1730517 (Migration)

[2020] AATA 1371

1730517 (Migration) [2020] AATA 1371 (8 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1730517

COUNTRY OF REFERENCE:                   Kenya

MEMBER:Penelope Hunter

DATE:8 April 2020

PLACE OF DECISION:  Sydney

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 08 April 2020 at 1:19pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – health criteria – asymptomatic HIV infection – MOC opinion – significant cost to the Australian community – waiver of requirement – no ‘undue cost’ to Australian community – considerations of compassionate or other circumstances – capacity to mitigate costs – occupational skills of the applicant – access to treatment in Kenya – social stigma and discrimination – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
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

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 1 December 2017 to refuse to grant the applicants an Employer Nomination (Permanent) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 15 April 2015. The delegate refused to grant the visa as the first named applicant (now referred to as the applicant) did not satisfy cl.186.224 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4007 of Schedule 4 to the Regulations was not met.

3. The Tribunal received an application for review of the delegate’s decision on 4 December 2017.

4. The applicants were invited to attend a hearing before the Tribunal on 1 April 2020, to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments. The applicant and [the second named applicant] gave evidence at the hearing.

5. The applicants were represented in relation to the review by their registered migration agent, who also participated in the hearing by telephone.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The applicant

   is the primary visa applicant for the grant of a Subclass 186.

   
   

   [The second named applicant] is the wife of the applicant and [the third named applicant] and [fourth named applicant] are their children. The applicant’s wife and children have been included in the visa application as members of his family unit.

8. The issue in this review is whether the visa applicant meets Public Interest Criterion (PIC) 4007 as required by the criteria for the grant of the visa. Public Interest Criterion 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.

9. As part of the assessment for the grant of the visa, all applicants were required to be assessed by the Medical Officer of the Commonwealth (MOC). The assessment by the MOC of [the second named applicant], dated 28 October 2014, found that she had the condition of asymptomatic HIV infection. It was assessed that a hypothetical person with the condition in the form and severity of [the second named applicant] would be likely to require continued access to health care or community services including medical services and pharmaceuticals. It was assessed that the provision of these services was likely to result in a significant cost to the Australian community, and in the opinion of the MOC, the likely costs were assessed as $426,030. Based on this assessment, the MOC found that [the second named applicant], and consequently all other visa applicants, did not meet the health requirement.

10. Submissions were made by the visa applicants to the Department in response to this opinion; these submissions included the provision of further medical information concerning [the second named applicant], particularly reports from her treating doctor, [Dr A] dated 15 October 2014 and 1 December 2015. A further opinion was obtained from an MOC dated 4 November 2015. In this opinion, the MOC assessed that [the second named applicant] was a person with asymptomatic HIV infection. It was assessed that a hypothetical person with the condition in the form and severity of [the second named applicant] would likely require long term specialist health care services including antiretroviral pharmaceuticals, and that the provision of these health care and/or community services were likely to result in a significant cost to the Australian community. Further, in the opinion of the MOC, the likely costs were assessed as $667,200. Based on this assessment, the MOC found that [the second named applicant] again did not meet the health requirement.

11. A further opinion was obtained on 6 April 2016, and in this opinion the MOC assessed that [the second named applicant] was a person with asymptomatic HIV infection. It was assessed that a hypothetical person with the condition in the form and severity of [the second named applicant] would likely require long term speciality healthcare services including but not limited to antiretroviral pharmaceuticals, and it was assessed that the provision of these health care and/or community services were likely to result in a significant cost to the Australian community. Further, in the opinion of the MOC, the likely costs were assessed as $667,212. Based on this assessment, the MOC found that [the second named applicant] again did not meet the health requirement.

12. The delegate who considered the application found that [the second named applicant] did not satisfy the criteria in PIC 4007(1)(c) and the delegate also was not satisfied that there were reasons to waive the criteria. Accordingly, the delegate found the criteria in cl.186.224(2) of Schedule 2 to the Regulations was not met by the applicant and refused the visa applications.

13. On 17 December 2019, in anticipation of hearing the matter, the Tribunal invited the visa applicants to obtain an updated MOC opinion. The applicants accepted this invitation and submitted further medical evidence in the form of a report by [Dr B] dated 7 November 2019. This was referred to the Review Medical Officer of the Commonwealth (RMOC). On 20 December 2019, the RMOC provided an opinion that [the second named applicant] had the condition of asymptomatic HIV infection. It was considered that a hypothetical person with this condition would likely require health care services not limited to anti-retroviral pharmaceuticals and medical supervision. The RMOC further provided the opinion that the likely costs of treatment for a hypothetical person with the same condition were assessed as $135,000. The RMOC concluded that [the second named applicant] did not meet the health requirement for the purposes of PIC 4007(c)(ii)(A).

    Is the applicant free from the relevant diseases or conditions (PIC 4007(1)(a), (b), (c))?

14. 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.

15. 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.

16. 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.

17. As the applicant in this case has applied for a permanent visa, the exemption provision in PIC 4007(1B) does not apply.

18. 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).

19. On the basis of the information before it, including the delegate’s decision records dated 1 December 2017submitted by the applicant, the medical evidence provided by the applicants, the opinions of the MOC and RMOC, and the applicant’s evidence at hearing, the Tribunal finds that the [second named visa applicant], has the condition of an asymptomatic HIV infection. The applicants did not dispute the diagnosis of this condition at the hearing.

    Is a MOC opinion required?

20. 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.

21. There are four assessments in respect of the applicant made by an MOC or RMOC. The Tribunal must have regard to the most recent assessment and the outcome of this assessment, dated 20 December 2019, is that [the second named applicant] ‘does not meet the health requirement’. The RMOC estimated that the cost to the Australian community of the services identified in the assessment is likely to be $135,000, consisting of $15,000 in medical services and $120,000 for pharmaceuticals. This is significantly less than the amounts estimated in the previous assessments of the MOC and is reflective of a change in Departmental Guidelines which have occurred since the visa application in assessment of the period over which the relevant costs are to be calculated.

22. The Tribunal is satisfied that in this case the RMOC opinion of 20 December 2019 has identified the medical condition to which the public interest criterion has been applied, and the form or level of the condition suffered by [the second named applicant], asymptomatic HIV infection.  Further, the RMOC has applied statutory criteria by reference to a hypothetical person who suffers from that level or form of the condition. The Tribunal is satisfied therefore that the RMOC has applied the correct test in forming the opinion that [the second named applicant] does not meet the health requirement, specifically PIC 4007(1)(c)(ii)(A).

23. Accordingly, based on the opinion of the RMOC, [the second named applicant] does not satisfy PIC 4007(1)(c).

    Should the requirements of PIC4007(1)(c) be waived?

24. 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).

25. 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.

26. In anticipation of the Tribunal hearing, the applicants’ representative provided lengthy submissions and the following additional documents:

    i.Agent submissions dated 26 March 2020.

    ii.Statutory Declaration of applicant dated March 2020 and 28 March 2020.

    iii.Report by [Dr B] dated 7 November 2019.

    iv.[Professional Body 1] Membership Confirmation.

    v.[Professional Body 2] Membership Confirmation.

    vi.Applicant’s Income Statement 2018-2019 [Employer 1].

    vii.Applicant’s Income Statement 2018 – 2019 [Employer 2].

    viii.[The second named applicant] Income Statement 2018 – 2019 [Employer 3].

    ix.[The second named applicant] Income Statement 2018 – 2019 [Employer 4].

    x.Applicant’s [Superannuation Fund 1] Annual Statement 2019.

    xi.[The second named applicant’s] [Superannuation Fund 1] Annual Statement 2019.

    xii.Joint [Bank 1] Interim Statement 2019.

    xiii.Joint [Bank 1] Online Saver Statement 2019.

    xiv.[University 1] Letter, confirmation of enrolment in [Qualification 1 for the second named applicant].

    xv.[Employer 3] Staff Recognition Awards, April 2018 and August 2018, issued to [the second named applicant]

    xvi.Letter from [School 1], regarding school enrolment of [the third named applicant].

    xvii.[Youth organisation] ID Card and letter of confirmation of participation, for [the third named applicant].

    xviii.Letter of support of  [Dr C] dated 18 August 2019.

    xix.Letter of support - [Dr D] dated 21 August 2019.

    xx.Letter of support - [Dr E] dated 22 August 2019.

    xxi.Letter of support [Dr F] dated 25 August 2019.

    xxii.Letter of support [Mr G] dated 25 August 2019.

    xxiii.Letter of support [Dr H] dated 27 August 2019.

    xxiv.Letter of support [Dr I] dated 27 August 2019.

    xxv.Letter of support [Dr J] dated 27 August 2019.

    xxvi.Letter of support [Dr K].

    xxvii.Letter of support [Father L] dated 28 August 2019.

    xxviii.Letter of support [Mr M] dated 29 August 2019.

    xxix.Letter of support [Dr N] dated 30 August 2019.

    xxx.Letter of support [Dr O] dated 1 September 2019.

    xxxi.Letter of support [Ms P] dated 3 September 2019.

    xxxii.Letter of support[Ms Q], dated 4 September 2019.

    xxxiii.Letter of support [Dr R] dated 5 September 2019.

    xxxiv.Letter of support [Dr S] dated 6 September 2019.

    xxxv.Letter of support [Dr T] dated 6 September 2019.

    xxxvi.Letter of support [Dr U] dated 6 September 2019.

    xxxvii.Letter of support [Dr V] dated 6 September 2019.

    xxxviii.Letter of support [Dr W] dated 6 September 2019.

    xxxix.Letter of support [Ms X], dated 6 September 2019.

    xl.Letter of support [Dr Y] dated 6 September 2019.

    xli.Letter of support [Dr Z].

    xlii.Letter of support [Dr AA] dated 7 September 2019.

    xliii.Letter of support [Ms AB] dated 7 September 2019.

    xliv.Letter of support [Ms AC] dated 10 September 2019.

27. The Tribunal has taken into account all of the written and oral evidence submitted on behalf of the applicants, their representative’s submissions and all relevant medical and supporting documents, 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 $135,000, while considerably less than the original assessment of the MOC, remains significant. 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.

28. The medical opinion from her treating specialists is that [the second named applicant] will not encounter any health complications and will be able to lead a full life including working to the usual retirement age, despite her condition. In addition to the substantial decrease in costs assessed by the RMOC, the applicants’ have argued that the actual cost of [the second named applicant]’s treatment is likely to be less than the figure of $135,000, assessed for the hypothetical person. The Tribunal has considered that [the second named applicant], and her doctors have reported that she has a number of lifestyle factors which are contributing to her overall good health. For example she undertakes regular exercise, has a balanced diet, does not smoke and does not drink alcohol. Additionally, it is reported that [the second named applicant] is extremely compliant in her treatment. Her specialist, [Dr B], commented that [the second named applicant] is completely asymptomatic in relation to her HIV infection, has developed no abnormalities on clinical examination and has no AIDS defining conditions since her initial diagnosis. It is further reported that she has maintained and undetectable HIV RNA viral load since commencing antiretroviral medication August 2014.[1] The Tribunal accepts that [the second named applicant] is in good health and has a positive prognosis from her treating doctors.

    [1] Report of [Dr B] dated 7 November 2019

29. The Tribunal has also considered the submissions that HIV is a rapidly advancing scientific field, with significant progress already having been made, including a patient reported as cured of HIV in 2019, the actual cost of pharmaceuticals are likely to decrease. [Dr B] has also commented that after the initial introduction of new drugs into clinical usage, treatment costs significantly reduced over time and the exact projected costs of all HIV care and treatment continues to change.[2] The Tribunal acknowledges that as these advances progress there may be reasons in the future for the hypothetical costs of the MOC to be further reviewed. However, the Tribunal must take the current estimates as correct and it unable to attribute much weight to the potential for those costs to decrease.

    [2] As above

1. It is accepted however that the applicant, and [the second named applicant], have the capacity to mitigate the actual costs through their current and future employment, insurances and assets. The Tribunal accepts that both the applicant and [the second named applicant], have qualifications and experience and it is likely that their consistent employment in healthcare will continue into the future. The applicant remains employed as an [Occupation 1], he has been in this position for 7 years. He gave evidence at the hearing that he has had no performance issues to date and progressed to a level 4, the highest level applicable to the role. In addition, the evidence is that he has additional qualifications and experience in the field of [Discipline 1]. In Kenya he obtained a [Qualification 2] and a [Qualification 3]. He graduated from the [University 2] in 2007 with a [Qualification 4] and achieved his [Qualification 5] at [University 3] in [Country 1] in 2009. The applicant is able in the future to register as a [occupation], and it was submitted that he has the intention of utilising his knowledge, skills and experience to practice as a [Occupation 2] or [Occupation 3], which will increase his earning. In addition to his employment at [Employer 5], when available and suitable to his family commitments he had undertaken further casual employment to supplement the family income with [Employer 2]. [The second named applicant] is also employed full-time as an [Occupation 4]. She has been awarded a [Qualification 6] from [course provider], and a [Qualification 7]. Additionally, she has a [Qualification 8] and a [Qualification 9] (obtained in [Country 1]), [Qualification 10], [Qualification 11] and [Qualification 12]. In Australia she has worked as a [Occupation 5], [Occupation 6], [Occupation 7] and [Occupation 4]. She is now studying a [Qualification 1] at [University 1] and on the intended completion of her studies in 2021 will become a [Occupation 8].

2. The information contained in the income statements submitted demonstrate that in the 2018/2019 financial year the applicant and [the second named applicant] made a combined income tax contribution of $40,392. It is submitted that over the relevant 10-year assessment period this would be approximately $403,920 in tax, which is almost 3 times the assessed cost. It is noted that Australian tax payments are made to meet all the services provided by the government to the Australian community, with medical subsidies being only a very small part of those services.  The total tax paid by the applicants covers all government services, however the Tribunal accepts that they can contribute their respective portion towards medical expenses.

3. The income statements submitted demonstrate that in the 2018/2019 financial year, the applicant’s gross earnings were $94,171.87, and [the second named applicant]’s gross earnings were $74,550.71, a combined gross income of $168,722.02. The information before the delegate was of combined earnings proximate to $123,000. The applicants have clearly demonstrated their ability to increase their income to date and the Tribunal accepts the submission that they have further opportunity to expand their income upon the completion of [the second named applicant] qualifications as a [Occupation 8] and if the applicant pursues the opportunity to register and practice [Discipline 1] because his [Discipline 1] qualifications are now recognised in Australia.

4. The applicants also hold total and permanent disability insurance and income protection insurance. They both have superannuation accounts with [Superannuation Fund 1]. Their combined balance has increased from $25,309 in November 2016, when the matter was considered by the delegate to a combined balance of $65,651 as at 2019. Additionally, they have demonstrated as at September 2019 their [Bank 1] accounts had a balance of over $25,000. Excluding their motor vehicle, a [a specified make and model of specified year], they have potential combined assets of $90,651. The Tribunal further accepts that the applicants have demonstrated the capacity to save, and their assets may increase with their ongoing employment. The Tribunal places some weight on the demonstrated capacity of the applicants to mitigate [the second named applicant]’s actual costs.

5. The Tribunal has also considered the submission contained in the applicant’s statutory declaration of 18 March 2020, that both he and [the second named applicant] are in demand [professionals]. The applicant has set out that at the [current time], his [department] is on standby 24/7. [The second named applicant] also works at a [workplace] with [essential functions]. While the applicant’s occupation of [Occupation 1] is listed on the short-term skilled shortage list, the Tribunal notes also that an [Occupation 4] is currently listed on the shortages list for NSW. It is accepted that through their skills the applicants have an ability to contribute to [the] Australian community. The Tribunal also has had regard to the intention of the applicant in the future to practice as a [Occupation 2] and that of [the second named applicant] as a [Occupation 8]. The occupation of [Occupation 8] is on the Medium and Long-Term Strategic Skills List[3] and a [Occupation 2], which is on the Medium and Long-Term Strategic Skills List,[4] or as an [Occupation 3] (which is on the Regional Occupation List).[5]

   [3] Australian Government, Department of Education, Skills and Employment, Skill Shortages Research, Health Professionals New South Wales June 2019 Australian Government, Department of Home Affairs, Skilled occupation list (accessed 25 March 2020)

   [5] Australian Government, Department of Home Affairs, Skilled occupation list (accessed 25 March 2020)

6. The applicant has also provided to the Tribunal over 20 letters of support from [colleagues] who have worked with him for a number of years. It is consistently reported that the applicant is a capable professional, and it is clear from the letters of support that he is well respected by his colleagues. [Dr Z] reports that the applicant is an invaluable support to the [Occupation 3] particularly in crisis situations where he remains calm, providing valuable support and reassurance, related to his previous [training]. [Dr T] comments on the applicant’s good standing in the [workplace] and that he is an asset to the [employer]. Further, [Dr N] reports that as an [Occupation 1] the applicant has demonstrated [exceptional skills and knowledge]. The staff recognition awards presented to [the second named applicant] also demonstrates that she is a valued in her employment.  In addition to their value professionally, [Father L], from [named parish] has provided a letter of support regarding the value of [the second named applicant] and her daughter [the third named applicant], to parish activities. The Tribunal accepts that they have also established a number of supportive friends in the Australian community.

7. The Tribunal has also had regard to other compassionate and health concerns that would arise for the applicants if they were required to return to Kenya. The applicant told the Tribunal at the hearing of his personal observations of the treatment of HIV patients in his home country. [Dr B], also commented that less than 60% of patients have access to anti-retroviral medication in Kenya, and that the reliability of supply is limited. She corroborates the applicant’s submissions regarding the enormous social stigma and discrimination experienced by patients and that social supports are sub-optimal. As to those social supports, the applicants fear that they will not be able to keep [the second named applicant]’s condition confidential were they forced to return. They were adamant in their evidence that the consequences would be complete ostracism from the Kenyan community including their family. Their concern is so prevalent that they have not disclosed [the second named applicant]’s diagnosis to anyone other than her treating health professionals.  In addition to the stigma, discrimination and inadequate healthcare, the Tribunal has considered the submission that the applicants would be likely to have restricted access to employment because of [the second named applicant]’s condition and the rest of the families presumed HIV status. It was submitted that the family may struggle to support themselves. Further submissions were provided as to the potential consequences for the applicant’s children including potential discrimination for them in accessing education, for [the third named applicant] in accessing employment, and also as a woman being impacted by gender inequalities. In contrast, [the second named applicant] gave evidence at the hearing that not only is the family prospering financially through their employment in Australia, but they are also providing financial support for their parents and siblings at home in Kenya. The Tribunal accepts that while there is no impediment to the applicants returning to Kenya, it could have considerable consequences for [the second named applicant]’s health and longterm prognosis, and for the family socially and economically.

8. The Tribunal also puts substantial weight on the further information provided by the RMOC “Health Waiver Information” that [the second named applicant] is not likely to prejudice access to health care services.

9. Overall, the Tribunal notes that the relevant costs as assessed for the applicant have significantly reduced in light of the updated Departmental policy. The Tribunal also accepts the evidence that, [the second named applicant] and the applicant possess the financial resources and health insurance to mitigate her costs. Both her and the applicant have secure full-time employment, and the realistic potential to improve their employment prospects and income. The evidence from the multiple references provided is that they have  strong and supportive relationships in the Australia community. It is considered that there is considerable capacity to mitigate the financial costs involved. The Tribunal also has regard to the fact that the applicant is in stable employment, is he strongly supported by his colleagues and regarded as an asset to his employer. While his occupation is not located in a regional area, and not listed on the Medium and Long-term Strategic Skills List of the Skilled Occupation List, the nominated occupation of [Occupation 1] has been included in Skilled Short Term list. [The second named applicant]’s current occupation of [Occupation 4] is also included in the included in Skilled Short Term list and the NSW 190 Priority Skilled Occupation List. Their proposed future occupations of [Occupation 2] and [Occupation 8] are in higher demand. In the current environment in Australia it is accepted that they have an opportunity to contribute to the [welfare] of the Australian community. The Tribunal has also taken in to consideration that evidence that were the applicants to return to Kenya due to current conditions [the second named applicant] may not be able to access her medication, which could have an adverse effect on her remaining asymptomatic and on her health and well-being, and on that of her family in general. The Tribunal also is concerned with the stigma and discrimination that may be experienced by the applicant and the children as to her family members accessing employment and education. When all these matters are taken into account, the Tribunal is satisfied that the granting of the visa would be unlikely to result in an undue cost to the Australian community.

10. For these reasons, the Tribunal is satisfied that the granting of the visa to [the second named applicant] would be unlikely to result in undue cost or undue prejudice within the terms of PIC 4007(2)(b). Therefore PIC 4007(1)(c) may be waived subject to the applicant satisfying all other requirements for the visa.

11. 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

12. 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(2) of Schedule 2 to the Regulations.

    Penelope Hunter

    
    

    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.