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

1. 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).

2. 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.

3. 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

4. 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 decision on the papers.

5. The Tribunal additionally sought confirmation as to whether the applicant wished to obtain a further opinion from a Medical Officer of the Commonwealth regarding his current health status.

6. On 17 October 2023, the representative advised the Tribunal via email that the applicant and his employer now wished to attend a hearing to share their story and the circumstances of the case. By separate email, the representative advised that the applicant did not “desire to gain a further opinion from the Medical Officer of the Commonwealth as nothing has changed since his last medical examination.”

7. On 27 October 2023, the Tribunal invited the applicant to appear before the Tribunal via video conference on 21 November 2023 at 2:00pm.

8. On 20 November 2023, the Tribunal received submissions from the applicant’s employer attesting to the applicant’s contribution to the business and financial data.

9. On 21 November 2023, the applicant appeared before the Tribunal via video, to give evidence and present arguments. The Tribunal also received oral evidence from [Messrs A and B].

10. The Tribunal exercised its discretion to hold the hearing by video. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

11. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

12. The Tribunal notes that numerous evidence and submissions were lodged by or on behalf of the applicant. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein. The Tribunal also has before it the Department file containing all information before the delegate at the time of their decision.

13. For the following reasons, the Tribunal has concluded that decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. 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.

15. 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].

16. 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.

17. 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.

18. 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.

19. 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.

20. 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))?

21. 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.

22. 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).

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

24. In determining whether a person meets PIC 4005(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?

25. 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.

26. The Tribunal has before it, an opinion from a Medical Officer of the Commonwealth dated 3 March 2023 in relation to the applicant. The opinion concludes the applicant does not satisfy PIC 4005(1) (c) (ii) (A) in Schedule 4 to the Migration Regulations.

27. The MOC in their report of 3 March 2023, identified the form or level of the condition suffered by the applicant as “asymptomatic Human Immunodeficiency Virus infection and requires antiretroviral treatment. Current Australian guidelines recommend that all persons with HIV infection should be treated indefinitely” The MOC applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition. The MOC states “ 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 antiretroviral pharmaceuticals. This condition is likely to be Permanent.

    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 as above.”

28. The applicant has been assessed for the period of a permanent stay in Australia.[1]

    [1]  On 1 July 2019, the time period used for estimating significant costs by the MOC’s for permanent and provisional applicants was reduced to a maximum of 10 years.

29. The MOC states that these services would be likely to include pharmaceuticals and medical services and concludes that the 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.

30. After considering all of the above, the Tribunal is satisfied that it has obtained an opinion from a Medical Officer of the Commonwealth, the most recent being 3 March 2023. The Tribunal finds it is satisfied for the above reasons that the opinion is a valid opinion and must be taken by the Tribunal to be correct.

31. Accordingly, based on the opinion of the MOC, the applicant does not satisfy Public Interest Criterion 4005(1)(c). It follows that the applicant does not satisfy cl.187.235(1) of the regulations, which is a requirement for the grant of the visa. Therefore, the applicant does not meet cl.187.235 of the Regulations.

32. As the applicant has not satisfied the requirements of PIC 4005, and as such does not satisfy the requirements of cl.187.235, the Tribunal must affirm the decision under review.

    Request for referral to the Minister

33. The Tribunal has no discretion to waive the specific requirements in PIC 4005 which relates to an applicant’s ability to satisfy the health requirements relevant to their visa application.

34. Under s.351 of the Act, the Minister may substitute, for a decision of the Tribunal, a decision which is more favourable to an applicant, if the Minister thinks it is in the public interest to do so.

35. The Tribunal has no statutory obligation to consider whether matters should be referred to the Minister for consideration of use of his powers under s.351 of the Act, nor is there any statutory power to make a binding recommendation in this regard. The power under s.351 of the Act may only be exercised by the Minister personally. Furthermore, the powers are non-compellable, in the sense that the Minister has no duty to consider whether to exercise the relevant power, regardless of whether he is requested to do so by the applicant, or any other person, or in any other circumstances.

36. The Minister has issued guidelines explaining the circumstances in which he may wish to consider exercising his public interest powers under s.351 of the Act. The guidelines indicate that the Minister will give possible consideration to exercising his public interest powers in cases which are referred by the Tribunal and which exhibit one or more unique or exceptional circumstances.

37. The circumstances which may be unique or exceptional in this case include, relevantly:

    Circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case.

    Is this an appropriate case to refer to the Minister?

38. In this case, for the reasons set out in this decision, the applicant does not satisfy the health requirements for the granting of a subclass 187 visa.

39. The applicant is a [Age]-year-old national of [Country] who arrived in Australia in May 2013.

40. The applicant has worked for his current employer [Employer] T/A [Trading name], since October 2017 as [an Occupation].

41. The applicant applied for a subclass 187 visa on 10 November 2017 which was refused by the Department on 18 July 2019, as the associated nomination had been refused.

42. Upon review by the Tribunal, on 20 October 2022, the Department’s decision was substituted for a decision approving the nomination and the applicant’s associated subclass 187 application was remitted to the Department for reconsideration. The nomination was subsequently approved by the Department on 26 October 2022.

43. After reconsideration by the Department, due to the applicant being diagnosed with HIV on 2 September 2020, the Department found the applicant did not satisfy PIC 4005, and therefore did not meet cl.187.235 of Schedule 2 to the Regulations.

44. The applicant accepts that he does not satisfy the health criteria (PIC 4005) as applicable to his subclass 187 application. The applicant however wished it noted that at the time of lodgement of the nomination and his associated visa application (10 November 2017) the applicant did not suffer from a health condition precluding him from being granted a subclass 187 visa. The applicant’s condition was diagnosed in September 2020.

45. The Tribunal notes that the intent of the Regional Sponsored Migration Scheme is to attract skilled workers to live and work in a designated regional area of Australia.

46. The evidence before the Tribunal supports that the applicant is highly regarded and has the support of his employer, who deem him crucial to their NSW/ACT operations. At the hearing [Messrs A and B] provided credible accounts of the applicant’s contribution to the business, highlighting his achievements in driving profitability in their NSW and ACT [workplaces]. The company has faced major challenges as a result of the COVID pandemic and is now realising growth. However, any disruption to the management of the ACT/NSW operations would have an adverse impact on the company, through the loss of the applicant’s skills and potential financial losses through sourcing a suitably trained and experienced replacement.

47. The Tribunal does not consider all the above factors to be exceptional or unique, but taken cumulatively, it considers that it is warranted to refer this matter to the Minister for consideration of the exercise of the Minister's power under s.351 of the Act.

48. While the applicant does not necessarily contribute benefits that may be considered 'unique or exceptional' in Australia, the Tribunal acknowledges that the effects of COVID-19, along with the changing economic landscape have created challenges in attracting and retaining skilled workers particularly in regional Australia. The Tribunal accepts that the applicant has contributed by working in regional Australia and will continue to contribute to the regional and broader Australian economy, through his employment with an established Australian employer of the calibre of [Trading name].

49. Having regard to the circumstances of the applicant as outlined above, the Tribunal considers that the application of the relevant legislation leads to unfair or unreasonable results in the applicant’s case and will lead to an unfair or unreasonable outcome to his employer, a well-established Australian business. Accordingly, the Tribunal considers it appropriate to refer this matter for Ministerial consideration pursuant to s.351 of the Act.

50. 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

51. The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) visa.

    Karen McNamara
    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.