1729745 (Migration) - [2019] AATA 5188

1729745 (Migration) [2019] AATA 5188 (6 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1729745
MEMBER:Alison Mercer
DATE:6 September 2019
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the application for Skilled Nominated (Permanent) visas for reconsideration, with the direction that the second named applicant meets the following criteria for a subclass 190 - Skilled - Nominated visa:
·PIC 4005(1)(c) for the purposes of cl.190.216 of Schedule 2 to the Regulations.
Statement made on 06 September 2019 at 10:39am

CATCHWORDS
MIGRATION –Skilled Nominated (Permanent) (Class SN) visa – Subclass 190 Skilled - Nominated – free from disease or condition that may result in threat to public health – adverse Medical Officer of the Commonwealth (MOC) opinion – Public Interest Criterion 4005 – significant cost to the Australian community – initial MOC opinion invalid – medical condition in the low to moderate phase – positive MOC opinion – exact form or level of the disease or condition suffered by the applicant – decision under review remitted
PRACTICE AND PROCEDURE – where an opinion of MOC is required, Tribunal must take it as correct – Tribunal must be satisfied that MOC has applied correct test in forming its opinion – MOC opinion considered invalid
LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), r 2.25A, Schedule 2, cl 190.216, Schedule 4, Public Interest Criterion 4005
CASES
Haque & Ors v Minister for Immigration and Anor [2015] FCCA 1765
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 17 November 2017 to refuse to grant the applicants Skilled Nominated (Permanent) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 3 August 2016. 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.190.216 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. Specifically, the delegate found that applicant’s wife did not meet PIC 4005(1)(c), which required that any member of the family unit of the applicant had to be free from a disease or condition in relation to which a person who has the disease or condition would be likely to require health care or community services, or meet the medical criteria for the provision of a community service from the time the visa would be granted, and where provision of the health care or community services would be likely to result in a significant cost to the Australian community in the areas 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: [2019] AATA 5188
Decision Date: 6 September 2019

CaseChat Overview and Summary

This matter concerned an application for a Skilled Nominated (Permanent) visa (subclass 190). The central dispute revolved around whether the second named applicant met Public Interest Criterion (PIC) 4005, which requires visa applicants to be free from certain diseases or conditions that could pose a threat to public health or result in significant costs to the Australian community. The Tribunal was required to determine if the applicant satisfied PIC 4005(1)(c) in light of an adverse Medical Officer of the Commonwealth (MOC) opinion.

The legal issues before the Tribunal were whether a MOC opinion was required, and if so, whether the MOC had applied the correct test in forming its opinion. The Tribunal was bound by regulation 2.25A to seek a MOC opinion for permanent visa applications unless specific exceptions applied, and to treat that opinion as correct. However, the Tribunal retained the responsibility to be satisfied that the MOC had applied the correct statutory criteria when forming their opinion, which necessitates identifying the specific medical condition, its form or level, and assessing it against the relevant public interest criterion.

The Tribunal found that a MOC opinion was indeed required for this permanent visa application. While the Tribunal must generally accept a MOC opinion as correct, it must first ensure the MOC has applied the correct test, as established in cases such as *Robinson v MIMIA* and *Ramlu v MIMIA*. The initial MOC opinion was considered invalid because it did not sufficiently identify the exact form or level of the applicant's medical condition or demonstrate that the MOC had applied the statutory criteria by reference to a hypothetical person with that specific condition. Consequently, the Tribunal concluded that the matter should be remitted for reconsideration.

The Tribunal remitted the application for Skilled Nominated (Permanent) visas for reconsideration, directing that the second named applicant be considered to meet PIC 4005(1)(c) for the purposes of clause 190.216 of Schedule 2 to the Migration Regulations 1994.

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 matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this review is whether the second named 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 visa applicants, in certain circumstances, to undergo medical assessment, and to be free of certain diseases or conditions that may impact on the community. The second named applicant in this case was initially found not to meet PIC 4005(1)(c). 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 an 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 an 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). As the applicant in this case has applied for a permanent visa, the exclusion provision in PIC 4005(3) does not apply. 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? 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.

Decision

Reasons for decision

Given the findings above, the appropriate course is for the Tribunal to remit the matter to the Minister for reconsideration of the remaining criteria for the visa.DECISION The Tribunal remits the application for Skilled Nominated (Permanent) visas for reconsideration, with the direction that the second named applicant meets the following criteria for a subclass 190 - Skilled - Nominated visa:·PIC 4005(1)(c) for the purposes of cl.190.216 of Schedule 2 to the Regulations.Alison MercerMemberATTACHMENTMigration 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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