2218467 (Migration)

[2024] AATA 502

2218467 (Migration) [2024] AATA 502 (30 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mrs Annalisa Symons

CASE NUMBER:  2218467

COUNTRY OF REFERENCE:                   United Kingdom

MEMBER:Naomi Schmitz

DATE:30 January 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a  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 30 January 2024 at 8:55am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – health criteria in Public Interest Criterion (PIC) 4007 was not met – unique skills and experience in his professional field – applicant has the financial capacity to mitigate any potential costs arising from his medical treatments – has a live donor available – there are compassionate or compelling circumstances affecting the interests of Australian permanent residents – requirements of PIC 4007 should be waived – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, r 2.25, Schedule 2, cls 186.224, Schedule 4 Public Interest Criterion 4007

CASES
Bui v MIMA (1999) 85 FCR 134
Robinson v MIMIA (2005) 148 FCR 182
Ramlu v MIMIA [2005] FMCA 1735

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 Home Affairs on 25 November 2022 to refuse to grant the applicant an Employer Nomination (Permanent) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 28 October 2021. The delegate refused to grant the visa 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 delegate’s decision records that the applicant on 15 March 2022 was found by a Medical Officer of the Commonwealth (MOC) to not satisfy PIC 4007(1)(c)(ii)(A) and 4007(1)(c)(ii)(B) on the basis of being a person with severe chronic renal disease.

4. On 22 June 2022 the applicant was advised of this adverse finding and provided with an opportunity to submit further information for consideration of a waiver of the health requirement.

5. On 20 July 2022, the applicant provided further information to support his application for a health waiver which was considered by the MOC.

6. As a result of the new information, on 20 September 2022 the applicant was assessed by a MOC as not satisfying PIC 4007(1)(c)(ii)(A) and 4007(1)(c)(ii)(B) on the basis of being a person with severe chronic renal disease.

7. The MOC made the following findings:

   The applicant is a 45 year old person with:

   - Severe chronic renal disease.

   Form and severity of the applicant's condition: the applicant has severe chronic kidney disease due to membranoproliferative glomerulonephritis type 1. The applicant's renal function indicates a level of severity such that renal replacement services is likely to be required in the near future. Provision of services to a hypothetical person in Australia with the same condition as the applicant and at the same severity: a hypothetical person in Australia with the same condition as the applicant, at the same severity, would be likely to require long term specialist health care services, including but not limited to renal replacement services and renal transplant. As well I consider that the provision of the health care services to the hypothetical person in the circumstances defined above would also be likely to result in a significant prejudice to access to the Australian community in the areas of health care. This is because dialysis and renal transplantation based on advice from the Department of Health is currently a service in short supply; that is, there are already insufficient resources available to meet current national demand and failure to obtain required access to this service would be likely to seriously disadvantage current Australian citizens and permanent residents. This condition is likely to be Progressive.

   I consider that a hypothetical person with this disease or condition, at the same severity as the applicant, would be likely to require health care or community services during the period specified above.

   These services would be likely to include:

   Surgical services

   Medical services

   Dialysis

   Organ transplants

   Provision of these health care and/or community services would be likely to result in a significant cost to the Australian community in the areas of health care and /or community services, and prejudice the access of an Australian citizen or permanent resident to health care or community services.

   …

8. The new MOC opinion and costings were provided to the applicant on 21 September 2022 and the applicant was given an additional 28 days to respond.

9. The estimated cost to the Australian community was assessed as follows:

Medical services	$313,200
Surgical service	$16,300
Total Cost	$329,500

1. The delegate decided not to waive the requirements of PIC 4007(1)(c) as the delegate was not satisfied that the significant cost and prejudice to access identified was outweighed by any mitigating factors and/or compassionate compelling circumstances to the level required to justify the waiver being exercised. The delegate determined that if the visa was granted it would likely result in undue prejudice to the access of health care or community services of Australian citizens or permanent residents.

   Background

2. The applicant is a 46-year old citizen of the United Kingdom (UK) who completed a Bachelor of Civil Engineering at the University of Glamorgan (UK) in 2002. He also holds a degree in Science, Business and Technology from the University of Glamorgan (UK). The applicant has worked in the UK and internationally, including in Denmark and the United States of America (USA).

3. He is currently employed as an Associate Director, (ANZSCO occupation - Transport Engineer 233215) having been promoted from Project Manager, at leading infrastructure consulting firm [EMPLOYER 1] within their New South Wales (NSW) business. The applicant has worked for [EMPLOYER 1], since January 2014, originally in the UK before being transferred to Australia, arriving in January 2018. Whilst in Australia, the applicant has worked in regional and rural Australia, including in Darwin and across the Northern Territory before relocating to Sydney.

4. The applicant holds various recognised professional memberships including with the Chartered Institution of Highways and Transportation Engineers United Kingdom, the Australian Institute of Project Management (AIPM) and Engineers Australia.

5. The applicant has approximately 14 years of experience managing major infrastructure projects including for highways, local roads, rail, energy transmission and the renewable energy sectors. He is responsible for managing project deadlines and budgets. In addition, he supervises engineer associates and is responsible for training and upskilling [EMPLOYER 1]’s workforce.

6. At the time of application, he was earning a base salary of $165,383.63 (excluding superannuation). At the time of decision, the applicant is currently earning an annual income of $182,882.88 (exclusive of superannuation) in his role as Associate Director.[1]

   [1] Letter from [Employer 1] Regional Managing Director – NSW and ACT [dated] 12 December 2023.

7. The applicant has never married and has no dependent family members in either the UK or Australia. Medical records show that his renal history predates 2000 when living in the UK.

   Application for review

8. On 15 December 2022, the applicant applied to the Tribunal for a review of the refusal decision. The applicant provided a copy of the delegate’s decision record to the Tribunal.

9. On 10 November 2023, the Tribunal wrote to the applicant and asked him to advise whether he wished the Tribunal to obtain a further opinion from a MOC. On 24 November 2023, the applicant replied in the negative.

10. On 8 December 2022, the Tribunal requested that the applicant provide information by 21 December 2023 which included the following:

    1.Evidence of your current income, including:

    a.     Australian Taxation Office Notices of Taxation Assessments for the financial years ending 30 June 2022 and 30 June 2023; and

    b.     Last four months of payslips;

    2.Information concerning the financial capacity of other family members in Australia or overseas and evidence to support their financial capacity such as banking records;

    3.Evidence of your assets and liabilities, including:

    a.     Any property ownership (including title deed, council rates notice or mortgage statement showing the holder’s name and property address);

    b.     Savings investments supported by relevant banking statements;

    c.     Mortgages/loans;

    d.     Superannuation; and

    e.     Social security payments;

    4.If you are currently leasing a property, a copy of your rental agreement and evidence of payment of rent;

    5.Information concerning your nominated position and employer including nominated position/occupation, date of commencement and annual salary;

    6.Information concerning your current employment, including evidence your employer would be adversely affected if you no longer worked for the company and any significant contributions by you to the employer;

    7.Evidence of whether any third parties in Australia (including any spouse or children) would be adversely affected by the refusal of the visa;

    8.Evidence of any community contribution and participation and any adverse impact on this, supported by letters of support;

    9.A copy of your private health insurance policy;

    10.Evidence of any reciprocal healthcare available in your home country;

    11.Information summarising your existing care arrangements and current use of community services and the impact that the condition has on your day-to-day tasks;

    12.Updated medical information from your treating specialist, including your current state of health, current treatment, prognosis in any other relevant matters;

    13.Information as to whether there are any other compassionate or compelling reasons for the wavier;

    14.Any other information or documents concerning your ability to mitigate the potential costs to the Australian community in the areas of health care and community services as well as your ability to mitigate the potential to prejudice the access of an Australian citizen or permanent resident to health care or community services;

    15.Any other information concerning your ability to mitigate prejudice to access such as evidence regarding potential transplant donors, including your mother and brother and evidence of donor test compatibility and any private arrangements available to mitigate prejudice to access; and

    16.Identify any family members in Australia.

11. On 11 December 2023, the Tribunal invited the applicant under s 360(1) of the Act to appear at a Tribunal hearing by Microsoft Teams technology commencing at 9:30 am (NSW time) on 22 January 2024 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to do this because it had considered the information it had and was unable to make a decision favourable to the applicant. The Melbourne based representative was advised to appear in-person before the Tribunal Member.

12. The representative provided various financial and medical information to the Tribunal including:

    ·Pay slips;

    ·Australian Taxation Office (ATO) Notice of Assessments for 2022 and 2023;

    ·Private Health Insurance – BUPA;

    ·Superannuation statements (Australia and UK);

    ·Letters of support from employer and industry stakeholders;

    ·Lease agreement and tenancy receipts;

    ·Letter dated 13 December 2023 from Dr Bhardan Bose (Dr Bose) Nephrologist at Westmead Private Hospital, NSW, Australia (the applicant’s current treating specialist);

    ·Evidence of pension in home country;

    ·Statutory declaration from the applicant; and

    ·Medical records from the UK including the applicant’s treating specialist in the UK.

13. On 8 December 2023, the Tribunal wrote to the applicant and advised that the Tribunal Member had considered the information provided and was able to make a favourable decision on the papers without proceeding to a hearing, pursuant to s 360(2)(a) of the Act. The Tribunal advised that the hearing scheduled for 22 January 2024 had been vacated, and that the parties would no longer be required to attend.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in this review is whether the visa applicant meets PIC 4007 as required by the criteria for the grant of the visa. PIC 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.

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

16. 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.

17. 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.

18. 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.

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

20. 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?

21. 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.

22. The Tribunal has reviewed the most recent MOC opinion dated 20 September 2022 and is satisfied that it identifies the condition to which the public interest criterion has applied, and the form or level of the condition suffered by the applicant.

23. The Tribunal is further satisfied that the MOC applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition and that the MOC considered the correct period. 

24. Accordingly, the Tribunal is bound to accept the MOC opinion of 20 September 2022 as correct and that the applicant does not meet PIC 4007(1)(c).[2]

    [2] MIMA v Seligman (1999) 85 FCR 115 ad Reg 2.25A(3).

25. Therefore, the applicant cannot meet cl 186.224 unless the requirements of PIC 4007(1)(c) are waived under PIC 4007(2).

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

26. 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).

27. 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.

    Representative’s Submissions

28. The representative submitted that granting the visa would unlikely result in undue cost to the Australian community and prejudice to access when taking into account the following salient factors which were supported by financial and medical evidence:

    a.The costs are not undue when viewed in conjunction with the applicant’s financial contributions in terms of payment of Commonwealth income taxation which would well exceed the MOC’s estimated medical costs;

    b.Regarding prejudice to access, the applicant’s mother has been identified as a compatible live donor and is willing to donate one of her kidneys should the applicant require a kidney transplant. The applicant has not been placed on a deceased donor waiting list in the UK because his renal function remains stable;[3]

    c.The applicant has continuously maintained premium private health insurance cover which includes cover for dialysis for chronic kidney failure. The applicant also has access to private dialysis facilities in both the UK and Australia to ensure that he does not prejudice the access of an Australian citizen or permanent resident to health care or community services; and

    d.The applicant possesses unique skills and experience in his professional field and makes a significant contribution to Australia.

    Tribunal’s Findings

    [3] Letter dated 17 January 2018 from The Royal London Hospital, Ademola Olaitan (Nephrology) and letter dated 30 June 2022 from Dr Bose of Westmead Private Hospital.

1. The Tribunal has carefully considered the representative’s submission along with evidence filed in support. The Tribunal regards the evidence as independent, credible and reliable, and overall is satisfied that the applicant has capacity to mitigate undue costs and prejudice to access and makes the following findings.

   Undue cost

2. The Tribunal is satisfied that the applicant makes a significant financial contribution to the Australian economy and community through taxation revenue collected in relation to his earnings which would be significantly higher than the total estimated health costs.

3. The applicant’s ATO Notice of Assessments disclose the following income and tax on net income:

Financial year ending	Net income	Tax paid
2023	$172,778	$48,994.86
2022	$172,847	$49,020.39
2021	$152,235	$41,393.95
2020	$150,913.00	$46,386.00
2019	$141,903.75	$42,866.00

1. The applicant is currently employed as an Associate Director with [EMPLOYER 1] with an annual income of $182,882.88 (exclusive of superannuation) and should pay an income tax of approximately $52,964.00 this current financial year. Recent pay slips were provided in support. Even without salary increases, which are expected, by multiplying this conservative amount by 21, which is the number of years until the applicant reaches retirement age, he is estimated to pay at least $1,112,244.00 in taxation and a portion of these contributions will go towards Medicare. This amount in itself would be more than three times the estimated cost of the medical services required by the applicant. This figure does not account for the applicant’s future earning potential.

2. The applicant has maintained his investments and superannuation funds in the in the UK. He intends to transfer these assets to Australia if his Subclass 186 visa application is granted. Various financial records were provided in support. The applicant has also accumulated savings and superannuation in Australia as a result of his [EMPLOYER 1] employment. Financial records were provided in support.

3. The applicant does not have any dependent family members requiring support in either the UK or Australia. The applicant does not have any liabilities. The applicant currently leases a property at a cost of $480.00 per week. A lease agreement and various tenancy receipts were provided in support.

4. Considering all the evidence the Tribunal is satisfied that the applicant has the financial capacity to mitigate any potential costs arising from his medical treatments.

   Prejudice to Access

5. The applicant actively self-manages his kidney condition by undertaking regular medical reviews with his specialist Dr Bose every four months at a cost of $135.00 per consultation. As part of these reviews, the applicant undertakes a blood test at a cost of $215.00, leading to a total annual cost for reviews of $1,050.00. The applicant’s medical regime also consists of taking various medication at a cost of $1,632.48 per annum. The applicant pays the full amount through a combination of private medical insurance (BUPA) and personal contribution.

6. According to Dr Bose the applicant’s renal function has been stable for the past few years. However, his kidney function will eventually decline to a stage where he needs kidney replacement therapy, in the form of dialysis or renal transplant.

7. For this purpose, the applicant has maintained premium private health insurance cover which will cover dialysis in a private dialysis unit and not be a burden on the public system. A copy of the applicant’s private health insurance was provided. The applicant has access to a private dialysis facility in both the UK and Australia. As a result, his care would not prejudice the access of Australian citizens or permanent residents to health care or community services.

8. In relation to the possibility of requiring a kidney transplant, the applicant has the availability of a live donor, his mother, who has been medically assessed and identified as a compatible live donor. Medical records from the UK, show that in 2008, the applicant was transferred to the Royal London Hospital where he was prepared for a pre-emptive living donor transplant from his mother. The transplant surgery did not proceed due to the applicant’s renal function being stable. This is also the reason why the applicant has not been placed on the deceased donor waiting list in the UK; that is, due to his renal function remaining stable.

   Compelling grounds for granting the visa – skills and value for Australia

9. As indicated at [11], [12] and [14] the applicant is a qualified transport/civil engineer and is currently employed at a leading infrastructure consulting firm [EMPLOYER 1]. According to the information provided, [EMPLOYER 1] is the worlds trusted infrastructure consulting firm, delivering professional services on projects from transportation, buildings, water, new energy and the environment for public and private sector clients.

10. The applicant was initially transferred from [EMPLOYER 1], UK, based on his proprietary knowledge and expertise in civil engineering. He's been an employee of the global firm since 2014.

11. The applicant is currently the Associate Director, in Programme and Project Management in [EMPLOYER 1]’s NSW business. In his role he provides professional management and technical skills on highly complex projects and works directly with clients. He is also the [EMPLOYER 1] Contract Management team representative, sitting on the cross-alliance board for the NSW Government transport client, undertaking maintenance and asset management for essential public assets including those recently impacted by extreme weather and natural disasters.

12. During the applicant’s employment at [EMPLOYER 1], Australia, the applicant has managed major Australian federal government infrastructure projects. These include:

    a.   Project Energy Connect which involved a joint venture between NSW, Victoria, and South Australia (SA) delivering an energy interconnector between power grids in each state at a value of $2.3 billion. This created 200 jobs in SA and 1500 jobs in NSW during the construction phase. The applicant was the Design Manager, developing a 700km electrical transmission line linking NSW, SA, and Victoria to enable Australia’s energy market transition to renewable energy; and

    b.   The A1 Princess Highway NSW Project, aimed at easing NSW traffic congestion at a value of $50 million. The applicant was the Construction Project Manager and was responsible for managing the programme for widening the A1 Princess Highway consisting of the upgrade of four traffic signal sections and widening from four to six lanes of the 1.4 km highway.

13. Over the past six years, the applicant has developed in-depth knowledge on major projects in Australia and their operations. The applicant is essential for [EMPLOYER 1]’s projects to progress given existing and long-term work in the pipeline. The applicant’s highly specialised skills and experience significantly contribute to [EMPLOYER 1]’s business in the current engineering market. According to [EMPLOYER 1], the market for engineering project management professionals is very competitive and experienced, skilled and proven people are in short supply. The applicant’s knowledge and experience would be extremely difficult to replace and his absence would have a significant detrimental impact not only to [EMPLOYER 1] but also to those responsible for maintenance of public assets and growing the renewable energy market in Australia.

14. Additionally, the applicant supervises engineer associates and significantly contributes to the training and upskilling of the Australian citizen and permanent resident workforce within [EMPLOYER 1]. The applicant has been a Mental Health First Aider since 2021 and mentor to people for Transport NSW, Venita, and Ports Authority NSW. Various letters of support were provided from the applicant’s employer and the engineering/construction industry attesting to his contribution to the infrastructure industry in Australia.

15. The Tribunal notes the reference from Brad Findley, which states that the applicant has a reputation for delivering projects which other staff were unable to finish. He cites the Cronulla Intersection Upgrade, where previous attempts had been delayed by local resistance to the work. The applicant met with local stakeholders and council representatives, amended design elements to work with the community and local businesses, timed work to avoid peak summer periods, ensured utility impacts were minimalised and made sure the project was delivered on time and to budget to improve traffic-flow and pedestrian safety in the area. This resulted in a significant improvement to the local area and was well received once implemented. Without the applicant’s skillset and drive, this project would have been cancelled.[4]

    [4] Reference from Brad Findley.

16. Another reference by Yusuf Abdullahi, Project Development Manager, Parkland Zone states that the applicant has led major construction projects in NSW that have successfully removed various road hazards from the Sydney road network by upgrading the road infrastructure. The projects have received positive feedback from local community leaders.[5]

    [5] Reference from Yusuf Abdullahi, Project Development Manager, Parkland Zone.

17. Overall, the Tribunal is satisfied that the applicant has a valuable skillset which would greatly contribute to the Australian community and infrastructure.

    Community Contribution

18. The applicant has been involved in volunteer work in Australia. The applicant is a registered volunteer with Engineers Australia who are part of a planned scheme where engineers volunteer their time to engage with school children aged between 8 and 16 years to encourage them to pursue careers in Science, Technology, Engineering and Mathematics (STEM). This consists of speaking at schools and running STEM encounters where they are provided challenges such as building watertight shelters from assorted materials to reflect disaster relief or to build structures. The applicant has also been involved in ad hoc volunteer work such as tree-planting and rubbish clean-ups.

19. Information before the Tribunal indicates that the applicant’s professional work has been heavily community focused delivering congestion relief, highway upgrades and projects to reduce community severance (installing additional traffic signal control crossings, and/or new footways, installing or upgrading bridges), and safety improvement schemes (identifying causes of accident areas and designing and implementing measures to remove the causes). Included in those roles were site safety inspections during construction to ensure the safety of the public and being on-call to deal with site issues 24 hours as part of his safety responsibilities.

20. The applicant has been responsible for the management design of transmission lines and substations to provide future security of energy supply for NSW, Victoria, and SA. The applicant is now responsible for the management of design and safety congestion relief projects, community safety projects and network connectivity maintenance for Western Sydney, which includes responding to natural disaster emergencies to enable the road network to be re-opened and the management of any design works for the temporary and permanent repair to damage caused by floods and bushfires and to bridges and road network. This includes being on-standby for emergency callouts over the last two Christmas periods to ensure any disruption to the community is kept to minimum in the case of any emergency.

    Conclusion

21. Based on the cumulative evidence, the Tribunal is satisfied that the applicant is unlikely to cause undue cost to the Australian community and undue prejudice to access to health care or community services of Australian citizens and permanent residents. The Tribunal is satisfied that the applicant has sufficient financial means, private health coverage and is in a stable medical condition. He also has a live donor available. The Tribunal is further satisfied that any such risk would be outweighed by the economic benefits provided in having that applicant’s experience and skill set as a Transport Engineer. His absence would have a significant detrimental impact to the construction industry, including major Commonwealth and State infrastructure projects. The Tribunal also accepts that the applicant makes a significant community contribution.   

22. 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 PIC 4007(2)(b). Therefore PIC 4007(1)(c) may be waived subject to the applicant satisfying all other requirements for the visa.

23. 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

24. 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.

    Naomi Schmitz

    
    

    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.