1826006 (Migration)
[2021] AATA 5464
•30 September 2021
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 remittedLEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.25A; Schedule 2, cl 186.224; Schedule 4, PIC 4007CASES
Bui v MIMA (1999) 85 FCR 134
Ramlu v MIMIA [2005] FMCA 1735
Robinson v MIMIA (2005) 148 FCR 182Any 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 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.
The delegate who considered the application found that [the fourth named applicant] did not satisfy the criteria in PIC 4007(c)(ii)(A) 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 applications.
The Tribunal received an application for review from the applicants on 6 September 2018. On 12 August 2021, the Tribunal invited the visa applicants to obtain an updated MOC opinion. The applicants accepted this invitation and again the matter was referred to the Review Medical Officer of the Commonwealth (RMOC).
On 31 August 2021, the RMOC provided an opinion that [the fourth named applicant] was an [age] year-old person with a mild Autism Spectrum Disorder with concurrent learning disorder and Attention Deficit Hyperactivity Disorder. It is noted that the opinion is provided subsequent to policy changes to the significant cost threshold and the assessment period guidelines dated 1 July 2019, and the police change to the use of state disability service and National Disability Insurance Scheme costs dated 1 April 2020. The RMOC further provided the opinion that the likely costs of services, in the form of special education services for a hypothetical person with the same condition would be assessed as $278,000. The RMOC concluded that [the fourth named applicant] did not meet the health requirement for the purposes of PIC 4007(c)(ii)(A).
The opinion of the RMOC and the Health Waiver Information was provided to the applicants for comment and the Tribunal received the following further information and submissions:
i.Submissions of the applicant’s representative dated 20 September 2021.
ii.Recent payslip of the applicant.
iii.Income tax return summary for the applicant for the year ending 30 June 2021.
iv.Income tax return summary for the second named applicant for the year ending 30 June 2021.
v.Confirmation of employment letter, from [Employer 1], for the second named applicant.
vi.[Bank 1] account statement for the applicant for the period 4 August 2021 to 2 September 2021, closing balance $4,005.09.
vii.[Bank 1] account statement for the second named applicant for the period 5 August 2021 to 27 August 2021, closing balance $1,000.
viii.[Bank 1] Investment account for the applicant transaction statement for the period 1 January 2021 to 2 September 2021, balance as at 31 August 2021 $27,518.74.
ix.[Investment] Portfolio statement for the applicant, current balance as at 20 August 2021, $3,047.51.
x.[Bank 2] savings account balance for the second named applicant as at 2 September 2021, $5,600.25.
xi.Superannuation account for the applicant, closing balance 19 August 2021, $82,825.21.
xii.Letter of confirmation of voluntary assistance provided by the applicant to [School 2], and 2021 Certificate of Appreciation Community Participation.
xiii.Letter confirming fundraising contribution by applicant, [Event 1] 2019-2020.
xiv.Letter of Support, [Pastor E], [Church 1] dated 22 June 2018.
xv.Statement of service regarding voluntary work by the second name applicant at [School 1].
xvi.Enrolment letter for [the fourth named applicant], [School 3] to commence in 2022, year 6.
xvii.Reports from [Dr B] dated June 2018 and 6 September 2021.
xviii.Evaluation report of [Ms F], registered psychologist.
xix.Diagnostic report of [Ms G] dated 31 May 2021.
xx.Adaptive Functioning Assessment, [Ms A], [School 1] dated 4 June 2021.
xxi.Evidence of health insurance with [Health insurer 1], with extras cover.
xxii.Evidence of Death and Permanent disability insurance cover for the applicant and second named applicant.
Is the applicant free from the relevant diseases or conditions (PIC 4007(1)(a), (b), (c))?
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.
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.
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.
As the applicant in this case has applied for a permanent visa, the exemption provision in PIC 4007(1B) does not apply.
In determining whether a person meets PIC 4007(1)(a), (b) or (c), reg 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: reg 2.25A(3).
Is a MOC opinion required?
On the evidence before the Tribunal, an opinion of a MOC is required. The applicants have not disputed in their submissions, or the oral evidence at hearing, that [the fourth named applicant] has the conditions of Autism Spectrum Disorder and Attention Deficit Hyperactivity Disorder, as set out the opinions of the MOC dated 9 April 2018 and 11 July 2018 and the RMOC dated 31 August 2021.
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.
There are three assessments in respect of [the fourth named applicant]’s conditions made by an MOC or RMOC. The Tribunal must have regard to the most recent assessment. The outcome of this assessment dated 31 August 2021 is that the applicant ‘does not meet the health requirement’. The RMOC has estimated the costs to be in the sum of $278,000 comprised solely of special education services.
The applicants have not disputed the validity of the opinion of the RMOC dated 31 August 2021. The Tribunal is satisfied that this opinion has identified the conditions of [the fourth named applicant], Autism Spectrum Disorder and Attention Deficit Hyperactivity Disorder. The form and severity is noted as mild, and that it results in a concurrent learning disorder. The RMOC has referred to all medical reports and information submitted. Finally, the RMOC 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 RMOC 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). The Tribunal must therefore take the opinion to be correct.
Accordingly, based on the opinion of the RMOC, [the fourth named applicant] does not satisfy PIC 4007(1)(c).
Should the requirements of PIC4007(1)(c) be waived?
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).
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. Department policy provides guidance on factors that may be relevant to this, including: the need for, and availability of, a live organ donor; an ability to access private health treatment; close family, social, emotional and community ties to Australia; the impact on any Australian citizen minor children; occupational skills of the applicant or family members; and the potential contribution to Australia by the applicant or family members.
The Tribunal has taken into account all of the written and oral evidence submitted on behalf of the visa applicants, their 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 the sum of $278,000, remains significant. However, for the following reasons the Tribunal has concluded that the granting of the visa would be unlikely to result in ‘undue cost’ to the Australian community.
Actual Condition of [the fourth named applicant] as distinct from the hypothetical person
On the information before the Tribunal, [the fourth named applicant] was diagnosed with Autism Spectrum Disorder and Attention Deficit Hyperactivity Disorder at age 3 when the family was living in South Africa. At that time he was reported to be non-verbal and presenting with some behavioural challenges. The updated medical evidence presented to the Tribunal documents that through special education and intensive speech therapy programs, which have been delivered at the costs of the applicants, he has made significant progress. It is proposed that in the year commencing 2022, [the fourth named applicant] will attend a support unit within a mainstream school, [School 3], and the Tribunal has been presented with evidence of his enrolment acceptance. This is a private school, and the evidence of the applicant to the Tribunal was that it is intended that [the fourth named applicant] will complete his education at this school. The visa applicants will bear the costs, currently $14,500 per annum. It is further hoped that in the future within this education provider he will transition to mainstream classes. [The fourth named applicant] as no other complicating medical conditions. His ongoing treatment consists of daily medication for his Attention Deficit Hyperactivity Disorder and speech therapy, the latter of which is subsidised through private health insurance maintained by the applicants. It is accepted that with his progression into mainstream school, together with the intention of the applicants to maintain [the fourth named applicant]’s education in the private system, the actual public costs of education services for [the fourth named applicant] over the relevant period may be less than that assessed for the hypothetical visa applicant. While the Tribunal must accept the opinion and Health Waiver Information provided by the RMOC as correct, it is also considered that the demonstrated progress, and response to intervention from [the fourth named applicant], in addressing his learning disorder, is a factor that may weigh favourably toward the exercise of the waiver.
Ability of the Applicant’s to Mitigate Costs
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 applicants
The 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 circumstances
The 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 matters
As 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.
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.
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.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Remedies
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