1826279 (Migration)

[2019] AATA 523

1826279 (Migration) [2019] AATA 523 (4 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1826279

MEMBER:Karen McNamara

DATE:4 March 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Skilled Independent (Permanent) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 189 - Skilled - Independent visa:

·PIC 4005(1)(c )(ii) for the purposes of cl. 189.215 of Schedule 2 to the Regulations.

Statement made on 04 March 2019 at 2:56pm

CATCHWORDS
MIGRATION – Skilled Independent (Permanent) visa – Subclass 189 – health criteria not met – updated medical advice provided to Medical Officer Commonwealth (MOC) – MOC determined health criterion met – signed undertaking in accordance with PIC 4005 (1)(d) provided – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 2.25A; Schedule 2, cl 189.215; Schedule 4, PIC 4005

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 21 August 2018 to refuse to grant the applicant a Skilled Independent (Permanent) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 16 October 2017. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.189.215 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.

   Background

3. The applicant is [an age]-year-old Nigerian citizen. The applicant is seeking the grant of a Skilled Independent (Permanent) SI Visa subclass 189.

4. The applicant has undergone numerous health assessments. On 7 February 2018, the Medical Officer of the Commonwealth (MOC) formed the view the applicant did not satisfy PIC 4005(1)(c)(ii) of the Schedule 4 Regulation. The applicant was diagnosed as having [specified medical condition].

5. The applicant in response, provided medical notes from [a medical professional] dated [May] 2018 and [June] 2018.

6. A further opinion was obtained from the MOC dated 13 July 2018. The MOC stated the previous MOC opinion should be “disregarded for the purpose of visa decision, as this current opinion is based on the most up –to – date medical information available”. The MOC concluded that the applicant continued to fail to satisfy PIC 4005.

7. On 8 November 2018, the Tribunal wrote to the applicant requesting a further opinion from the MOC, and for the applicant to respond by 22 November 2018.  The applicant sought an extension of time to obtain further medical opinion.  The Tribunal granted an extension until 4 January 2019 to provide this information. On 4 January 2019 the applicant sought a further extension with the Tribunal granting until 5 February 2019 for the applicant to provide a further medical opinion.

8. On 4 February 2019, the applicant provided a medical opinion from [another doctor] where [the doctor] stated “[The applicant]’s [medical condition] is [details deleted] which very often lasts lifetime.  He has a very good prognosis and does not have any compelling indication for [specified treatment], and I certainly would not recommend this.  In addition, he is not eligible for PBS funded [treatment].  [details deleted].”

9. On 8 February 2018, the Tribunal referred this additional medical evidence to the MOC for review and opinion.

10. On 12 February 2018, the MOC provided a further medical opinion on review which states:

    “ The applicant has been assessed against Public Interest Criterion (PIC) 4005 and meets the health requirement for a permanent stay in Australia, subject to the applicant providing a signed undertaking in accordance with PIC 4005 (1)(d).

    My opinion is based on available medical and radiological reports.”

11. On 15 February 2019, the applicant provided to the Tribunal a signed undertaking in accordance with PIC 4005 (1) (d) (Form 815) signed and dated 14 February 2019.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in this review is whether the applicant meets Public Interest Criterion (PIC) 4005 as required by the criteria for the grant of the visa. PIC 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.

13. When the applicant was assessed in July 2018, he was assessed as not satisfying PIC 4005(1)(c)(ii)(A). That was on the basis that he has [specified medical condition]; and that a hypothetical person in Australia with the same condition, at the same severity, would be likely to require long term health specialist health care or community services; and that the provision of the services would be likely to result in a significant cost to the Australian community in the areas of health care and community services.

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

14. 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). As the applicant 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 opinion of a Medical Officer of the Commonwealth (MOC) unless: the application is for a temporary visa and there is no information known to Immigration to the effect that the person may not meet those requirements; or the application is for a permanent visa and made from a specified country and there is no information known to Immigration to the effect that the person may not meet those requirements. Where an opinion of a MOC is required, the Tribunal must take it be correct: r.2.25A(3).

16. The MOC opinion dated 12 February 2019, indicates that the applicant has been assessed against PIC 4005 and meets the health requirement for a permanent stay in Australia, subject to him providing a signed undertaking in accordance with PIC 4005(1)(d). The Tribunal takes the MOC opinion dated 12 February 2019 to be correct. Accordingly, based on the opinion of the MOC, the applicant satisfies 4005(1) subject to the undertaking.

17. Given the findings above, the appropriate course is for the Tribunal to remit the matter to the Minister for reconsideration of the remaining criteria for the visa.

    DECISION

1. The Tribunal remits the application for a Skilled Independent (Permanent) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 189 -  Skilled - Independent visa:

·PIC 4005(1)(c)(ii) for the purposes of cl.189.215 of Schedule 2 to the Regulations.

Karen McNamara
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.