1837312 (Migration)

[2019] AATA 6416

1837312 (Migration) [2019] AATA 6416 (27 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1837312

MEMBER:Penelope Hunter

DATE:27 November 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for an  Employer Nomination (Permanent) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 186 -  Employer Nomination Scheme visa:

·PIC 4007(2)(b) for the purposes of cl.186.224 of Schedule 2 to the Regulations.

Statement made on 27 November 2019 at 4:46pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) visa – Subclass 186 (Employer Nomination Scheme) – Public Interest Criterion 4007 – medical assessment – disease or condition likely to result in significant cost to Australian community – discretion to waive criterion – compassionate or compelling circumstances – stable, secure employment and income, and other savings and investments – general health and adherence to medical treatment – committed relationship and stable, supportive social network – possible relocation to other relevant countries – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 2.25A, Schedule 2, cl 186.224(2), Schedule 4, criterion 4007(1)(c)(ii)(A), (2)(b)

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 17 December 2018 to refuse to grant the applicant an Employer Nomination (Permanent) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 5 May 2017. The delegate refused to grant the visa as the applicant did not satisfy cl.186.224(2) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4007 of Schedule 4 to the Regulations was not met.

3. The applicant appeared before the Tribunal on 20 November 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr [A].

4. The applicant was represented in relation to the review by his registered migration agent.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   BACKGROUND

6. The applicant is a citizen of [Country 1]. He is currently [age] years old. He was granted a [temporary working] visa [in] February 2014, valid for four years. He has lived in Australia since 2014. Although he has travelled offshore for short periods. He has submitted evidence of his profession qualifications including a [Qualification] from [an Institution in Country 1].

7. The applicant applied for this visa sponsored by his employer [Company Name], trading as [Trading Name], in the position of [Job Title]. He has worked for his employer since January 2015, initially as a [job title] in training and then transitioned to [an executive position] [in] March 2015.

8. The applicant is currently in a relationship with Mr [A]. Mr [A] is a citizen of [Country 2]. At the time of the visa application, the length of Mr [A]’s relationship with the applicant did not satisfy the minimum requirement under regulation 2.03A of the Regulations of a de facto partner.  

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. The applicant underwent a health assessment as required for processing his visa application. The Medical Officer of the Commonwealth (MOC), [in] August 2017, formed the opinion that the applicant had the condition of [Medical Condition] and calculated the likely cost to the Australian community for treatment for a hypothetical person with the same condition to be $526,500. The MOC concluded the applicant did not meet the health requirement for the purposes of PIC 4007(c)(ii)(A).

11. The Department invited the applicant to comment on the information and provide any further evidence relevant to the waiver provisions. The representative of the applicant provided further submissions, dated 26 September 2018, including an updated medication report of Dr [B] dated [June] 2018, and supplementary information for the applicant including details of his professional skills and qualifications, evidence of his income and assets, personal letters of support and other material.

12. Another health assessment was undertaken by the MOC, who [in] October 2018, provided an opinion that the applicant was still a person who suffered from the condition of [Medical Condition], and formed the view the estimated cost of treatment for a hypothetical person with the same condition to be $513,000.The MOC again concluded the applicant did not meet the health requirement for the purposes of PIC 4007(c)(ii)(A).

13. [In] September 2019, the Tribunal invited the applicant to obtain an updated MOC opinion. The applicant accepted this invitation and submitted further medical evidence which was referred to the Review Medical Officer of the Commonwealth (RMOC). [Later in] September 2019, the RMOC provided a further opinion that the applicant had the condition of [Medical Condition]. It was considered that the a hypothetical person with this condition would likely require health care  services not limited to long-term [pharmaceutical] therapy and medical review. Yet the likely costs of treatment for a hypothetical person with the same condition were assessed as $135,000. Again the RMOC concluded that the applicant did not meet the health requirement for the purposes of PIC 4007(c)(ii)(A).

14. On the basis of the information before it, including the delegate’s decision record dated 17 December 2018, the medical evidence provided by the applicant, the opinions of the MOC and RMOC, and the applicant’s evidence at hearing, the Tribunal finds that the applicant in this case has the condition of [Medical Condition].

    Is the applicant free from the relevant diseases or conditions (PIC 4007(1)(a), (b), (c))?

15. 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.

16. 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.

17. 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.

18. As the applicant in this case has applied for a permanent visa, the exemption provision in PIC 4007(1B) does not apply.

19. In determining whether a person meets PIC 4007(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).

    Is a MOC opinion required?

20. On the evidence before the Tribunal, a MOC opinion is required and has been obtained.  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.

21. There are three assessments in respect of the applicant made by a MOC. An initial assessment dated [August] 2017, another assessment after the provision of updated medical reports dated [September] 2018, and a further report provided for the Tribunal by the RMOC dated [September] 2019. The Tribunal must have regard to the most recent assessment at the outcome of this assessment, that is the applicant ‘does not meet the health requirement’. The RMOC estimated that the cost to the Australian community of the services identified in the assessment is likely to be $135,000, consisting of $15,000 in Medical Services and $120,000 for Pharmaceuticals. This is significantly less than the amounts estimated in the previous assessments of the MOC and is reflective of a change in Departmental Guidelines which have occurred since the visa application in assessing the period over which the relevant costs are to be calculated.

22. The Tribunal is satisfied that in this case the RMOC opinion has identified the medical condition to which the public interest criterion has been applied, and the form or level of the condition suffered by the applicant, [Medical Condition].  Further, 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).

23. Accordingly, based on the opinion of the RMOC, the applicant does not satisfy PIC 4007(1)(c).

    Should the requirements of PIC4007(1)(c) be waived?

24. 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).

25. 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. Departmental policy guidance on the exercise of this discretion is contained in the Procedures Advice Manual (‘PAM3’). Broadly speaking, these relate to: family links in Australia and the impact on family members; occupational skills of the applicant or family members; assets or factors that may mitigate the costs or prejudice to access to care or services involved; available support from family or community groups; potential contribution to Australia by the applicant or family members; the immigration history of the applicant; other compelling and compassionate circumstances including location of the applicant and family members; and any other relevant factors.

26. The Tribunal has taken into account all of the applicant’s written and oral evidence, that of Mr [A], his 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, on the face of it, the sum of $135,000, while considerably less than the original assessment of the MOC, 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.

27. First the Tribunal accepts that the applicant has secure and stable employment. At the time of the visa application the applicant was employed at his employer’s [Suburb 1 premises], he has since gone on to manage a new [premises] at [Suburb 2]. His current employment includes a [financial] arrangement in the business, at the Tribunal hearing the applicant claimed that this was equivalent to a [bonus payment].  The applicant has submitted to the Department and the Tribunal copies of his PAYG summaries, Income Tax Returns and Notices of Assessment from 2015 to 2019. His employment contract records that his base salary is $[amount 1]. It is noted that in his most recent Notice of Assessment for the year ending 30 June 2019, he was assessed as having an annual salary of $[amount 2 (approximately amount 1 plus bonus payment)]. While it is conceded that the applicant’s nominated occupation is not on the Skills Shortages List for NSW, in submissions the representative of the applicant has drawn the attention of the Tribunal to the fact that the nominated occupation of [Job Title] has been included in the NSW 190 Priority Skilled Occupation List, a copy of which has also been submitted. It appears from the letters of support for the grant of the visa from his employer, dated [April] 2017 and [November] 2019, that the applicant’s contribution to the Australian business is highly valued. The letter of [November] 2019, contains the following supporting comments:

    As our most senior [executive position], [the applicant] actively engages in the management team of our company, introducing new initiatives for running our [premises], business and staffing. He has been actively involved in getting new operations up and running, promotional activities to drive business and running special occasions and event promotions. It would be extremely difficult to find a replacement for [the applicant’s] position, especially with such a proven track record and wealth of knowledge in the field. There is no doubt that [the applicant’s] absence would cause severe disruption to the operation and viability of our business.

28. Furthermore, the Tribunal is satisfied from the medical evidence submitted that the applicant is currently in good health and his medical condition is not likely to impact on his ability to maintain his employment, or his financial ability to support himself. In a letter of support, dated September 2019, Dr [C] comments that the applicant has remained physically and psychosocially well and has excellent adherence to [pharmaceutical] therapy. Further that the applicant’s [Medical Condition] has remained [medical detail deleted], and that he has taken responsibility for his health and maintained regular clinic monitoring appointments. Dr [C] further concludes that the applicant’s disease is uncomplicated and he was expected to have a near normal life expectancy and to be able to fully participate in the workforce. Not only do these circumstances indicate that the applicant will be able to live and work independently while purchasing the medication, and attending reviews for his condition, but the Tribunal is also satisfied that in these circumstances the actual costs of his medication and treatment will likely be lower than the hypothetical person.

29. In addition the applicant has financial resources and support to offset potential costs of his condition. The applicant has submitted to the Tribunal updated evidence of his savings, including [an investment] account with a balance as at of $[amount], [Bank] savings of $[amount], and [Country 3 Bank] Accounts with balance of [Country 3 currency amount], equivalent to $[amount][1]. In addition the applicant provided to the Department evidence of property in [Country 3], which was valued at [Country 3 currency amount], and subject to a mortgage of [Country 3 currency amount] as at August 2018, leaving a net asset value of [Country 3 currency amount], equivalent to $[amount][2]. The applicant is renting the property and in August 2018 was receiving rent in the sum of [Country 3 currency amount] per year. Also, the applicant has a superannuation balance with [superannuation fund], as of  [August] 2018, of $[amount]. The applicant also told the Tribunal that it was possible he would be able to access a part-pension upon retirement from [Country 3], due to his approximately 20 year period of working and residence. It is noted that the applicant has been able to build up his savings in Australia, in the 12 months since his original submissions to the Department and it is considered that with savings, assets and superannuation in the vicinity of $[amount] he has the financial ability to mitigate potential costs. In addition the applicant holds private health insurance through [health fund] which will be accessible in the unlikely event he requires hospitalisation.

    [1] accessed on 20 November 2019

    [2] As above

30. The Tribunal also takes into account the applicant’s relationship with Mr [A] who migrated to Australia in 2018 on a [Specified] Visa to join the applicant. The evidence is that since that time Mr [A] has made substantial investment to settle in Australia in terms of his employment with a view to maintaining his relationship with the applicant. Mr [A] told the Tribunal that he previously had a  [business] in New Zealand which he sold prior to moving to Australia. The Tribunal has been provided with copies of Mr [A]’s summary of earnings from his [employer]. A letter of appointment supplied further confirms that [in] September 2019, he was offered the higher position of [Job Title] with this employer on a gross salary of $[amount]. Mr [A] confirmed that he was in a committed relationship with the applicant, he has been living with him in Australia for over 12 months, and would also be available to mitigate any costs of care or treatment for the applicant if required.

31. In relation to the applicant’s family ties in Australia, the applicant has Mr [A]. In addition Mr [A] has a [child] living in Sydney. The evidence presented at the hearing was that the applicant was developing a great relationship with his [child] who is a permanent resident. The applicant has no other family in Australia, however he has provided seven letters of support from friends, including from Mr [D] (dated [August] 2018), [Mr E], [Mr F] (dated [August] 2018), Dr [G] (dated [August] 2018) and [Mr H] (dated [August] 2018). The submission is that he has forged significant social ties in Australia through the build-up of an extremely stable network of supportive friends who have helped him to fully settle and establish himself in the local community. It is accepted by the Tribunal that the applicant has developed strong bonds with a number of Australian citizens and permanent residents.

32. As to other compassionate and compelling circumstances the applicant expressed considerable concerns about maintaining his relationship with Mr [A] should the visa not be granted. It was claimed that Mr [A] has already made a significant sacrifice to join the applicant in Australia. An alternative option would be for the applicant to consider moving to [Country 2] in order to pursue his relationship with Mr [A], but there are similar health waiver provisions for entry to [Country 2]. The applicant further told the Tribunal that he considered that there was limited career opportunity in [Country 2] and he had considerable concern at his ability to start again professionally. The applicant had not lived in [Country 1] for over twenty years, he had no social support remaining. Further, Mr [A] did not speak [Country 1’s language] and would have limited employment opportunities. The other option for the applicant was to return to [Country 3], however the applicant claimed that due to the uncertainty surrounding [political circumstances], there was no guarantee that he would be able to return to live permanently in [Country 3]. The Tribunal accepts that the refusal of the visa would have profound consequences for the applicant’s on-going relationship with Mr [A]. While the Tribunal notes the applicant’s submission to the Department that his current medication was not available in [Country 1], there is no corroborative evidence to support this.[3] Should the visa be refused, the Tribunal considers that the applicant would be able to access appropriate health care in [Country 3], [Country 1] or [Country 2].

    [3] The Tribunal does note that there is information that the medication is authorised for use in [a specific region of the world] [details deleted]

1. It is further submitted that the significant reduction in the identified costs suggests that the review applicant’s circumstances be assessed more leniently consistent with the spirit of the health waiver provisions.

2. Overall the Tribunal notes that the relevant costs as assessed for the applicant have significantly reduced in light of the updated Departmental policy. The Tribunal is further of the view that, in the applicant’s particular case, the costs involved may not be as high as those of the hypothetical person, because he is in good health and lives a healthy lifestyle, he has financial resources and health insurance which may mitigate his costs, he has secure full-time employment and he has strong supportive partner with financial resources, as well as strong and supportive relationships in the Australia community. It is considered that there is considerable capacity to mitigate the financial costs involved. The Tribunal also has regard to the fact that the applicant is in stable employment, is strongly supported by his employer, and has equity in his employer’s business. While his occupation is not located in a regional area, and not listed on the Medium and Long-term Strategic Skills List of the Skilled Occupation List, the nominated occupation of [Job Title] has been included in the NSW 190 Priority Skilled Occupation List. The Tribunal has formed the view that, when considered overall, it is satisfied that the granting of the visa would be unlikely to result in undue cost.

3. For these reasons, the Tribunal is satisfied that the granting of the visa would be unlikely to result in undue cost or undue prejudice within the terms of PIC4007(2)(b). Therefore PIC 4007(1)(c) may be waived subject to the applicant satisfying all other requirements for the visa. 

   Other matters

4. The Departmental file of the applicant contained a certificate issued pursuant to s.375A of the Act, dated [September] 2019, in relation to certain folios which were described as containing information about the health of the applicant that has been provided to the Department in confidence by a Medical Officer of the Commonwealth. The Tribunal discussed the certificate with the applicant and his representative at the hearing. The Tribunal had determined that the certificate was valid, and invited submissions from the applicant and his representative and none were forthcoming. The Tribunal discussed with the applicant the substance of the information contained in the relevant folios, it was noted that any adverse information, that is the finding that the applicant suffered from [Medical Condition] which was likely to be permanent, was already disclosed in the MOC opinion. The existence of this condition was not disputed by the applicant. The applicant was further advised that there was no further information considered to be materially adverse to the decision under review.

5. 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

6. The Tribunal remits the application for an  Employer Nomination (Permanent) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 186 -  Employer Nomination Scheme visa:

   ·PIC 4007(2)(b) for the purposes of cl.186.224 of Schedule 2 to the Regulations.

   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.