1802513 (Migration)

[2019] AATA 3354

1802513 (Migration) [2019] AATA 3354 (27 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1802513

MEMBER:Alan McMurran

DATE:27 March 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) visa.

Statement made on 27 March 2019 at 1:58pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – health criteria – asymptomatic HIV infection – undetectable viral load – MOC opinion – require long term specialist health care services – significant cost to the Australian community – no provision for waiver of requirement – exceptional and other benefits to Australia – continuing and growing need for profession – strong compassionate circumstances – relationship with Australian citizen partner – Ministerial Intervention requested – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), r 2.25A; Schedule 2, cl 187.235; Schedule 4, PIC 4005

CASES
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 a Regional Employer Nomination (Permanent) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 25 December 2016. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.187.235 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4005 of Schedule 4 to the Regulations was not met.

3. The applicant appeared before the Tribunal on 22 March 2019 to give evidence and present arguments. The applicant is a [Occupation 1] in the New South Wales [Industry 1], and requested for privacy reasons that this decision be treated confidentially and that her name not be revealed or details concerning her health condition. The Tribunal agreed to grant the request and to make a restricted-publication direction under s.378 on completion of these reasons.

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this review is whether the visa applicant meets Public Interest Criterion (PIC) 4005 as required by the criteria for the grant of the visa. Public Interest Criterion 4005, as it applies to this case, is extracted in the attachment to this decision. It requires the applicant, in certain circumstances, to undergo medical assessment, and to be free of certain diseases or conditions that may impact on the community.

6. The applicant is a [age] year old citizen of [Country 1]. The applicant has nominated her occupation as [Occupation 1] and is nominated by [Employer 1]. The applicant completed a [Qualification 1] at [University 1] in November 2014, and a [Qualification 2] at the same university in November 2016. The applicant worked for the nominator, [Employer 1], from January 2017 until December 2017. The applicant has been awaiting the outcome of this visa application to see whether or not she can return to work for [Employer 1].

7. The applicant moved to Western Sydney at the end of 2017 and took up a [position] in [Employer 2]. The applicant [works] primarily [in specified area]. The applicant is currently on a full-time [contract], ending in December 2019. It is the applicant’s intention to return to [Employer 1] in regional New South Wales, to resume [working] there should her visa application be successful. The applicant’s employment background is outlined below.

8. The applicant in this case was assessed by a Medical Officer of the Commonwealth (MOC) on 7 September 2017 and diagnosed with asymptomatic HIV infection. The assessment opined that the applicant did not meet the criterion PIC 4005(1) (c) as required by the sub-regulation 187.235(1), as the applicant was not free from a disease or condition, and which disease or condition was likely to require on-going health care at a cost to the Australian community.

9. The applicant responded to that assessment, providing her own medical report from [Dr A] dated 6 November 2017, which report opined that the applicant was on antiretroviral treatment since August 2017, was highly adherent to treatment, and has an undetectable HIV viral load.

10. The applicant was then assessed for a second time by the MOC in Form 884 dated 14 November 2017, which assessment was made against PIC 4005. The assessment was that the applicant does not satisfy PIC 4005 (1) (c) (ii) (A). The MOC opined that the applicant’s HIV infection requires antiretroviral treatment and the provision of services to a hypothetical person in Australia with the same condition as the applicant and at the same severity would be likely to require long-term specialist healthcare services. The MOC further opined that provision of these services would be likely to result in a significant cost to the Australian community in the areas of health care and community services.

11. The applicant made no further submissions and the delegate determined on 12 January 2018 that the applicant did not satisfy cl. 187.235, noting there was no provision for waiver of criterion PIC 4005, the subject of the regulation. The delegate found that the applicant was therefore unable to meet the criteria in sub-regulation 187.235 (1), noting that there was no provision for a waiver of the health criterion in PIC 4005 and that the Department was required to accept the MOC opinion.

    Is the applicant free from the relevant diseases or conditions (PIC 4005(1)(a), (b), (c))?

12. Public interest criterion 4005(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. Public interest criterion 4005(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. For specified temporary visas, certain specified health care and community service are excluded from this consideration: PIC 4005(3).

14. As the applicant in this case has applied for a permanent visa, the exclusion provision in PIC 4005(3) does not apply.

15. In determining whether a person meets PIC 4005(1)(a), (b) or (c), r.2.25A requires the Tribunal to seek the MOC’s opinion unless: the application is for a temporary visa and there is no information known to Immigration to the effect that the person may not meet those requirements; or the application is for a permanent visa and made from a specified country and there is no information known to Immigration to the effect that the person may not meet those requirements.  Where an opinion of a MOC is required, the Tribunal must take it be correct: r.2.25A (3).

    Is a MOC opinion required?

16. On the evidence, the Tribunal finds that 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.

17. The Tribunal has had regard to the MOC opinions dated 7 September 2017 and 14 November 2017. In forming those opinions, the MOC has had regard to available medical investigations including those conducted on 5 July 2017, and report from [Dr B] dated 25 August 2017 which analysed the associated pathology results. The MOC also had regard to the medical report provided by the applicant from [Dr A], dated 6 November 2017. The MOC indicated that in preparing the opinions, regard was had to this information and expressly states that the MOC has had regard to that information being the most up-to-date then available.

18. In anticipation of the hearing, the applicant provided a further medical report on 31 January 2019, together with her latest blood test results. On request from the Tribunal, made 4 February 2019, that report dated 30 January 2019 from [Dr C], together with the blood test results, was reviewed by the MOC with a view to updating the MOC’s opinion. The report from [Dr C] for the applicant says that “she will be fit to continue with her normal life and work in her current profession”, and opined that “her current HIV infection is well-controlled and will remain stable as long as she continue with treatment”.

19. The MOC provided a third report dated 7 February 2019 which was unchanged, where the MOC further opines the applicant does not satisfy PIC 4005 and sets out the information upon which the decision is based. The report states that as a person with asymptomatic HIV infection, this requires “lifelong antiretroviral treatment”. The MOC has completed the document with an authorized position number stating the report is “for the purposes of providing an opinion on whether prescribed health criteria under the migration regulations 1994 are met”. The opinion sets out that the applicant’s current condition is “likely to be Permanent.” The MOC opines that the services to a hypothetical person in Australia with the same condition as the applicant and at the same severity would be likely to require long term specialist health care services including pharmaceuticals and medical supervision. The MOC further opines that the services are likely to result in a significant cost to the Australian community in the areas of health care and / or community services.

    Has the MOC applied the correct test?

20. As noted above, the Tribunal must take the most recent MOC opinion as correct, subject to being satisfied the MOC has applied the correct test in forming an opinion, by identifying the medical condition to which the PIC has been applied, and the form or level of the condition suffered by the applicant. The MOC must have applied the statutory criteria by reference to a hypothetical person who suffers from that formal level of the condition

21. During the course of hearing, the applicant discussed with the Tribunal the MOC opinions, particularly the most recent of 7 February 2019. The applicant felt that a generic application with reference to the diagnosis by the MOC in response to the condition, operated unfairly to the applicant as she was asymptomatic, well-controlled and to all intents and purposes healthy and able to perform her occupation. The applicant felt that it was unfair that all persons suffering from the condition should be treated the same, when the symptomology for each might be different and therefore the potential costs and treatments involved also not the same. The applicant said that it had come as a surprise to her when she was diagnosed in or about July 2017, unexpectedly, and during the course of completing the health check requirements in Australia for the visa. The applicant said that at that time, the nomination had been approved and she had been contacted by the Department and informed that the visa application was “all in order” and that all that was left for her to complete approval for the visa was the health check.

22. The Tribunal notes that at the hearing, the applicant did not require any further examination or medical assessment. The applicant accepts that the three opinions produced by the MOC have not changed, even though she has received in her view an assurance by her own treating medical practitioner that her condition is “stable”, had been diagnosed at an early stage and was manageable and controlled with continuing treatment. The applicant felt that with time, the further costs of ongoing treatment will reduce, as will the risk of ongoing costs to the Australian community in the areas of health care and community services. The applicant submitted that she is otherwise healthy, working full-time, in a stable relationship and able to support herself financially and without the need for any other community support or assistance.

23. The Tribunal has had regard to the applicant’s submissions and oral evidence. However, it is required by regulation 2.25A to take the MOC opinion to be correct. The MOC opinion of 7 February 2019 states that the applicant does not met PIC 4005 for the period of a permanent stay in Australia. The opinion clearly identifies the applicant as a [age]-year-old person with asymptomatic HIV infection. The MOC considers a hypothetical person with this disease or condition at the same severity as the applicant is likely to require healthcare and/or community services, including medical services and pharmaceuticals. The MOC concludes the provision of these services would be likely to result in a significant cost to the Australian community in the areas of healthcare and/or community services. The Tribunal finds it is satisfied that the MOC applied the correct test in forming this opinion as considered in Robinson v MIMIA (2005) 148 FCR 182, and Ramlu v MIMIA [2005] FMCA 1735.

24. Accordingly, based on the opinion of the MOC, the Tribunal finds that the applicant does not satisfy public interest criterion 4005(1) (c).

    Is this an appropriate case to refer to the Minister?

25. At the hearing, the Tribunal asked the applicant whether she had been aware of the possible outcome of these proceedings. The applicant said that she had understood the MOC opinion must be followed by the Tribunal, however, she held out hope that there may be some consideration for her circumstances, which she then discussed with the Tribunal in some detail. The Tribunal informed the applicant of the provisions of section 351 of the Act where the Minister has the authority if in the public interest to do so, to substitute a decision of the Tribunal for a more favourable decision to the applicant.

    The applicant’s personal circumstances

26. The applicant gave a history of having arrived in Australia to study in 2014, which studies were successfully completed and enabled her to obtain employment as a [Occupation 1] in regional Australia. The applicant said that at the time of her nomination and the visa application she was completely unaware of the diagnosis. In July 2017, when she became aware, the applicant had a discussion with the nominator as to whether they might then sponsor her for a temporary visa so as to invoke the discretion applicable in PIC 4007 where there is a waiver provision. The applicant had become aware that there is no such discretion in PIC 4005. The nominator indicated however that it would only continue with the current application, which nomination had already been approved.

27. The applicant said that she had spoken to very few people about the condition, which she could “count on one hand”. She said that as a [Occupation 1] in [Industry 1], it was not uncommon for [individuals] to research the Internet to obtain information about [her]. The applicant was concerned that the Tribunal and the Department not disclose the details of her health condition and keep the matter confidential. The applicant said that she had met her partner in about July 2017, when researching on the Internet for community or other support groups. She said she was able to share the information with her partner and with whom she has formed a close relationship. She said her partner is an Australian citizen, and they have moved to Sydney while awaiting the visa application outcome, and where they are living together. The applicant said her current employment started with a casual contract, which became full-time for a period of 12 months at the end of 2018. The applicant has supplied a copy of a reference from [Employer 2] where she is currently [working]. The reference attaches her current [work] schedule which is [full-time]. The applicant said that if she is compelled to leave Australia, this will place an undue strain on the [employer’s] resources and also potentially disadvantage some of her [clients].

28. The applicant said that she wanted to move back to [City 1] to resume her regional [position]. She said that it was very difficult for the [employer] to recruit [staff] in regional Australia and that she would be able to continue [working] in a full-time role. She said that she and her partner would like to move to [City 1] with a view to purchasing a property and living there permanently. She said her partner works substantially from home as a [Occupation 2]. She said her partner is an only child and looks after his elderly mother who lives at [Town 1], and it would be difficult for him to leave Australia to be with the applicant if she were compelled to return to [Country 1]. She said they have a stable relationship which they would both like to continue, but that would be extremely difficult once they were separated. The applicant said she has two cousins in Australia, one in Melbourne and one in Sydney and one of whom she thought was a permanent resident. Although she does not see them on a regular basis, she said they are in contact and have a close family relationship. The applicant’s parents are still living in [Country 1] with her two brothers.

29. The applicant said that she has been active in the community since moving to Sydney, and joined [a Catholic church]. The applicant provided a letter dated 15 January 2019 from the parish priest at [Suburb 1]. The letter refers to the applicant’s volunteer work in a number of ministries and groups. The applicant said she is keen to continue with her volunteering. The applicant also provided a letter from [a charity] programs coordinator dated 8 January 2019, which refers to the applicant’s volunteer role [in assisting individuals]. The applicant said she works with disadvantaged [communities] in [Suburb 2], who are part of the [Charity’s program]. The applicant said she has been doing this work continuously since about September 2018.

30. The Tribunal explained to the applicant that the Department decision must be affirmed. The Tribunal asked the applicant if she wish to make any further or other comments, or if there was any further or other information she sought to provide. The applicant did not wish to make any further comments and was clearly distressed with this outcome. The Tribunal provided the applicant with a brochure from the Department setting out details of where she may seek immigration assistance.

31. The Tribunal has paid careful regard to the applicant’s comments in the hearing and the medical opinions provided. Having regard to the applicant’s personal circumstances, the Tribunal considers this to be an appropriate case where the Minister might consider a waiver, replacing the decision made by the Tribunal with one more favourable to the applicant.[1]

    [1] See s. 351 of the Act

32. In this regard, the Tribunal notes the applicant has completed two [qualifications] at [University 1] and now is an experienced and qualified [Occupation 1] successfully nominated for a position in a regional [employer] at [City 1] in New South Wales. There is a continuing and growing need for experienced [Occupation 1] in regional Australia. The applicant has given evidence of her commitment to her profession and to the volunteer work she currently performs through her church and also with the [charity]. The applicant has explained her relationship with her Australian partner and the hardship which would be caused to that family unit were she to be removed and unable to remain as an Australian permanent resident. The applicant has provided evidence of her skills and ability which is recognised by her employers and the community organisations with which she is involved. The applicant has demonstrated a commitment to becoming a valuable member of society and making a substantial commitment to Australia and through her profession as a [Occupation 1]. The applicant has pointed to the stable nature of her diagnosed condition, and her ability to provide for herself and to remain financially independent through employment. Although the applicant has parents and siblings in [Country 1], she has pointed to the fact she has two cousins living in Australia permanently and the settled relationship with her Australian partner.

1. The Tribunal is of the view that having regard to this evidence, the applicant’s circumstances are capable of meeting the Minister’s criteria that there would be exceptional and other benefits to Australia from allowing the applicant to remain here, as well a strong compassionate circumstances as set out in the Minister’s guidelines, arising from the relationship with the applicant’s Australian partner and the creation of their Australian family unit.

2. As a result, the Tribunal considers it appropriate to request that this case be brought to the attention of the Minister in order for him to consider whether it is appropriate to exercise discretionary intervention powers under section 351 of the Act.

   DECISION

3. As the applicant has not satisfied the requirements of PIC 4005, the Tribunal must affirm the decision under review.

4. The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) visa.

   Alan McMurran
   Member

   
   

   ATTACHMENT

   Migration Regulations 1994

   Schedule 4

   4005(1)         The applicant:

   (aa)if the applicant is in a class of persons specified by the Minister in an instrument in writing for this paragraph:

   (i)must undertake any medical assessment specified in the instrument; and

   (ii)must be assessed by the person specified in the instrument;

   unless a Medical Officer of the Commonwealth decides otherwise; and

   (ab)must comply with any request by a Medical Officer of the Commonwealth to undertake a medical assessment; and

   (a)is free from tuberculosis; and

   (b)is free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community; and

   (c)is free from a disease or condition in relation to which:

   (i)a person who has it would be likely to:

   (A)require health care or community services; or

   (B)meet the medical criteria for the provision of a community service;

   during the period described in subclause (2); and

   (ii)the provision of the health care or community services would be likely to:

   (A)result in a significant cost to the Australian community in the areas of health care and community services; or

   (B)prejudice the access of an Australian citizen or permanent resident to health care or community services;

   regardless of whether the health care or community services will actually be used in connection with the applicant; and

   (d)if the applicant is a person from whom a Medical Officer of the Commonwealth has requested a signed undertaking to present himself or herself to a health authority in the State or Territory of intended residence in Australia for a follow-up medical assessment — has provided the undertaking.

   (2)For subparagraph (1) (c) (i), the period is:

   (a)for an application for a permanent visa — the period commencing when the application is made; or

   (b)for an application for a temporary visa:

   (i)the period for which the Minister intends to grant the visa; or

   (ii)if the visa is of a subclass specified by the Minister in an instrument in writing for this subparagraph — the period commencing when the application is made.

   (3)If:

   (a)the applicant applies for a temporary visa; and

   (b)the subclass being applied for is not specified by the Minister in an instrument in writing made for subparagraph (2) (b) (ii);

   the reference in sub-subparagraph (1) (c) (ii) (A) to health care and community services does not include the health care and community services specified by the Minister in an instrument in writing made for this subclause.