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

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).
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.
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].
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
BACKGROUND
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].
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…

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.

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Details

Case: [2019] AATA 6416
Decision Date: 27 November 2019

CaseChat Overview and Summary

This matter concerned an application for an Employer Nomination (Permanent) visa, Subclass 186, by a citizen of [Country 1]. The applicant, who had been living and working in Australia since 2014, applied for the visa sponsored by his employer, [Company Name]. The central issue before the Tribunal was whether the applicant met Public Interest Criterion (PIC) 4007, which requires applicants to be free from certain diseases or conditions that could impose a significant cost on the Australian community.

The legal issues before the Tribunal were whether the applicant met the requirements of PIC 4007, specifically subclause (1)(c), which pertains to freedom from diseases or conditions likely to result in significant cost to the Australian community. The Tribunal also considered the potential for a waiver of this criterion under subclause (2) if the applicant satisfied all other visa criteria and granting the visa would not result in undue cost to the community or prejudice access to services for Australian citizens or permanent residents.

The Tribunal's reasoning focused on the medical assessments of the applicant, who was found to have the condition of [Medical Condition]. Multiple opinions from Medical Officers of the Commonwealth indicated that the condition could result in significant costs to the Australian community, initially estimated at over $500,000 and later revised to $135,000. Despite these findings, the Tribunal noted the applicant's evidence regarding his stable employment, income, savings, general health, adherence to medical treatment, committed relationship, and supportive social network. The Tribunal concluded that the applicant met PIC 4007(2)(b) for the purposes of clause 186.224 of Schedule 2 to the Regulations.

Consequently, the Tribunal remitted the application for an Employer Nomination (Permanent) visa for reconsideration, with a direction that the applicant meets PIC 4007(2)(b).

Orders

Orders of the court

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Background

Background to the litigation

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

Evidence

Evidence Before The Court

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 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. 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). 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. 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). [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). 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))?

Decision

Reasons for decision

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 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 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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