1826006 (Migration) - [2021] AATA 5464

1826006 (Migration) [2021] AATA 5464 (30 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1826006
COUNTRY OF REFERENCE:                   Zimbabwe
MEMBER:Penelope Hunter
DATE:30 September 2021
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 30 September 2021 at 4:12pm
CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – health criteria – significant costs to the Australian community – mild Autism Spectrum Disorder – Attention Deficit Hyperactivity Disorder – MOC opinion – waiver of requirement – whether visa grant would result in ‘undue cost’ – actual condition as distinct from the hypothetical person – ability to mitigate costs – compassionate and compelling circumstances – 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 Home Affairs on 20 August 2018 to refuse to grant the applicants Employer Nomination (Permanent) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicants applied for the visas on 8 March 2017. 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 (Cth) (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4007 of Schedule 4 to the Regulations was not met.
The applicants were invited to attend a hearing before the Tribunal on 27 September 2021, to give evidence and present arguments. The hearing was held via MS Teams video during the COVID‑19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. 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 video. The applicants were represented in relation to the application for review. The applicant and their representative attended the hearing via video, and the second named applicant attended via telephone.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant…

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.

Continue reading 1826006 (Migration)

Details

AGLC: 1826006 (Migration) [2021] AATA 5464
Case: [2021] AATA 5464
Decision Date: 30 September 2021

CaseChat Overview and Summary

This matter concerned an appeal by a citizen of Zimbabwe and his family against the refusal of their Subclass 186 Employer Nomination (Permanent) visa. The central issue was whether the applicant's youngest son met Public Interest Criterion (PIC) 4007, which requires visa applicants to be free from diseases or conditions that could result in significant costs to the Australian community or prejudice access to health and community services. Medical assessments indicated the son had mild Autism Spectrum Disorder, Attention Deficit Hyperactivity Disorder, and a learning disorder, with estimated future costs to the community ranging from $703,000 to $523,000.

The Tribunal was required to determine whether the estimated costs associated with the son's conditions would result in "undue cost" to the Australian community, thereby necessitating a waiver of PIC 4007. This involved assessing the actual condition of the child, the potential for mitigating costs, and whether compassionate and compelling circumstances existed to justify granting the visa despite the potential costs. The Tribunal also considered the applicants' financial resources, the skills and employment prospects of both parents, and the potential adverse impact on the child's development and well-being if the family were required to return to Zimbabwe.

The Tribunal reasoned that while the initial MOC opinions indicated significant potential costs, updated evidence and departmental policy had reduced these estimates. Crucially, the Tribunal accepted that the applicants possessed sufficient financial resources and had demonstrated a capacity to mitigate the actual costs associated with their son's condition through private interventions and insurance. Furthermore, the Tribunal found that the applicant possessed highly sought-after skills in an occupation in demand in Australia, and his wife also had potential to contribute to the workforce. The Tribunal also gave significant weight to the compassionate and compelling circumstances, noting the potential negative impact on the child's development and the family's well-being if they were forced to return to Zimbabwe, where similar support services were unavailable and stigma attached to his condition.

Consequently, the Tribunal concluded that granting the visa would be unlikely to result in an undue cost to the Australian community or undue prejudice to access to services. The Tribunal remitted the application for reconsideration, directing that the first applicant met PIC 4007(2)(b) for the purposes of the visa criteria.

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 is a citizen of Zimbabwe, and the primary visa applicant for the grant of a Subclass 186 visa, in the nominated position of accountant. The [second named applicant] is his wife. [The third named applicant] and [the fourth named applicant] are their sons. 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 visa applicants were required to be assessed by the Medical Officer of the Commonwealth (MOC). The assessment by the MOC of the applicant’s son [the fourth named applicant] dated 21 February 2017, found that there was insufficient information as to whether he met the health requirement and further information from a specialist paediatrician and/or developmental psychologist was requested, together with information from his school outlining any specialist services required. Submissions were made by the visa applicants to the Department in response to this opinion; these submissions included reports from psychologist [Ms A] dated 13 February 2018, a report from [Dr B], neurodevelopmental paediatrician dated 27 March 2018 and semester 2 report 2017 from [School 1] and 4 September 2017. On 9 April 2018, a further opinion was provided by an MOC with the finding that [the fourth named applicant] was a [age] year-old person with mild Autism Spectrum Disorder, with a concurrent learning disorder and Attention Deficit Hyperactivity Disorder. It was assessed that a hypothetical person with the condition in the form and severity of [the fourth named applicant] would likely be eligible to receive ongoing supported education, state and Commonwealth disability services and the disability support pension in the future. The provision of these health care and/or community services were likely to result in significant costs to the Australian community, which were assessed as $703,000. This opinion was sent to the visa applicants for comment. The applicant provided to the Department a further report from [Dr B] dated 19 June 2018, a report from speech pathologist [Ms C] dated 21 June 2018, and report from principal [Ms D] dated 6 July 2018, for the purposes of an additional MOC opinion. On 11 July 2018, a further opinion was provided by an MOC with the finding that [the fourth named applicant] was an [age] year-old person with mild Autism Spectrum Disorder, with a concurrent learning disorder and Attention Deficit Disorder. It was again assessed that a hypothetical person with the condition in the form and severity of [the fourth named applicant] would likely require state disability services and special education services. The provision of these health care as well as special education services, likely to result in significant costs to the Australian community, which were assessed as $523,000.

Decision

Reasons for decision

It is noted that the applicant’s salary as per the approved nomination was $104,110. However, in the most recent financial year, the income tax summary submitted documents that he received a salary of $153,400, and paid income tax contribution of $41,825. In addition, according to the income summary submitted, [the second named applicant] received a salary of $31,132 in the year ending 20 June 2021, and less deductions provided an approximate taxation contribution of $1,500[1]. The applicant told the Tribunal that there remains further opportunity for him for career progression within his nominating employer, and he anticipates improving his remuneration in the immediate future. [The second named applicant] has limited her employment hours due to the caring responsibilities for their children. Her evidence to the Tribunal was that as her children mature, she intends to increase her working hours and she is keen to pursue qualifications as a registered nurse. It is accepted that over the relevant period the applicant and [the second named applicant] have the potential to contribute income tax considerably above the assessed costs over the relevant period. It is noted that Australian tax payments are made to meet all the services provided by the government to the Australian community, with educational subsidies being only a very small part of those services. The total tax paid by the applicant and [the second named applicant] cover all government services, however the Tribunal accepts that they can contribute their respective portion towards items such as special education services and NDIS funding.[1] Income tax calculated on taxable income of $26,081 as per summary type="1">Not only has the family remuneration increased since the matter was for consideration before the Department, but the applicant’s have also increased their financial resources. Before the Department they had total savings of $10,406.73, and a superannuation balance of $21,221.71, as well as a motor vehicle. The updated evidence presented to the Tribunal was that in addition to maintaining their motor vehicle, with their respective savings and share investments, they have accumulated further savings of $41,171.49, and the applicant has a superannuation balance as at 30 June 2021 of $82,825.21. While these assets are modest, they have been accumulated in circumstances where they have personally met the costs of the interventions delivered to [the fourth named applicant], and there is no reason to assume that they would not be able to do so if the visa was granted in the future. Skills of the visa applicantsThe applicant is not employed in a regional area, however his nominated position of Accountant ANZSCO 221111, is on both the Medium to Long-Term Skilled Shortage List and the Priority Migration Skilled Occupation List. The applicant is not engaged in low skilled tasks in his position. He holds bachelor and post graduate qualifications in accounting. He has professional experience which includes over 15 year employment with [Employer 2] in South Africa, Zimbabwe and Australia, as well as secondments in the UK and the USA. In Australia he had been working for his nominating employer [Employer 2] since February 2015. The Tribunal accepts that his nominating employer is supportive of him continuing in his role, and notes from the letter of reference provided to the Department that the applicant was sponsored from the South African branch of the firm due to his recognised skills in audit. In his role, the applicant is involved in the supervision and training of staff, and he is currently team leader and mentor of [number] other staff. In addition, the applicant is a subscribed member of the Chartered Accountants Australia and New Zealand. The applicant provided evidence to the Tribunal that he was an active participant and contributor to the Australian Accounting Profession (by attending and contributing to the Australia Accounting Standards Board Webinars and Round tables which are critical for the development and revision of Accounting Standards).It is accepted that the applicant has qualifications, skills and experience that are desired and are identified in need in the Australian workforce. [The second named applicant] holds a bachelor degree in [Discipline 1]. Since October 2018 she has worked as an in-home carer for [Employer 1], and the evidence is that she is currently undertaking a Certificate III in [Subject 1]. In her reference, [Ms H], comments that in her role [the second named applicant] has made a significant contribution towards the care of the elderly. The Tribunal accepts the submission of the representative for the applicants, that with projected shortages over the next 10 years, it is likely that there will be demand for [the second named applicant] into the future in her current role. Additionally, in her evidence [the second named applicant] told the Tribunal that she wished to continue to work in the health care field and that it was her intention in the future to undertake study by way of a bachelors degree in nursing. She saw this as providing a good career path, and it was only uncertainty regarding the family visa status that had delayed her pursuing this qualification. The Tribunal accepts that in the event that she does undertake these studies, she will also be contributing to an occupation in demand and she also has the potential to provide skills and experience that are desired and in need in the Australian workforce. Compassionate and Compelling circumstancesThe medical and education evidence provided in respect of [the fourth named applicant], as acknowledged above, document that he has made significant learning, language and social gains. He is poised to enter a supported class within a mainstream school and on the pathway to continue on to mainstream classes. Both the applicant and [the second named applicant] told the Tribunal that they were very concerned that all these gains would be undermined if [the fourth named applicant] were to return to Zimbabwe. The evidence was that many of the facilities that have helped to deliver his current positive learning outcomes are not available, and that there was minimal assistance that could be accessed within the education system in general. The applicant also identified that there was a lot of stigma attached to his condition. [The fourth named applicant] was an English speaker, and his ability to develop functional English skills had been obtained through several years of intervention. Although the language of instruction in schools in Zimbabwe was generally English, it was identified that [the fourth named applicant] was not familiar with other languages spoken in Zimbabwe, such as Shona, spoken by roughly 70% of the population. For [the fourth named applicant], have to commence again obtaining further language skills would also be disadvantageous. The applicant was concerned that [the fourth named applicant] would not get the assistance that he needs to reach his potential. [The second named applicant] also identified for the Tribunal additional difficulties, that [the fourth named applicant] with his Autism Spectrum Disorder would experience adapting to a new and considerably different environment. They were united in their view that it would not lead to a positive outcome for their son. Their youngest son was also born in Australia and had only known life in Australia. The applicant acknowledged that he would be likely be able to find work in Zimbabwe, but there is limited opportunity for the complex role that he is currently performing and smaller possibilities for remuneration. This in turn would affect his ability to provide for his family and pay for any treatment or interventions necessary to assist [the fourth named applicant]. The visa applicant family have been attending the [Church 1], and in a letter of support [Pastor E], confirms their involvement in church activities and connect groups. The evidence is that the applicant and [the second named applicant] have sought to make a contribution to the various communities in which they engage with their family. The applicant contributes to several charitable causes through the [Event 1], and both are active in their children’s schools and former pre-schools. The Tribunal also accepts that in the past 6 years that they have resided in Australia that they have established a number of supportive friends in the Australian community. The applicant has a sister residing in Queensland, and [the second named applicant] a brother in Western Australia, the evidence is when travel is possible the families have gotten together to visit and celebrate occasions such as Christmas. The Tribunal also places weight on the Health Information Waiver provided by the RMOC. In particular it is stated that [the fourth named applicant] was free from a disease or condition that is, or may result in his being a threat to public health in Australia or a danger to the Australian community. Further the RMOC state that in their opinion for the assessed period of [the fourth named applicant]’s stay he would not be likely to prejudice the access of an Australian citizen or permanent resident to health care or community services. Conclusion Overall, the Tribunal notes that the relevant costs as assessed for the [the fourth named applicant] have significantly reduced in light of the updated Departmental policy and the reported developmental gains made by [the fourth named applicant]. The Tribunal also accepts the evidence that, the visa applicant family possess the financial resources, health and other insurances to mitigate [the fourth named applicant]’s actual costs. The applicant has secure full-time employment, and the realistic potential to improve the family’s financial resources. [The second named applicant] can also contribute to the financial position of the family. The Tribunal also has regard to the fact that the applicant is supported by his employer. He is working in an occupation in high demand, and contributes to training and mentoring with his current employer and to standards throughout the industry. In the current environment in Australia it is accepted that the visa applicant family have an opportunity to contribute to the skills and employment needs of the Australian community. The Tribunal has also taken into consideration the evidence that were the visa applicants to return to Zimbabwe it could have an adverse effect the health and development of [the fourth named applicant], his ability to achieve further potential development gains, and on that of his family in general. 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. For these reasons, the Tribunal is satisfied that the granting of the visa to the visa applicants 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. Other mattersAs identified to the visa applicants at the hearing, the Departmental file for the visa applicants contained a certificate issued pursuant to s.375A of the Act, this applied to page 18 of the ICSE notes contained in the Department’s digital file [number] TRIM reference [number], which related to investigations undertaken by the Department as part of the visa processing, on the basis that disclosure would be contrary to public interest because it discloses lawful methods for preventing, detecting and investigating breaches or evasions of the law and would likely prejudice the effectiveness of those methods. The Tribunal considers the certificate to be valid. However, the Tribunal has carefully considered the information covered by the certificate and does not consider that it is relevant to the determinative issue on review, being whether the applicant satisfies the health requirement for the visa, cl.186.224. Accordingly, the Tribunal has placed no weight on this information in reaching a decision on this review. 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.DECISIONThe 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.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

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