2003609 (Migration)

[2022] AATA 4227

2003609 (Migration) [2022] AATA 4227 (4 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mrs Maggie Taaffe (MARN: 0851585)

CASE NUMBER:  2003609

COUNTRY OF REFERENCE:                   United Kingdom

MEMBER:Mary Sheargold

DATE:4 November 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for Employer Nomination (Permanent) visas for reconsideration, with the direction that the first named 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 04 November 2022 at 3:06pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 - Employer Nomination Scheme – health criteria not met – 3 applicants working in the health care and community services sector – PIC 4007(1)(c) may be waived – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 359, 360
Migration Regulations 1994, r 2.25, Schedule 2, cl 186.224, Schedule 4, Public Interest Criterion (‘PIC’) 4007

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 decisions made by a delegate of the Minister for Home Affairs on 12 February 2020 to refuse to grant the applicants Employer Nomination (Permanent) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visas on 30 May 2019. The delegate refused to grant the visa as the first named applicant (now referred to as the applicant) did not satisfy cl 186.224 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4007 of Schedule 4 to the Regulations was not met.

3. The applicants were represented in relation to the review.

4. 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 s 360(2)(a) of the Act.

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

   Consideration of claims and evidence

6. 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.

7. In this case, the first named applicant’s husband, the second named applicant, is HIV positive, which renders him unable to meet PIC 4007(1)(c) because he is not free from a disease or condition which would be likely to require health care or community services.  However, the requirement for this applicant to meet PIC 4007(1)(c) can be waived if certain circumstances are satisfied, and in my view, the circumstances surrounding these applicants are sufficient to justify the exercise of the waiver.

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

8. 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.

9. 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.

10. 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.

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

12. In determining whether a person meets PIC 4007(1)(a), (b) or (c), reg 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: reg 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.

14. On 29 September 2022, the Tribunal wrote to the applicants inviting them to obtain a further MOC opinion in respect of the second named applicant.  On 12 October 2022, the applicants’ representative supplied a payment receipt for the further MOC opinion along with the second named applicant’s latest medical reports from his specialists.  This was provided to the Department by the Tribunal, and a further MOC opinion was obtained.  On 21 October 2022, the Tribunal received a new MOC opinion in respect of the second named applicant.  That opinion was dated 20 October 2022.  As anticipated, the MOC opinion found that the second named applicant did not meet the requirements of PIC 4007(1)(c)(ii)(A) of Schedule 4 to the Regulations.

15. The Tribunal also received an updated Health Waiver Information statement from the MOC, again dated 20 October 2022.  The MOC indicated that granting the second named applicant a visa for the assessed period of stay would not be likely to prejudice the access of an Australian citizen or permanent resident to health care or community services.

16. On 21 October 2022, the Tribunal wrote to the applicants pursuant to s.359A of the Act, inviting them to comment on the adverse information it had obtained from the MOC, being that the second named applicant did not meet the requirements in PIC 4007(1)(c)(ii)(A), and noted that this information was relevant to the review because it was a requirement for the grant of the visa that the first named applicant meets cl.186.224 of Schedule 2 to the Regulations. Amongst other things, cl.186.224 requires the applicants to meet the requirements of PIC 4007.

17. On 1 November 2022, the applicants’ representative provided submissions and supporting evidence noting that the applicants accepted that the second named applicant did not meet PIC 4007(1)(c) but requested a waiver of the requirement on the grounds set out in the submission.  This will be discussed in detail below.

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

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

19. 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).

20. 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. Department policy provides guidance on factors that may be relevant to this, including: the need for, and availability of, a live organ donor; an ability to access private health treatment; close family, social, emotional and community ties to Australia; the impact on any Australian citizen minor children; occupational skills of the applicant or family members; and the potential contribution to Australia by the applicant or family members.

21. At the outset, the Tribunal notes it lends significant weight to the MOC’s opinion when exercising its discretion to waive the requirement in PIC 4007(1)(c).  As the Tribunal is bound by the MOC’s findings in relation to PIC 4007(1)(c) itself, the Tribunal is cognisant that the MOC’s opinion should be held in high regard.  The MOC states that in their view, ‘granting a visa to the…applicant for the assessed period of stay would not be likely to prejudice the access of an Australian citizen or permanent resident to health care or community services” (emphasis in original).  I give this opinion significant weight in making my findings.

22. I also give significant weight to the fact that the stigmatisation of HIV has reduced markedly in recent years, and I note the representative’s submission that Australia remains one of a handful of Western nations to use HIV+ status as a reason to deny a person migration rights.  While the Tribunal is not tasked to take on a political viewpoint, nor does it intend to do so in this decision, it is worth noting that a key driver for the reduction in stigmatisation is the general advancements in medical treatments and therapies available to HIV+ people.  The costs associated with caring for HIV+ patients, especially those classed as “undetectable”, as the second named applicant is, have dropped significantly.  The transition from HIV+ status to an AIDS diagnosis is far slower than it used to be, AIDS-related deaths have continued to decrease, and many HIV+ patients now enjoy a normal life expectancy.

23. While the Tribunal accepts that the costs of medications required to keep HIV+ patients in their ‘undetectable’ status is significant for the government, it is no more cost prohibitive than the prescribed medications and treatments for many other long-term health concerns.

24. The Tribunal notes that 4 of the 6 applicants are working in Australia at present, and 3 of them in the health care and community services sector where Australia faces a desperate labour shortage.  The first named applicant has remained in consistent employment with her nominating sponsor for over 7 years, and contributes more than enough income tax to cover the anticipated costs of the second named applicant’s pharmaceuticals and medical services over the tested period.  As a worker aged [age], the first named applicant has the potential to continue to contribute to Australia financially via income tax alone for several decades to come.  The second named applicant is also a highly valued worker in the personal care services space.  He also pays significant sums of income tax.  The third named applicant has almost completed her nursing qualifications, and will be able to contribute to Australia in a critical skills shortage area for her full career.

25. These are obvious, clear and compelling reasons in the interests of Australia that justify the exercise of the discretion to waive the requirements in PIC 4007(1)(c).  Further, the fifth and sixth named applicants have known life only in Australia.  The fifth named applicant is thriving at school and in her extra curricular activities.  The family has provided a body of supporting statements from schools, service providers, employers and the like advocating strongly for the family to be granted their permanent residency visas.  The applicants are active participants in their local [church].  They work in community services providing a vital health service that is in critical demand in Australia at present.  It would be remiss of the Tribunal not to give adequate weight to these considerations when determining whether or not the waiver should be exercised.

26. On balance, the Tribunal is satisfied that granting a visa to the applicants for the assessed period of stay would not be likely to prejudice the access of an Australian citizen or permanent resident to health care or community services, and there would not be an undue cost to the Australian community should the requirement of PIC 4007(1)(c) be waived.

27. For all the reasons outlined above, 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 applicants satisfying all other requirements for the visa.

28. 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, including in relation to the secondary applicants.

    decision

29. The Tribunal remits the application for Employer Nomination (Permanent) visas for reconsideration, with the direction that the first named 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.

    Mary Sheargold

    
    

    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.