1930254 (Migration)

[2020] AATA 2186

1930254 (Migration) [2020] AATA 2186 (29 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1930254

MEMBER:Alison Mercer

DATE:29 April 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for Employer Nomination (Permanent) visas for reconsideration, with the direction that the second named applicant meets the following criterion for a subclass 186 - Employer Nomination Scheme visa:

·PIC 4005(1)(c) for the purposes of cl.186.235 of Schedule 2 to the Regulations.

Statement made on 29 April 2020 at 11:37am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – health criteria – MOC opinion – significant cost to the Australian community – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), r 2.25A; Schedule 2, cl 186.235; Schedule 4, PIC 4005

CASES
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 decisions made by a delegate of the Minister for Immigration on 4 October 2019 to refuse to grant the applicants Employer Nomination (Permanent) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 20 February 2018. The delegate refused to grant the visa on the basis that the first named applicant (now referred to as the applicant) did not satisfy cl.186.235 of Schedule 2 to the Migration Regulations 1994 (the Regulations), which required that the applicant and all members of his family unit meet the health criteria in Public Interest Criterion (‘PIC’) 4005 of Schedule 4 to the Regulations. The delegate found that PIC 4005 was not met by the applicant’s spouse, the second named applicant. The delegate noted that a Medical Officer of the Commonwealth (MOC) found on 3 October 2019 that the second named applicant did not meet PIC 4005(1)(c)(ii)(A) of Schedule 4 to the Regulations as she had stable psoriatic arthritis, and that a hypothetical person with this disease or condition, at the same severity, would be likely to require health care or community services for the specified period and provision of these would be likely to result in a significant cost to the Australian community.

3. The Tribunal received a review application from the applicants on 25 October 2019, which was accompanied by a copy of the delegate’s decision and an authority by which they appointed a registered migration agent, [Ms A], as their representative and authorised recipient for correspondence for the purposes of the review.

4. On 21 November 2019, the Tribunal wrote to the applicants via their agent to provide them with an opportunity to obtain a further MOC opinion. On 22 January 2020, the applicants’ agent provided an authority for a further MOC opinion to be sought in relation to the second named applicant, proof of payment of the required fee, and updated medical reports to be forwarded to the MOC for consideration. The Tribunal sent this information and a request for a further opinion to the MOC on 23 January 2020.

5. On 30 January 2020, the Tribunal was advised by the Department that an MOC opinion had been provided by a Senior MOC that indicated that the second named applicant met PIC 4005.  The Tribunal requested a copy of this opinion, and it was provided to the Tribunal on 29 April 2020.

6. In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicants on the basis of the material before it, pursuant to section 360(2)(a) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this review is whether the second named applicant meets Public Interest Criterion (PIC) 4005 as required by the criteria for the grant of the visa (cl.186.235). Public Interest Criterion 4005, as it applies to this case, is extracted in the attachment to this decision. It requires the primary applicant and any family unit members, in certain circumstances, to undergo medical assessment, and to be free of certain diseases or conditions that may impact on the community.

9. As noted above, at the time of the Department refusal decision, a MOC opinion dated 3 October 2019 found that the second named applicant – who is the spouse of the applicant and therefore a member of his family unit – did not meet PIC 4005(1)(c)(ii)(A) and thus did not meet PIC 4005 as a whole. As a result, the delegate found that the applicant could not satisfy cl.186.235.

10. 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).

11. As the applicant in this case has applied for a permanent visa, the exclusion provision in PIC 4005(3) does not apply.

12. 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).

    Is a MOC opinion required?

13. On the evidence before the Tribunal, a MOC opinion is required. 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.

    Further MOC opinion

14. As noted above, a new MOC opinion has been obtained, dated 29 January 2020, indicating that the second named applicant meets PIC 4005. The Tribunal has reviewed the further MOC opinion and is satisfied that, when taken together with the first MOC opinion, which identifies the second named applicant’s condition, the relevant period for consideration and applies the statutory criteria by reference to a hypothetical person, that the MOC opinion of 29 January 2020 is valid. The Tribunal therefore takes it to be correct.

15. Accordingly, based on the opinion of the MOC, the Tribunal finds that the second named applicant satisfies public interest criterion 4005(1)(c) for the purposes of cl.186.235.

16. 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

17. The Tribunal remits the application for Employer Nomination (Permanent) visas for reconsideration, with the direction that the second named applicant meets the following criterion for a subclass 186 - Employer Nomination Scheme visa:

    ·PIC 4005(1)(c) for the purposes of cl.186.235 of Schedule 2 to the Regulations.

    Alison Mercer
    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.