1712150 (Migration) - [2020] AATA 771

1712150 (Migration) [2020] AATA 771 (7 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1712150
COUNTRY OF REFERENCE:                   United Kingdom
MEMBER:Nicola Findson
DATE:7 February 2020
PLACE OF DECISION:  Perth
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(2)(b) for the purposes of cl.186.224 of Schedule 2 to the Regulations.

Statement made on 07 February 2020 at 12:30pm
CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – health criteria – Downs Syndrome – waiver of requirement – ‘undue’ cost or prejudice to the Australian community – compelling or compassionate circumstances – financial and social capacity to defray costs – valued and specialised skills – strong family support – contribution to the community – best interests of children – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
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 30 May 2017 to refuse to grant the applicants Employer Nomination (Permanent) visas under s.65 of the Migration Act 1958 (the Act).
The visa applicants, who are nationals of the United Kingdom, applied for the visas on 11 March 2016. The delegate refused to grant the visas on the basis that the applicant did not meet cl.186.224 of Schedule 2 to the Regulations, because the delegate found that [the first-named applicant] failed to meet the criteria in cl.186.224(2) which requires that each member of the family unit of the applicant, who is an applicant for a Subclass 186 visa, satisfies public interest criterion 4007 of Schedule 4 to the Regulations. In particular, the delegate found that [the third named applicant] was assessed by a Medical Officer of the Commonwealth (MOC) as not satisfying paragraph 4007(1)(c) which requires, relevantly, that the applicant is free from a disease or condition in relation to which a person who has it would be likely to require health or community services and the provisions of the health care or community services would be likely to result in a significant cost to the Australian community in the areas of health care and community services. The delegate decided not to the waive the requirements of paragraph 4007(1)(c) as they were not satisfied the cost identified by the MOC was outweighed by mitigating factors and/or compassionate and compelling circumstances.
The applicants applied for review of…

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 771
Decision Date: 7 February 2020

CaseChat Overview and Summary

This matter concerned an application for a Subclass 186 Employer Nomination (Permanent) visa, Temporary Residence Transition stream, made by the first-named applicant on behalf of himself and his family. The dispute arose when the third-named applicant, who has Downs Syndrome and mild intellectual impairment, was assessed by a Medical Officer of the Commonwealth as not meeting health criterion PIC 4007(1)(c)(ii)(A) due to the likely significant cost of $2,185,000 to the Australian community for healthcare and community services over her lifetime. The delegate refused to waive this criterion, finding that the identified cost was not outweighed by mitigating factors or compelling and compassionate circumstances. The decision was reviewed by the Tribunal.

The legal issues before the Tribunal were whether the significant cost to the Australian community associated with the third-named applicant's condition was "undue," and whether there were compelling or compassionate circumstances that warranted a waiver of the health criterion under PIC 4007(2)(b). The Tribunal was required to consider the applicants' financial and social capacity to contribute to any costs, the third-named applicant's potential contribution to the community, and the best interests of any children involved.

The Tribunal reasoned that while the MOC's assessment of significant cost was accepted, the question of whether that cost was "undue" required a broader consideration of the applicants' circumstances. The applicants provided substantial evidence demonstrating their strong financial capacity through secure employment, private savings, and superannuation, indicating they could offset potential costs. Furthermore, they presented evidence of their deep integration into the Australian community, their strong family support network, and the third-named applicant's own contributions and positive relationships. The Tribunal also noted the strong familial support, including a niece qualified in special needs education who regularly cared for the third-named applicant.

Consequently, the Tribunal remitted the application for reconsideration by the Minister. The Tribunal directed that the first-named applicant met PIC 4007(2)(b) for the purposes of clause 186.224 of Schedule 2 to the Regulations, indicating that the waiver provisions were likely to be satisfied upon further assessment.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.Background [The first-named applicant] is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of [Occupation 1]. This stream is designed for Subclass 457 visa holders who have worked for their employer for the past two years, and that employer has offered them a permanent position in the same occupation. The delegate’s decision records that on 1 February 2017, [the third-named applicant] was assessed by a Medical Officer of the Commonwealth (MOC) as not meeting PIC 4007(1)(c)(ii)(A). The MOC opinion set out that [the third-named applicant] was a [age] year old person with a mild intellectual impairment in the context of Downs Syndrome. Due to her permanent disability, [the third-named applicant] would likely require health care or community services including special education services, state disability services and Commonwealth disability services, throughout her permanent stay in Australia. The MOC concluded that these services would likely result in a significant cost to the Australian community. The health waiver information, forming part of the MOC’s opinion and provided to the Tribunal details that the estimated cost to the Australian community of the services that [the third-named applicant] is likely to access would be $2,185,000. The MOC also outlined that in their opinion, granting a visa to [the third-named applicant] for the assessed period of stay would not be likely to prejudice the access of an Australian citizen or permanent resident to health care or community services. As set out above, the delegate accepted the opinion of the MOC and therefore found that PIC 4007(1)(c)(ii)(A) was not met. After considering further information provided by the applicants relevant to the waiver provisions, and after receiving a recommendation from the Department’s Health Policy Section, the delegate also decided not to waive PIC 4007(1)(c), as she was not satisfied that the significant cost identified was outweighed by mitigating factors and/or compassionate and compelling circumstances. PIC 4007 is a ‘one fails all fail’ criteria. The Tribunal has been provided with detailed written submissions and accompanying material prepared on behalf of the applicants by their migration agent, including:·Statutory declarations sworn by [the first and second-named applicants]·Speech pathology report dated 7 May 2018 ·Paediatrician report dated 30 April 2018 ·Employment reference letters for [the first and second-named applicants]·Australian Tax Office Notices of assessment for the two most recent financial years·Evidence of UK Pension Plan for [the first and second-named applicants]·Australian Superannuation information in relation to [the first and second-named applicants]·Private health insurance policy information·Life insurance policy information·School reports for [the third-named applicant] and the fourth named applicant·A bundle of letters of support from family members, friends, and community groups.

Evidence

Evidence Before The Court

It is submitted that the applicants are closely involved with sporting groups as well as many community groups in their local area, including [a named sports program], [a hobby class], [Support Network 1], [Support Network 2] and [Support Network 3] since 2012. It is noted that [the third-named applicant] received [an award] in 2018 from the [Lions Club] – which evidences the contribution she and her family have made to their local community. Documentary evidence in support of these claims has been provided to the Tribunal.Evidence given at hearing At hearing, the Tribunal discussed with the applicants the requirements of the law and the consequences of relying on the MOC opinion of 17 January 2020. [The first-named applicant] confirmed that he and his family came to Australia [in] March 2012, as holders of subclass 457 visas, which they held until they made the visa application the subject of this review. He said they applied for the visa on the basis of his employment as a [Occupation 1] with his company, [Company 1]. The Tribunal invited [the first-named applicant] to give evidence in relation to the question of whether the assessed costs associated with [the third-named applicant]’s condition are undue as well as evidence to assist the Tribunal in determining whether the health criteria (in PIC 4007) should be waived. [The first-named applicant] confirmed that both he and his wife have private savings, superannuation, and full-time secure employment. He indicated that based on their current income, they are in a position to offset the potential costs associated with [the third-named applicant]’s condition. [The first-named applicant] indicated he has worked as a [Occupation 1] since his arrival in Australia. He said his company has worked in collaboration with [Company 2] – a local Australian owned [company] – since that time, providing [specified] services. [The second-named applicant] has forged a career at [named local government area]. She told the Tribunal that she commenced with her employer in 2013, and is currently working as a [Occupation 2]. In her role, she develops, implements and evaluates [various] initiatives relevant to the City’s [public safety] activities. [The first-named applicant] indicated to the Tribunal that because they have a child with additional needs, the support of family and friends is important to them. [The first and second-named applicants] were both born in [Country 1], but renounced this citizenship in 2005, when they became nationals of the United Kingdom. [The first-named applicant] told the Tribunal that he and his wife have parents remaining in [Country 1], but no family remaining in the United Kingdom. [The second-named applicant] has one [sibling] who lives in [Country 2]. [The first-named applicant] has one sibling, his brother. He and his family came to Australia shortly before the applicants, and have recently become Australian citizens by grant. [The first-named applicant] said their families are particularly close, having almost always lived close by in both the United Kingdom as well as Australia. In addition to the emotional support the families provide each other, specific mention was made of [the first-named applicant]’s niece – [Ms D] – who has attained qualifications in Education Support and who works with children with special needs. As such, she has provided support and care to [the third-named applicant] on a regular basis since 2012, and the two have an extremely close bond. [Mr B], and [Ms C] also gave evidence of a close, supportive relationship between their family and the applicants.

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(2)(b) for the purposes of cl.186.224 of Schedule 2 to the Regulations.Nicola FindsonMemberATTACHMENTMigration 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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