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

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).
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).
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.
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.
A copy of the delegate’s decision record was provided to the Tribunal, for the purposes of the review.
The applicants appeared before the Tribunal on 3 April 2019 to give evidence and present arguments.
The applicants were represented in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION 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.

Continue reading 1713717 (Migration)

Details

AGLC: 1713717 (Migration) [2019] AATA 5185
Case: [2019] AATA 5185
Decision Date: 26 August 2019

CaseChat Overview and Summary

This matter concerned an appeal by the applicants against a decision not to grant them Regional Employer Nomination (Permanent) visas (Subclass 187). The core of the dispute revolved around whether the applicant met the health criteria stipulated in Public Interest Criterion (PIC) 4005 of the Migration Regulations 1994. The Tribunal was required to determine if the applicant was free from diseases or conditions that could impact the Australian community, specifically in terms of healthcare costs.

The legal issue before the Tribunal was whether the applicant satisfied PIC 4005, as it applied to the Subclass 187 visa. This criterion, in relevant part, requires an applicant to be free from a disease or condition that would likely require health care or community services, and where the provision of such services would likely result in significant cost to the Australian community. The Tribunal had to consider a Medical Officer of the Commonwealth's (MOC) assessment regarding the applicant's asymptomatic chronic viral Hepatitis B.

The Tribunal reasoned that if a MOC report is valid, it is bound to accept its findings. In this instance, the MOC provided an updated report on 4 March 2019, opining that the applicant's condition, asymptomatic chronic viral Hepatitis B, would likely require health care and community services resulting in significant cost to the Australian community during the period of permanent residence. The Tribunal confirmed that the applicants understood the implications of this medical opinion and the visa requirements. Based on the MOC's opinion, the Tribunal concluded that the applicant did not satisfy PIC 4005(1)(c)(ii)(A), and consequently, could not meet the primary visa criterion cl.187.235(1).

Accordingly, the Tribunal affirmed the decision not to grant the applicants the Subclass 187 visas. The Tribunal further found that the second applicant, as a family member, also did not meet the secondary visa criteria and had not met the primary criteria in her own right.

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

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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