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

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).
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.
The Tribunal received an application for review of the delegate’s decision on 4 December 2017.
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.
The applicants were…

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.

Keep reading for free

Create a free CaseChat account to read 1730517 (Migration) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] AATA 1371
Decision Date: 8 April 2020

CaseChat Overview and Summary

This matter concerned an application for a Subclass 186 Employer Nomination (Permanent) visa by the first applicant, with his wife and two children included as secondary applicants. The central dispute revolved around whether the secondary applicant, the wife, met the health requirements stipulated by Public Interest Criterion (PIC) 4007, specifically concerning her diagnosis of asymptomatic HIV infection. The Medical Officer of the Commonwealth (MOC) had assessed that a hypothetical person with her condition would likely incur significant costs to the Australian community through ongoing healthcare and pharmaceutical needs, thereby failing to meet the visa criteria.

The legal issue before the Tribunal was to determine if the secondary applicant met the health requirements under PIC 4007, and if not, whether a waiver of these requirements was appropriate. PIC 4007(1)(c) requires an applicant to be free from a disease or condition that would likely result in significant cost to the Australian community or prejudice access to healthcare for citizens and permanent residents. The Tribunal also had to consider the provisions for waiving this requirement under PIC 4007(2), which allows for a waiver if granting the visa would be unlikely to result in undue cost to the Australian community or undue prejudice to access to healthcare.

The Tribunal noted multiple MOC opinions that consistently assessed the secondary applicant's condition as likely to incur significant costs to the Australian community, with estimated costs escalating over successive assessments. However, the Tribunal concluded that the matter should be remitted for reconsideration. This decision was based on the direction that the first applicant met the criteria for PIC 4007(2)(b) for the purposes of clause 186.224(2) of Schedule 2 to the Regulations, indicating that the waiver provisions were to be considered in the reconsideration. The Tribunal's final order was to remit the application for Employer Nomination (Permanent) visas for reconsideration, with the specific direction regarding the first applicant's meeting of the criteria for the waiver.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

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 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. 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. 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. 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. 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.

Decision

Reasons for decision

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(2) of Schedule 2 to the Regulations.Penelope HunterMemberATTACHMENTMigration Regulations 1994Schedule 44007(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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.