 certain temporary visas, the applicant is excluded from the requirement to be free from a disease or condition likely to result in significant cost in the areas of health care and community services: PIC 4005(3). As the applicant in this case has applied for a permanent visa, the exclusion provision in PIC 4005(3) does not apply and the applicant in this case must satisfy PIC 4005(1)(c)(ii)(A). In determining whether a person meets PIC 4005(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?

Decision

Reasons for decision

As the applicant has not satisfied the requirements of PIC 4005, the Tribunal must affirm the decision under review.DECISION The Tribunal affirms the decision not to grant the applicant a Skilled (Residence) (Class VB) visa.Catherine Carney-OrsbornMemberATTACHMENTMigration Regulations 1994Schedule 44005(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)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 (2); 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.(2)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.(3)Sub-subparagraph (1) (c) (ii) (A) does not apply if:(a)the applicant would not be eligible for the provision of the health care or community services; and(b)the ineligibility would be due to the temporary visa for which the applicant is applying being of a particular subclass; and(c)the subclass is not specified by the Minister in an instrument in writing made under subparagraph (2) (b) (ii).

Ratio Decidendi

Legal Principle Established

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