1802244 (Migration)

[2020] AATA 3743

1802244 (Migration) [2020] AATA 3743 (8 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1802244

COUNTRY OF REFERENCE:                   China

MEMBER:Penelope Hunter

DATE:8 July 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for an  Employer Nomination (Permanent) visa for reconsideration, with the direction that the 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 July 2020 at 9:50am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) Visa – Subclass 186 Employer Nomination Scheme – waiver of health requirement – significant cost to the Australian community in health care – current Medical Officer of the Commonwealth opinion – updated medical reports – likely costs of treatment greatly reduced – undue cost to the community – applicant committed to treatment and maintaining optimal health – significant earnings increase and capacity to mitigate treatment costs – possible stigma and discrimination accessing employment and healthcare – 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 Public Interest Criterion 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 a decision made by a delegate of the Minister for Immigration on 12 January 2018 to refuse to grant the applicant an Employer Nomination (Permanent) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 20 January 2017. The delegate refused to grant the visa 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 applicant was invited to attend a hearing before the Tribunal on 25 June 2020. On 11 June 2020, the Tribunal received advice via a completed Hearing Response form signed by the applicant indicating that he did not wish to attend a hearing. The applicant requested a decision be made on the papers and requested time until 26 June 2020 to provide further submissions for consideration. The Tribunal, has considered the relevant submissions and proceeded to make a decision on the papers.

4. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The applicant has applied for the grant of a Subclass 186 employer sponsor visa, to work as a Restaurant Manager, for his sponsor, [Employer 1].

7. 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.

8. As part of the assessment for the grant of the visa the applicant was required to be assessed by a Medical Officer of the Commonwealth (MOC). The initial assessment of the applicant, dated 24 March 2017, found that the applicant has the condition of asymptomatic HIV infection, and was 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. In the opinion of the MOC, the likely costs were assessed as $621,000.

9. The applicant made further submissions to the Department, including the provision of additional medical information, in particular a letter of [Doctor A], dated 2 August 2017. A further opinion was obtained from a MOC dated 3 October 2017. In this opinion, it was again assessed that the applicant was a person with asymptomatic HIV infection. It was assessed at a hypothetical person with the condition in the form and severity of the applicant would likely require long-term specialist health care services, including but not limited to ongoing immunomodulator pharmaceuticals. The provision of these health care and/or community services was again assessed as likely to result in a significant cost to the Australian community. In this second opinion of the MOC, the likely costs remained unchanged and were assessed as $621,000. Based on this assessment, the MOC found that the applicant did not meet the health requirement.

10. The delegate who considered the application found that the 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 application.

11. On 6 March 2020, in anticipation of hearing the matter, the Tribunal invited the visa applicant to obtain an updated MOC opinion. The applicant accepted this invitation and the matter was referred for a fresh opinion. On 23 March 2020, the MOC provided an opinion that the 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 MOC further provided the opinion that the likely costs of treatment for a hypothetical person with the same condition were assessed as $135,000. The MOC concluded that the 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))?

12. 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.

13. 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.

14. 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.

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

16. 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).

17. On the basis of the information before it, including the delegate’s decision record dated 12 January 2018, the medical evidence provided by the applicant, and the opinions of the MOCs, the Tribunal finds that the applicant has the condition of asymptomatic HIV infection.

    Is a MOC opinion required?

18. 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.

19. There are three medical assessments of the applicant made by a MOC. The Tribunal must have regard to the most recent assessment, and the outcome of this assessment dated 23 March 2020, which is that the applicant does not meet the health requirement. The MOC 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 substantially 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.

20. The Tribunal is satisfied that in this case the MOC opinion of 23 March 2020 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 applicant, asymptomatic HIV infection.  Further, the MOC 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 MOC has applied the correct test in forming the opinion that the applicant does not meet the health requirement, specifically PIC 4007(1)(c)(ii)(A).

21. Accordingly, based on the opinion of the MOC, the applicant does not satisfy PIC 4007(1)(c).

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

22. 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).

23. 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.

24. The Tribunal has received the following further submissions and documents on behalf of the applicant:

    i.Agent submission dated 31 March 2020.

    ii.Letter of [Doctor A] dated 30 March 2020.

    iii.Statutory declaration of the applicant dated September 2017.

    iv.Statutory declaration of the applicant dated 31 March 2020.

    v.Employment contract for the applicant dated 1 November 2018, base salary $105,000 plus super.

    vi.Notice of assessment for the applicant for the financial year ended 30 June 2019, income assessed $77,633, with $16,772.72 income tax contribution.

    vii.PAYG Summary for the applicants for the year ending 30 June 2019 gross salary $96,111.

    viii.Title Search, investment property unit [address 1].

    ix.Ownership statement, investment property unit [Address 1].

    x.Title Search, investment property [Address 2].

    xi.[Bank 1] statement, savings as at 28 March 2020 $82,550.71.

    xii.Resume of the applicant.

    xiii.Letter from [Manager A], [Employer 1].

    xiv.Confirmation of payment of health insurance up until 22 February 2021.

    xv.Agent submissions dated 31 March 2020 and 25 June 2020

25. The Tribunal has taken into account all of the written and oral evidence submitted on behalf of the applicant, his 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.

26. The Tribunal notes that the Health Information Waiver provided in the most recent MOC sets out that the applicant was free from a disease or condition that is, or may result in him being, a threat to public health in Australia or a danger to the Australian community. Further the MOC states that in their opinion that for the assessed period the applicant would not be likely to prejudice the access of an Australian citizen or permanent resident to health care or community services.

27. The Tribunal has considered the following matters in assessing whether the granting of the visa would be unlikely to result in ‘undue cost’ to the Australian community.

    Applicant’s Health

28. According to the medical information submitted by the applicant’s treating health professional, [Doctor A], the applicant has been highly compliant with his therapy and medical attendances. It is also reported that he has had an excellent response to therapy and presents with an undetectable viral load. In his statement the applicant set out that he is committed to maintaining his health. The Tribunal accepts the evidence of the applicant and his treating medical practitioners that he is in committed to his treatment and maintaining optimal health. Further, that the applicant is expected to lead a normal working life.

    Actual Costs

29. In his letter of 30 March 2020, [Doctor A], comments on what he considered to be likely costs of the applicant’s treatment. In particular, it is submitted that the applicant’s current and high retroviral treatment, Triumeq, cost $10,713.90 per annum. He also argued that there were cheaper options available on the Pharmaceutical Benefits Scheme which would cost $4991.76 per annum. It  is claimed that during the coming years due to patent expiry and generic production of drugs, the cost of antiretroviral treatment would likely further reduce in the coming years. [Doctor A], also sets out that as part of routine monitoring the applicant would have his viral load ($180.25) measured twice per annum and kidney ($17.70) and liver function tests ($17.70) annually. This would cost $76.40 per annum for GP visits and $395.90 AUD for pathology. According to [Doctor A], this would equate to a health care cost per annum of $5,463.96 and $27,319.80 over 5 years without discounting for drug costs. The representative for the applicant submits that in accordance with the schedule set out by [Doctor A], the full costs of $54,639.90 for the applicant’s treatment over the 10 year assessment period, could reasonably be predicted to be reduced. In addition, while costs over for $49,000 are to be regarded as significant, it could reasonably be predicted that the applicant’s costs may fall below this threshold.

30. The Tribunal acknowledges that as a treatment for HIV advances, and more medication comes of patent, that there is the potential for the hypothetical costs as assessed by the MOC to reduce. However, the Tribunal must take the current estimate is correct and it is unable to attribute much weight the potential for those costs to decrease for the applicant.

    Mitigation of costs through employment

31. The applicant has supplied copies of his relevant  qualifications including a Certificate III in Commercial Cookery, and a Diploma of Hospitality. He has worked in the position of Restaurant Manager for is sponsoring employer since December 2014, and has 13 years experience in the hospitality industry. The updated employment contract supplied to the Tribunal documents that his base salary has now increased, as of 1 November 2018, to $105,000 plus superannuation. This is a substantial increase from his original nominated employment salary of $55,000. In the supporting letter provided to the Tribunal, [Manager A], the managing director of his sponsoring employer, sets out that the increase in salary gives the applicant full recognition for his dedication and outstanding performance over the years. It is also claimed that applicant is a great asset to the business, that he has contributed a lot to the business, and that his role was vital to the continuous operation of the business and his skills and experience were irreplaceable.

32. The Notices of Assessment provided for the financial year ending 30 June 2019, records of the applicant had a taxation contribution of $16,722.72 in that year.

33. The applicant has not employed in a regional area, rather than the Sydney CBD. In addition, his occupation is not listed on the skilled shortage list for New South Wales or Australia wide

34. The Tribunal accepts that the applicant has demonstrated a capacity to increase his earnings significantly, and arguable his capacity to mitigate his costs of treatment. Further, that he is a self-supporting and productive taxpayer. Over the relevant 10 year period he will arguably contribute $167,227 and taxation payments, which is in excess of the assessed costs of $115,000. It is however noted, that Australian taxation payments are made to meet all the services provided by government to the Australian community, with medical subsidies being only a very small part of those services. The total tax paid by the applicant covers all government services not just medical expenses.

    Mitigation of costs through savings and resources

35. In addition to his income from employment, the applicant is the registered proprietor of two residential units. He is the owner of a two bedroom apartment at [Address 1]. The applicant has submitted evidence that he purchased the property in 2013 for $849,000. The certificate of title submitted records there is no mortgage on the property. In his statement the applicant sets out the unit is currently tenanted for a rental income of $850 per week, providing him with an annual rental income of approximately $44,200. The applicant has provided evidence in 2017 of the sale of the comparable unit in the complex for approximately $1 million, the applicant submits his property holds a similar value. In May 2019, the applicant has provided evidence that he purchased another unit in [Address 2]. Although no valuation has been produced, the applicant has submitted that the current market value of this property is approximately $2 million. The property is subject to a mortgage with [Bank 2], and details of the mortgage have not been submitted.

1. The applicant has also provided a statement from his [Bank 1] account, which records that as at 25 March 2020 he has savings of $82,550.70. Before the delegate the applicant also provided superannuation investments as at 30 June 2017, in the sum of $12,930. It is probable that the superannuation balance has increased since 2016, particularly given the increase in the applicant’s salary. Also, the applicant has provided evidence of ongoing health insurance to further assist with medical expenses.

2. It would appear that the applicant has real estate valued at several million Australian dollars to draw upon for financial support. Without evidence of the mortgage the tribunal is unable to assess the true equity, however it is accepted that it is significant. As well, the applicant has considerable savings. It is accepted that these combined assets should be afforded some weight, and could go some way to mitigate the potential cost for the applicant.

   Compelling and Compassionate Reasons

3. As set out above, the applicant’s employer is highly supportive of the visa application, and considers the applicant’s continued employment essential to the operation of the business. In his letter, [Manager A], refers to the impact of COVID-19 on the restaurant business, and attributes in part the survival of the business to the applicant. He has submitted that when restrictions were implemented in NSW the applicant worked with the kitchen to design takeaway meals and implement necessary safety measures. As the COVID-19 restrictions were easing, [Manager A] has argued that having an experienced and skilled restaurant manager provided the business with an edge in a very competitive market.

4. The applicant, and his cousin, [Cousin A], have set out that he provides essential care and support for his aunt, [name], an Australian citizen. The applicant has resided with his aunt for many years. She suffers from a combination of complex heart and lung conditions which have required frequent hospitalisations. The applicant has been instrumental in ensuring that she has obtained necessary hospital admissions and treatment. Furthermore, he has provided her with assistance in the course of her treatment due to her limited English ability. [Cousin A], who is also a permanent resident, has set out in her statement that she considers the applicant to be a brother. She claimed that she relies on him for support emotionally, and with assistance in caring for her mother. [Cousin A] has provided an undertaking that she was willing to provide unconditional financial support for the applicant should he require it in the future. Further, in 2017 she demonstrated that she was the owner of an unencumbered commercial unit valued between $875,000 and $925,000, with bank savings of $467,815.50 that could be drawn upon for such support.

5. [Cousin A], appears to be the only relative whom the applicant has informed of his HIV status. If the waiver was not exercised in the applicant was required to return to his home country, he has set out his great concern about having to inform both his mother and his aunt of his medical status. He considers this would bring both considerable shame and significant distress to the elderly women.

6. The applicant has submitted that he has spent 13 years in Australia, bought property in Australia, and plan to spend the rest of his life in the country. In his statement he sets out his commitment to the Australian lifestyle and that he would without any social network were he to return to his home country.

7. Finally, the applicant has raised extensive concerns about his ability to continue his treatment if he was required to return to China. He has set out that he was first diagnosed in Australia, and all of his treatment has been in Australia. He is concerned that HIV treatment is not so well advanced in his home country, and the medication that he is currently receiving may not be available. The applicant also sets out his concerns about discrimination in employment due to his HIV status. This is a concern echoed in the submission of his cousin, who further sets out the Chinese society does not understand HIV well, that there is generally a negative bias and that people will try to stay away from the applicant. Before the delegate the applicant produced several news articles regarding the treatment of people with HIV in China. The Tribunal accepts that it is reported that people with HIV experience difficulty obtaining medical treatment for conditions other than HIV, particularly if surgical treatment is required. Further, that there is general stigma and discrimination against many people which is faced on a daily basis, that not only prevents them from accessing HIV services, but other services, such as employment, education and health care.

   Conclusion

8. The assessed costs of a person with the applicant’s condition have been significantly reduced in light of the updated Departmental policy, however they still exceed the policy threshold of significant. The applicant is not working in a regional area and his nominated occupation is not on the Australia-wide or NSW skilled shortage list. However, his employer has provided evidence to the Tribunal that it is strongly supportive of the visa application and submits that the applicant is essential to the operation of the Australian business. The applicant is in good health, has responded well to his treatment and is expected to enjoy a normal working life. In addition, the applicant has demonstrated significant financial resources and also the ability to considerably improve his earnings through employment. The applicant as well has the benefit of health insurance. It is considered that there is considerable capacity to mitigate the financial costs involved, and this carries some weight in favour of the exercise of the discretion. The applicant has the support of family members, and his cousin also offers financial support. Although this is not enforceable the Tribunal has had regard to the considerable submission provided by the applicant and [Cousin A] regarding their family connection and support so far. The Tribunal accepts, that if necessary, he could call on her for assistance. It is claimed, and the Tribunal accepts, that the applicant plays an important role in the care and support of his family members who are Australian citizens or permanent residents The Tribunal has also taken into consideration the evidence that if the applicant was to return to China, he would face a disruption in his medication and treatment regime which may adversely affect his health. The Tribunal has also had regard to the stigma and discrimination that may be experienced by the applicant in accessing employment and healthcare. 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, and there are compelling and compassionate reasons for the waiver to be exercised.

9. For these reasons, the Tribunal is satisfied that the granting of the visa to the applicants would be unlikely to result in undue costs 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.

10. 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

11. The Tribunal remits the application for an  Employer Nomination (Permanent) visa for reconsideration, with the direction that the 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.

    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.