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

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).
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.
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.
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.
On 20 July 2022, the applicant provided further information to support his application for a health waiver which was considered by the MOC.
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.
The MOC made the following findings:
The applicant is a 45 year old person with:

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 2218467 (Migration)

Details

AGLC: 2218467 (Migration) [2024] AATA 502
Case: [2024] AATA 502
Decision Date: 30 January 2024

CaseChat Overview and Summary

This matter concerned an appeal to the Tribunal regarding an Employer Nomination (Permanent) visa (Subclass 186). The central dispute revolved around whether the applicant met Public Interest Criterion (PIC) 4007, which relates to health requirements for visa applicants. The Tribunal, constituted by Naomi Schmitz, was tasked with reviewing the decision that the applicant did not meet these health criteria.

The legal issues before the Tribunal were whether the applicant was free from tuberculosis, free from a disease or condition that posed a threat to public health or the Australian community, and free from a disease or condition that would likely result in significant costs to the Australian community or prejudice access to health services for Australian citizens or permanent residents, as stipulated by PIC 4007(1)(a), (b), and (c). The Tribunal also had to consider whether a Medical Officer of the Commonwealth (MOC) opinion was required and, if so, whether it had been correctly applied. Furthermore, the Tribunal was required to determine if the circumstances warranted a waiver of the PIC 4007 requirements under PIC 4007(2).

The Tribunal reasoned that a MOC opinion was required in this case and that the Tribunal must be satisfied that the MOC applied the correct statutory criteria. The Tribunal noted that while the applicant did not meet the standard health criteria under PIC 4007, there were grounds to consider a waiver. The applicant possessed unique skills and experience, had the financial capacity to mitigate potential healthcare costs, and had a live donor available for medical treatment. Additionally, the Tribunal considered whether there were compassionate or compelling circumstances affecting the interests of Australian permanent residents.

Ultimately, the Tribunal concluded that the matter should be remitted for reconsideration. The Tribunal directed that the applicant be considered to meet PIC 4007(2)(b) for the purposes of clause 186.224 of Schedule 2 to the Regulations, indicating that the waiver provisions were applicable and that the remaining criteria for the visa should be assessed.

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 matter should be remitted for reconsideration. CONSIDERATION OF CLAIMS AND EVIDENCE 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))? 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. 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. 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. As the applicant in this case has applied for a permanent visa, the exemption provision in PIC 4007(1B) does not apply. 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? 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.

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.Naomi SchmitzMemberATTACHMENTMigration 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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