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

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).
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.
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.
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
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].
The issue in this review is whether the…

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: [2020] AATA 3743
Decision Date: 8 July 2020

CaseChat Overview and Summary

This matter concerned an application for a Subclass 186 Employer Nomination Scheme visa by the applicant, who sought to work as a Restaurant Manager for [Employer 1]. The central issue before the Tribunal was whether the applicant met Public Interest Criterion (PIC) 4007, which requires applicants to be free from certain diseases or conditions that could impose a significant cost on the Australian community, or whether a waiver of this requirement should be granted.

The Tribunal was required to determine if the applicant satisfied PIC 4007, specifically concerning the potential cost to the Australian community arising from his asymptomatic HIV infection. This involved assessing the opinions of Medical Officers of the Commonwealth (MOCs) regarding the likely costs of treatment and considering whether the applicant's circumstances warranted a waiver of the health requirement. The Tribunal also had to consider the applicant's submissions regarding the potential impact of returning to China on his treatment and the risk of stigma and discrimination.

The Tribunal's reasoning focused on the evolving MOC opinions and the applicant's personal circumstances. An initial MOC opinion in March 2017 assessed the likely cost of treatment at $621,000. A subsequent opinion in October 2017 maintained this cost assessment, leading to the refusal of the visa by the delegate. However, a fresh MOC opinion obtained in March 2020, following an invitation from the Tribunal, reduced the estimated cost of treatment to $135,000. While this amount still exceeded the policy threshold for significant cost, the Tribunal weighed this against several factors. These included the applicant's good health, positive response to treatment, expected normal working life, significant financial resources, capacity to increase earnings, and health insurance. Furthermore, the Tribunal considered the applicant's essential role in the Australian business, the strong support from his employer, and the potential disruption to his medical treatment and risk of stigma and discrimination if he were to return to China. The Tribunal concluded that these factors, taken together, demonstrated compelling and compassionate reasons for granting a waiver, and that the granting of the visa would be unlikely to result in an undue cost to the Australian community.

The Tribunal remitted the matter for reconsideration, finding that the applicant had established compelling and compassionate reasons for the waiver of the health requirement to be exercised.

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

Decision

Reasons for decision

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 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.

Ratio Decidendi

Legal Principle Established

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