1712150 (Migration)

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 the delegate’s decision on 8 June 2017, and provided to the Tribunal a copy of the delegate’s decision, for the purpose of the review.
The applicants appeared before the Tribunal on 28 January 2020 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A], a representative of the employer of [the second-named applicant], [the first-named applicant]’s brother, [Mr B], and [the first-named applicant]’s sister-in-law, [Ms C].
The applicants were represented in relation to the review by their registered migration agent, who attended the hearing by telephone.
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.
During the review period, on 1 July 2019, the Department updated its policy in relation to MOC assessments. Relevantly, the new policy:
·raised the threshold level for ‘significant costs’ from AUD$40,000 to AUD $49,000 for all cases; and
·for permanent and provisional visa applicants only who have a permanent condition, reduced the assessment period from lifelong costs to costs for a maximum of ten years.
Given the time that had lapsed since the delegate’s decision, and on the basis of these policy changes, a further opinion for [the third-named applicant] by a Review Medical Officer of the Commonwealth (RMOC) was sought.
On 17 January 2020, a RMOC opinion was received recording that [the third-named applicant] is a now [age] year old person with a permanent, moderate cognitive impairment in the context of Downs Syndrome. The MOC formed the view that a hypothetical person in Australia with the same condition as [the third-named applicant], and at the same severity, would be likely to require community services including but not limited to special education and state disability services, and that the provision of these services would be likely to result in a significant cost to the Australian community in the areas health care and/or community services. An updated cost breakdown was provided as part of the opinion. The estimated total cost was $324,200. The MOC concluded that granting a visa to [the third-named applicant] for the assessed period would not be likely to prejudice the access of an Australian citizen or permanent resident to health care or community services.
On 21 January 2019, the Tribunal wrote to the applicants, pursuant to s.359A, inviting comment on information that could be the reason or part of the reason for affirming the decision under review, being the adverse RMOC opinion for [the third-named applicant] and the estimated total cost breakdown.
On 22 January 2020, the applicants’ representative acknowledged the MOC’s opinion as being determinative in relation to meeting the relevant health criteria, and the assessment of the likely cost to the community. Various supporting documents were also provided to the Tribunal in support of the following claims.
The representative submitted that the MOC opinion may approximate a worst-case scenario, and that in the applicant’s case the cost to the community is not undue because of her ability to obtain gainful employment in the future as well as the familys’ ability to offset potential costs, by their skilled employment in a regional area of Western Australia, savings, current and future involvement and ties to the community, their superannuation and private health insurance contributions.
With respect to compelling circumstances, the representative submits that [the first and second-named applicants] will be able to offset costs through their employment. Their skills, qualifications and employment background are discussed. It is conservatively calculated, on the basis of their current salaries of AUD$84,240pa and AUD$67,000pa respectively, that both [the first and second-named applicants] (in addition to the superannuation already accumulated since 2012) will make future taxation contributions of at least $578,347 over the remaining years of their professional careers. It is submitted that the applicants bought the proceeds from the sale of their property in the United Kingdom – approximately AUD$40,000 - when they arrived in Australia in 2012. It is also submitted that both [the first and second-named applicants] hold UK pensions, which to date have been credited with contributions in the amount of AUD$25,000 and AUD$7800 respectively.
In addition, the representative submits that the MOC costing for state disability services would probably not be realised. The submission sets out that [the first and second-named applicants] have been committed to developing [the third-named applicant]’s skills to enable her to live independently, and that they have the financial and social capacity (from family, friends and local support services) to support their daughter to do so. [The third-named applicant] has been assessed at the lower end of the spectrum costing due to her excellent health prognosis and while it is likely that she will be able to live in private accommodation in the future, with some limited degree of support, it is anticipated that she will continue to live with her parents well in to the future so that any costs for accommodation support would continue to be borne by the family. [The third-named applicant] does currently use speech and language and OT therapies, which her parents access privately, and that this private cover will be maintained in the future.
The representative also submits there are compassionate reasons why the health criteria should be waived. It is submitted, in the context of the Convention on the Rights of the Child, that the family have been living in Australia since March 2012 – for [the third-named applicant] and her younger brother ([age] year-old [fourth-named applicant]) this equates to the majority of their lives – and that they would suffer extremely negative effects on their emotional and psychological wellbeing if they were to be removed from their community here in Australia. In addition, it is submitted that [the third-named applicant] has an established treatment plan and care arrangements in Australia; has made significant progress towards a sufficient level of independence in the future; and that to uproot her from this extensive support network would have a seriously negative impact on her. It is also submitted that [the first-named applicant] and his family will suffer significant financial detriment if they are forced to depart Australia.
The representative asserts that the applicants make a significant contribution to their community; have established family, professional and social ties in Australia, and that refusing the visa would impact on Australian citizens. [The first-named applicant]’s brother, as well as his wife and children, who are Australian citizens, have an extremely close relationship with the applicants. The applicants also have a large support network of extended Australian citizen family members as well as long-time friends and colleagues. Several letters have been provided in support of this application.
It is submitted that both [the first and second-named applicants] have relevant qualifications and a strong work history within a professional field that enable them to make a significant contribution to the Australian economy. With [the first-named applicant]’s current skills and occupation listed on the current Consolidated Skills Occupation list, it is submitted that [the first-named applicant]’s experience as a [Occupation 1] has enable him to develop skills that are currently in high demand in the present Australian workforce. Similarly, [the second-named applicant]’s role as a [Occupation 2] is included in the current combined list of eligible skilled occupations. It is submitted that there is a great demand for [the second-named applicant]’s skills and expertise not only within the [specified local government area], but also within the wider Australian community.
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.
In addition, [the first-named applicant] told the Tribunal that his family had many close friends and colleagues as well as connections in their local community. He gave evidence of their activities in the community, including with [a sports program], [a hobby class], [Support Network 1], [Support Network 2] and [Support Network 3]. [The first-named applicant] also indicated to the Tribunal he is involved in the Committee of his local [sports] Club and plays regularly at competition level; he is a member of [a specified community organisation], having previously [been associated with related activities] in [Country 1]; and that his family had recently become involved in [a] program for children with disabilities.
The Tribunal was told that [the fourth-named applicant] is currently in Year [level] at school. The evidence reflects he a promising young man who does well at school and who is fiercely protective of [the third-named applicant]. [The first and second-named applicants] indicated that both [the fourth-named applicant] as well as [the third-named applicant] are currently actively involved in their schools and local community and would continue to make valuable contributions to Australia.
There was some discussion on the speculative nature of the assessed needs of [the third-named applicant] into the future, and as a consequence the costs associated with her healthcare. [The second-named applicant] told the Tribunal that she did not anticipate [the third-named applicant] requiring supported accommodation in the future. She said the family was doing everything possible to incorporate learning opportunities in to [the third-named applicant]’s everyday life to enable her to live independently in the future. She also confirmed their financial and social capacity would allow [the third-named applicant] to live in private accommodation.
[The second-named applicant] told the Tribunal they also have private health insurance and this mitigates some of the costs associated with [the third-named applicant]’s condition. She said that [the third-named applicant] undergoes speech therapy and their health insurance meets part of these costs.

[The second-named applicant] told the Tribunal that she is determined to establish [a social enterprise] to provide people with disabilities in their local area, including [the third-named applicant], with gainful employment. She indicated that realising this dream was very much on her radar, and given her links with local government, she had started having conversations and making inquiries to enable this idea to happen.
[The first and second-named applicants] both confirmed that they had complied with all past and present visa conditions.
[The first-named applicant] indicated to the Tribunal that his family have settled in [City 1] and consider Australia to be their home. He and his wife are hard-working, have established their careers here and the children have spent the majority of their lives here. He reiterated that each family member is an active and contributing member of their local community and they have developed a strong support network of family and friends. He said that having to return to a country where they no longer have any family, professional or personal ties, and in circumstances where they would suffer a great financial loss given the significant investment made to relocate to Australia, would be devastating for each of them.
The Tribunal took evidence from [Ms A], who is [the second-named applicant]’s direct Manager at the [local government area]. She told the Tribunal that [the second-named applicant]’s current role is a crucial position within an area of great need in their local government. She said [the second-named applicant]’s role is particularly unique to the [their local government] and its constituency. She said [the second-named applicant] is committed to her role; shows skills of someone who wants to achieve in her role (including undertaking a [qualification]); and cares about the community in which she resides. She told the Tribunal that it would be a huge challenge to get someone to the calibre of [the second-named applicant] if she ever had to leave her position.
Assessment of the evidence
The issue in this review is whether [the third-named 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.
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?
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.
The Tribunal has reviewed the most recent opinion dated 17 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]. In addition, the Tribunal is satisfied that the MOC applied the statutory criteria by reference to a hypothetical person who suffers from the same form or level of the condition, and that the MOC considered the correct period.
Accordingly, based on the opinion of the MOC, the applicant does not satisfy PIC 4007(1) (c).
Should the requirements of PIC4007(1)(c) be waived?
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: 4007(2).
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.
The Tribunal has considered the extensive amount of evidence relating to the circumstances of the applicants. The Tribunal has considered all the evidence before it, including the written documentation provided to the Department and to the Tribunal, and the oral evidence provided at the hearing. The Tribunal has formed the view that the applicants were truthful and persuasive.
The Tribunal has taken into account all of the evidence before it in its consideration of whether the requirements of PIC 4007(1)(c ) should be waived. In doing so the Tribunal is aware that, on the face of it, the sum of $324,200 is significantly less than $2,185,000 - the amount set out in the previous MOC assessment - although it is still high. However, for the following reasons the Tribunal has concluded that the granting of the visa would be unlikely to result in ‘undue cost’ to the Australian community.
The Tribunal has considered the submission that the RMOC costing for state disability services will probably not be realised. The Tribunal notes that [Dr E] of the Paediatric Department at [Hospital 1] in a letter of support has stated that [the third-named applicant] has learning difficulties, but no taxing medical issues that require intensive support, and that “her health requirements are not significantly different as compared to any other paediatric patient”. The Tribunal also notes that [the first and second-named applicants] are committed to developing [the third-named applicant]’s skills to enable her to live independently and that they have the financial and social capacity to support their daughter to live in private accommodation in the future. A letter of support from [the third-named applicant]’s speech pathologist as well as [the third-named applicant]’s most recent school report confirm that [the third-named applicant] is progressing well and continuing to develop and consolidate her skills towards independence. The evidence before the Tribunal indicates that the applicants have a great deal of support from family, friends and community groups. The Tribunal also observes that in the time the applicants have been in Australia, [the third-named applicant] has accessed speech therapy, and all of these costs have been borne by private health insurance and [the first and second-named applicants]. The Tribunal is satisfied that these circumstances indicate that the actual cost of [the third-named applicant]’s state disability services will be lower than that of a hypothetical person.
The Tribunal has considered the applicants ability to defray any costs to the Australian community. The evidence before the Tribunal is that both [the first and second-named applicants] have been consistently employed since arriving in Australia, and have savings as well as superannuation. The Tribunal considers that the ability of [the first and second-named applicants] to mitigate [the third-named applicant]’s costs weigh heavily in favour of finding that the waiver provisions are met in this case.
The Tribunal has also considered the circumstances surrounding the applicants’ skills and employment and their actual and personal contribution to Australia. The Tribunal accepts, on the basis of the information before it, that both [the first and second-named applicants] are qualified and skilled in occupations in high demand in Western Australia. The position of [Occupation 1] is on the current Consolidated Skills Occupation list. In addition, the role of [Occupation 2] is included in the current combined list of eligible skilled occupations.
The Tribunal also accepts that the applicants have already made a valuable contribution to Australia through their employment here and have the potential to continue to do so if they are granted visas. In relation to [the first-named applicant]’s skills and contribution to Australia, there is evidence before the Tribunal that he has been employed in the same role within his Australian business in a regional area of Western Australia, which continues to generate a profit, since 2012. The Tribunal accepts that [the first-named applicant] has skills which are valued and specialised, and that he has contributed his skills through his employment to support the retail trade, which is one of the region’s largest industries. In relation to [the second-named applicant]’s skills and contribution to Australia, the evidence before the Tribunal is that her commitment and specialised knowledge in her current role has enabled the [local government area] to achieve positive community outcomes. The documentary and oral evidence before the Tribunal supports the valuable contribution [the second-named applicant] has made to the [local government area] and, consequently by her work, to her local community. The Tribunal is satisfied that [the first and second-named applicants] are valuable employees with unique skill sets not readily available in Australia. Further, on the basis of the evidence before it, if [the first and second-named applicants] were not able to continue their employment, their respective employers would face significant adverse consequences, including financial detriment and loss.
The Tribunal also accepts the evidence before it that each of the applicants are actively involved, and known to have made a valuable contribution, to several sporting and community groups within their local community.
The Tribunal observes that [the second-named applicant]’s plan to establish a [social enterprise] to provide individuals with disabilities in their local area with the opportunity to work, would also be a valuable contribution to the Australian community in the future.
The Tribunal considers that the contributions that [the first and second-named applicants] have made, and that they (as well as [the fourth-named applicant] and [the third-named applicant]) will continue to make in years to come, also weighs in support of a finding that any costs are not undue in this case.
The Tribunal has considered the applicant’s personal ties to Australia. The Tribunal accepts that the applicants have close (Australian citizen) relatives in Australia, and based, on the various letters and oral evidence in support, it is satisfied that they have developed strong bonds with a number of Australian citizens and permanent residents. The Tribunal is satisfied, on the basis of the evidence, that the applicants have close family and friendships and several mutually supportive relationships in the Australian community.
In assessing the compassionate circumstances in this case, the Tribunal accepts that [the third-named applicant] and [the fourth-named applicant]’s formative years have been spent in Australia, and that [the third-named applicant] has an established treatment plan and care arrangements in Australia which has led to her making significant progress towards a sufficient level of independence in the future. The Tribunal accepts that returning to the United Kingdom would likely have a negative impact on [the third-named applicant]’s condition and would not be in either of the children’s best interests. The Tribunal also accepts that returning to the United Kingdom, where the applicants no longer have any family, professional or personal ties, and in circumstances where they would suffer a great financial loss, would have a detrimental impact on each of them.
The applicants’ immigration history is sound. Specifically, there have been no reported issues and all applicants have abided by the visa conditions of the 457 and bridging visas held.
Considering all of the circumstances and evidence before it, the Tribunal is satisfied that the granting the visa would be unlikely to result in undue cost to the Australian community.
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.
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 Findson

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.

[2020] AATA 771

7 February 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Remedies

Jurisdiction

Statutory Construction