1928904 (Migration) - [2020] AATA 673

1928904 (Migration) [2020] AATA 673 (9 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1928904
MEMBER:Karen McNamara
DATE:9 March 2020
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) visa.
Statement made on 09 March 2020 at 11:37am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 (Regional Sponsored Migration Scheme) – medical condition resulting in significant cost to Australian community – pharmaceuticals and medical services – policy change to significant cost threshold and time period for estimating costs – availability of cheaper medicines – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), r 2.25A, Schedule 2, cl 187.235(1), Schedule 4, criterion 4005(1)(c)(ii)(A)
CASES
JP1 v MIAC [2008] FMCA 970
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 1 October 2019 to refuse to grant the applicant a Regional Employer Nomination (Permanent) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 22 August 2017. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.187.235 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.
The applicant appeared before the Tribunal on 27 February 2020 via telephone from [Country 1] to give evidence and present arguments. The Tribunal also received oral evidence from Mr [A] and Dr [B].
The applicant was represented in relation to the review by his registered migration agent. The representative did not attend the hearing.
The Tribunal notes that numerous evidence and submissions were lodged by or on behalf of the applicant. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the visa applicant meets Public Interest Criterion (PIC) 4005 as required by the criteria for the grant of the visa. Public Interest Criterion 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.
The applicant in this case is a [age] year old citizen of [Country 1]. The applicant has nominated his occupation as [Occupation] (ANZSCO [Code]) and is nominated by…

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 1928904 (Migration)

Details

AGLC: 1928904 (Migration) [2020] AATA 673
Case: [2020] AATA 673
Decision Date: 9 March 2020

CaseChat Overview and Summary

This matter concerned an application for a Regional Employer Nomination (Permanent) visa (Subclass 187) by a citizen of [Country 1]. The applicant was nominated by [Employer] for the occupation of [Occupation]. The core of the dispute revolved around whether the applicant satisfied Public Interest Criterion (PIC) 4005, which requires an applicant to be free from diseases or conditions that could result in significant costs to the Australian community. The Tribunal was tasked with reviewing the decision to refuse the visa.

The legal issue before the Tribunal was whether the applicant met the requirements of PIC 4005, specifically subclause (1)(c)(ii)(A), which relates to the potential for a disease or condition to result in a significant cost to the Australian community through healthcare and community services. This assessment was complicated by a policy change that increased the threshold for "significant cost" to $49,000 and reduced the time period for estimating costs to a maximum of 10 years.

The Tribunal affirmed the decision under review because the applicant did not satisfy PIC 4005. A Medical Officer of the Commonwealth (MOC) initially opined that the applicant did not meet the criterion on 18 April 2019. Following a policy update on 1 July 2019, which adjusted the significant cost threshold and estimation period, the applicant's case was reassessed. A subsequent MOC opinion on 16 August 2019, based on the updated policy, also found that the applicant did not meet the health requirements under subregulation 187.235(1) and PIC 4005(1)(c)(ii)(A). Despite the applicant requesting a further opinion, a report dated 29 November 2019 confirmed the applicant's failure to meet the criterion. Consequently, as the applicant did not satisfy PIC 4005, they also did not satisfy the requirements of clause 187.235 of the Migration Regulations.

The Tribunal affirmed the decision not to grant the applicant a Regional Employer Nomination (Permanent) visa.

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 decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this review is whether the visa applicant meets Public Interest Criterion (PIC) 4005 as required by the criteria for the grant of the visa. Public Interest Criterion 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. The applicant in this case is a [age] year old citizen of [Country 1]. The applicant has nominated his occupation as [Occupation] (ANZSCO [Code]) and is nominated by [Employer]. The applicant undertook a health examination and was assessed against the health requirement for permanent stay in Australia. On 18 April 2019 a Medical Officer of the Commonwealth (MOC) gave an opinion that the applicant did not satisfy PIC 4005 (1)( c)(ii) (A) in Schedule 4 to the Migration Regulations. On 1 July 2019, the policy threshold for the level of costs regarded as significant (the significant Cost Threshold) was increased to $49,000. The time period used for estimating significant costs by the MOC’s for permanent and provisional applicants was reduced to a maximum of 10 years.[1][1] Policy –Migration Regulations Sch 4 - 4005-4007 – The health PIC-Sch4/4005-4007–The health requirement –The MOC Assessment –Significant costs (re-issued 01/07/2019). In accordance with these changes the Department referred the applicant’s health case to the Migration Medical Service Provider (BUPA) for a new MOC opinion based on the new policy thresholds. On 16 August 2019, the MOC provided an opinion based on the most up to date information available. The MOC assessed the applicant as not meeting the health requirements as required by sub regulation 187.235(1). The assessment opined that the applicant did not meet the criterion PIC 4005(1) ( c) (ii) (A) in Schedule 4 to the Migration Regulations. On 12 October 2019, the applicant lodged an application for review with the Tribunal. On 29 October 2019 the Tribunal invited the applicant to obtain a further opinion from a MOC. On 13 November 2019, the applicant requested a further opinion from a MOC. Included with the request was:· Request for a Further Opinion from a Medical Officer of the Commonwealth signed and dated 13 November 2019; and· Receipt for the amount of $520 being payment for Request for a Further Opinion from a Medical Officer of the Commonwealth.· An opinion from Dr [B] [Health Centre] dated 11 June 2019. A report from the MOC dated 29 November 2019 was provided to the Tribunal. This report considered the information available to date concerning the applicant, including but not limited to reports from Dr [B] (18 February 2019 and 11 June 2019), Dr [C] (15 January 2016) and Dr [D] (19 February 2014) and the report of the examination conducted by the panel physician on 19 February 2019.

Decision

Reasons for decision

As the applicant has not satisfied the requirements of PIC 4005, and as such does not satisfy the requirements of cl.187.235, the Tribunal must affirm the decision under review.DECISION The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) visa.Karen McNamaraMemberATTACHMENTMigration Regulations 1994Schedule 44005(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.

Ratio Decidendi

Legal Principle Established

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