1713717 (Migration)

[2019] AATA 5185

1713717 (Migration) [2019] AATA 5185 (26 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1713717

MEMBER:Nicola Findson

DATE:26 August 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) visas.

Statement made on 26 August 2019 at 3:13pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 (Regional Sponsored Migration Scheme) – diseases or conditions that may impact on the community – applicant does not meet PIC 4005 health criteria – significant cost to the community – adverse Medical Officer of the Commonwealth (MOC) assessment – valid MOC report – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), r 2.25A; Schedule 2, cl 187.235; Schedule 4, Public Interest Criterion 4005

CASES
JP1 & Ors v MIAC [2008] FMCA 970
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 9 June 2017 to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 5 April 2016. At the time of application, Class RN contained one subclass:  subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (the Regulations).  The primary criteria must be satisfied by at least one applicant.  Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.  Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.  In the present case the first named applicant is seeking the visa in the Direct Entry stream, nominated by his employer for the position of Café or Restaurant Manager. 

4. The delegate refused to grant the visa on the basis that the first named applicant (now referred to as the applicant) did not satisfy cl.187.235 of Schedule 2 to the Regulations, because the health criteria in Public Interest Criterion (‘PIC’) 4005 of Schedule 4 to the Regulations was not met.

5. A copy of the delegate’s decision record was provided to the Tribunal, for the purposes of the review. 

6. The applicants appeared before the Tribunal on 3 April 2019 to give evidence and present arguments.  

7. The applicants were represented in relation to the review by their registered migration agent.

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this review is whether the applicant meets PIC 4005 as required by the criteria for the grant of the visa. PIC 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 must satisfy cl.187.235(1) of Schedule 2 of the Regulations in respect of the health criteria in PIC 4005.

10. A Medical Officer of the Commonwealth (MOC) has provided an updated report dated 4 March 2019, stating an opinion that the applicant does not meet the health requirement, PIC 4005(1)(c)(ii)(A) in Schedule 4 to the Regulations.  The opinion identifies and describes the applicant’s medical issue as follows: the applicant is [an age] year old person with Asymptomatic chronic viral Hepatitis B.  The MOC’s opinion is that the condition, based on a hypothetical person with the same disease or condition, at the same severity as that of the applicant, would be likely to require health care or community services during the period of permanent residence, including medical services and pharmaceuticals.  The MOC opines that these health care and/or community services would be likely to result in a significant cost to the Australian community.

11. At the Tribunal hearing, the Tribunal discussed with the first and second-named applicants its view that, if the medical opinion of 4 March 2019 was valid, then the Tribunal was bound to accept it as correct.  If it did that then it would have to find that the applicant did not meet PIC 4005, with the result that the applicant could not meet cl.187.235.  The first and second named applicants stated that they understood the information and the relevance of the information. They indicated they understood the requirements for the grant of the visas.

    Is the applicant free from the relevant diseases or conditions (PIC 4005(1)(a), (b), (c))?

12. 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.

13. 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 specified temporary visas, certain specified health care and community service are excluded from this consideration: PIC 4005(3).

14. As the applicant in this case has applied for a permanent visa, the exclusion provision in PIC 4005(3) does not apply.

15. 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?

16. 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.

17. The delegate’s decision, a copy of which was provided to the Tribunal for the purposes of the review, records that the applicant was the subject of an adverse opinion from a MOC on 21 March 2017. The MOC assessed the applicant as not meeting the health requirement for the visa of which he had applied. The applicant was given an opportunity to comment on the MOC’s assessment, and he subsequently provided additional medical evidence which was forwarded to the MOC for consideration.  On 26 May 2017, the MOC maintained his opinion that the applicant did not meet the health requirement.  The delegate refused the visas on the basis of this adverse opinion from the MOC.

18. During the review process, the Tribunal arranged to obtain a further MOC opinion, given the time that had passed since the MOC opinion relied upon by the delegate in his decision. A further MOC opinion was provided on 4 March 2019 and the contents of the report were put to the applicants at their hearing, pursuant to section 359AA of the Act, as being the reason or part of the reason for affirming the decision under review.

19. The MOC opinion dated 4 March 2019 states that:

    ‘The applicant has asymptomatic Hepatitis B virus infection and requires lifelong antiviral treatment.  Provision of services to a hypothetical person in Australia with the same condition as the applicant and at the same severity: a hypothetical person in Australia with the same condition as the applicant, at the same severity, would be likely to require long term specialist health care services, including but not limited to antiviral pharmaceuticals and medical supervision. This condition is likely to be Permanent.’

20. The MOC indicates that, in preparing the opinion, regard was had to the information available to 4 March 2019 including, but not limited to, the reports from Gastroenterologist Dr [A] dated 5 January 2017, 19 April 2017 and 18 February 2019; letter from Dr [B] dated 19 February 2019; pathology reports dated from 25 January 2016 to 21 January 2019; ultrasound reports from 2 September 2016 to 29 January 2019 and [another test] of 25 January 2016; and the report of the examination conducted by the Panel Member with associated investigations dated 31 May 2016.  The MOC also indicates that the report dated 24 April 2017 and email dated 28 April 2017 from [named representative] were noted.

21. Finally, the opinion notes the MOC’s position number and states the officer is a ‘Medical Officer of the Commonwealth for the purposes of providing an opinion on whether prescribed health criteria under the Migration Regulations 1994 are met’.

22. The applicant indicated to the Tribunal that he did not think the MOC opinion was fair because no costings were set out in the opinion and that his actual costings were not taken into account.  He told the Tribunal that he is sourcing his medication from India, which is significantly cheaper than Australia.  He indicated that he had been informed that the cost of his medication would likely reduce in coming years. He also said his specialist had recently performed a biopsy and deemed his liver to be healthy (which result was provided to the MOC for consideration).  The Tribunal acknowledged the applicant’s frustration as to the MOC opinion.  However, a MOC is not obliged to state what the significant costs would be in order for the MOC to be valid: JP1 & Ors v MIAC [2008] FMCA 970. Also, it is for the MOC to determine, based on their own medical judgment, whether a cost is significant. The Tribunal reminded the applicants that if it considered the MOC opinion to be valid - and indicated that its preliminary view was that in this case it is - it must take that opinion to be correct in accordance with r.2.25A. It also reiterated that there is no provision for waiver of PIC 4005.

23. The Tribunal has had regard to the applicant’s oral evidence.  However, on the evidence, the Tribunal accepts that the opinion of the MOC is valid.  The Tribunal is satisfied that the MOC opinion of 4 March 2019 identified 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 is satisfied that the MOC applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition.

24. Accordingly, based on the opinion of the MOC dated 4 March 2019, the Tribunal finds that the applicant does not satisfy PIC 4005(1)(c)(ii)(A).  It follows that the applicant is not able to meet cl.187.235(1) of the Regulations, which is a requirement for the grant of the visa. Therefore, the Tribunal finds that the applicant does not meet cl.187.235 of the Regulations. He cannot be granted a subclass 187 visa.  The Tribunal further finds that the second named applicant cannot satisfy the secondary visa criteria to be a member of the family unit of a person who holds a subclass 187 visa, and there is no evidence that she meets the primary criteria in her own right. 

    DECISION

25. The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) visas.

    Nicola Findson
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    Schedule 4

    4005(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)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 (2) (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.