2312281 (Migration) - [2023] AATA 4509

2312281 (Migration) [2023] AATA 4509 (11 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Mark Roberts (MARN: 1575942)
CASE NUMBER:  2312281
MEMBER:Karen McNamara
DATE:11 December 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) visa.

Statement made on 11 December 2023 at 9:25am
CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – health criteria – disease or condition likely to require health care or community services at signifant cost to community – asymptomatic HIV infection likely to be permanent – opinion of medical officer of commonwealth taken as correct – no discretion to waive criterion – condition diagnosed after application made –crucial contribution to employer’s business in regional areas – referred for ministerial consideration – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), r 2.25A(3), Schedule 2, cl 187.235, Schedule 4, criterion 4005(1)(c)(ii)(A)
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 July 2023, to refuse to grant [the applicant] a Regional Employer Nomination (Permanent) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 10 November 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 (Cth) (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4005 of Schedule 4 to the Regulations was not met.
On 15 August 2023, the applicant lodged an application for review with the Tribunal. The application was accompanied by the following;
·Primary decision record dated 28 July 2023
·Written submission from representative dated 15 August 2023
·Acknowledgement by Department of subclass 187 application dated 10 November 2017
·Notification of refusal of nomination by Department dated 10 June 2019
·Notification of refusal of subclass 187 visa application by Department dated 18 July 2019
·AAT decision record dated 20 October 2022 re: nomination matter
·Department notice of approval of nomination dated 26 October 2022
·AAT decision record dated 20 October 2022 re: [the applicant]
·Submission by nominating employer
·Letter from [Sexual Health Centre] dated 9 August 2023
On 13 October 2023, the Tribunal wrote to the applicant (dispatched by email to the authorised recipient/representative), acknowledging the applicant’s request that the matter be referred to the Department for consideration under Ministerial intervention guidelines. The Tribunal sought confirmation from the applicant if he wished to proceed on this basis and if so, his written consent for the Tribunal to proceed with a…

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 2312281 (Migration)

Details

AGLC: 2312281 (Migration) [2023] AATA 4509
Case: [2023] AATA 4509
Decision Date: 11 December 2023

CaseChat Overview and Summary

This matter concerned an appeal by a visa applicant against the decision not to grant them a Regional Employer Nomination (Permanent) visa (Subclass 187). The applicant, a citizen of [Country], was nominated by [Employer] T/A [Trading name] for the occupation of [Occupation] ([ANZSCO]). The core of the dispute revolved around whether the applicant met Public Interest Criterion (PIC) 4005, which mandates that applicants be free from certain diseases or conditions that could impose a significant cost on the Australian community through healthcare or community services. The appeal was heard by a member of the Tribunal, Karen McNamara.

The legal issue before the Tribunal was whether the applicant satisfied PIC 4005(1)(c)(ii)(A) of the Migration Regulations 1994. This criterion requires that an applicant be free from a disease or condition that would likely necessitate health or community services, and that the provision of such services would likely result in a significant cost to the Australian community. The applicant had undergone a medical assessment by a Medical Officer of the Commonwealth (MOC) on 3 March 2023, which concluded that the applicant did not meet this criterion due to an asymptomatic HIV infection. The Tribunal was required to determine if the MOC's opinion complied with and was authorised by the relevant regulations, specifically regulation 2.25A.

The Tribunal's reasoning centred on the MOC's assessment and the statutory requirements of PIC 4005. The MOC's report, based on the applicant's medical examination including HIV serology, found that the applicant did not satisfy PIC 4005(1)(c)(ii)(A) for the period of a permanent stay in Australia. The Tribunal noted that the MOC applied the statutory criteria by reference to a hypothetical person with the identified condition. The Tribunal considered that the MOC's opinion was taken as correct and that there was no discretion to waive the criterion, even though the condition was asymptomatic and diagnosed after the application was made, and despite the applicant's crucial contribution to the employer's business.

Ultimately, the Tribunal affirmed the decision not to grant the visa. However, the Tribunal considered it appropriate to refer the case to the Minister for consideration of discretionary intervention powers under section 351 of the Migration Act 1958.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that 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]. The applicant has nominated his occupation as [Occupation] ([ANZSCO]) and is nominated by [Employer] T/A [Trading name]. On 3 March 2023, the Medical Officer of the Commonwealth (MOC) assessed the applicant against the health requirement for permanent stay in Australia 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. The Tribunal has before it a copy of the report from the MOC. This report considered the information available to date concerning the applicant, including but not limited to the applicant’s visa medical examination dated 27 January 2023 including HIV serology. The report found that the applicant had been assessed against PIC 4005 for the period of a permanent stay in Australia. The report found that the applicant did not satisfy PIC 4005(1) ( c)(ii)(A) in Schedule 4 to the Migration Regulations. The MOC identified the medical condition to which the public interest criterion had been applied and the form or level of the condition suffered by the applicant. The MOC applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition. The issue before the Tribunal is whether the opinion of the MOC complies with/is authorised by the regulations (r.2.25A as prescribed in Schedule 2 to the Migration Regulations 1994).Is the applicant free from the relevant diseases or conditions (PIC 4005(1)(a), (b), (c))? Public interest criterion 4005(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. 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).

Decision

Reasons for decision

The Tribunal therefore considers it appropriate to request that this case be brought to the attention of the Minister in order for him to exercise his discretionary intervention powers under s.351 of the Act.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

Full text does not contain this section.