Aris (Migration)

[2018] AATA 125

Aris (Migration) [2018] AATA 125 (1 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Aris

CASE NUMBER:  1705446

DIBP REFERENCE(S):  BCC2015/1071483

COUNTRY OF REFERENCE:                  Indonesia

MEMBER:Kate Millar

DATE:1 February 2018

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for a Regional Employer Nomination (Permanent) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 187 -  Regional Sponsored Migration

·PIC 4007(2)(b) for the purposes of cl.187.224 of Schedule 2 to the Regulations.

Statement made on 01 February 2018 at 11:54am

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) visa – Subclass 187 Regional Sponsored Migration Scheme – Health requirements – Applicant’s daughter’s medical condition – Family ties – Financial ties in Indonesia

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 2.25A, Schedule 2 cl 187.224, Schedule 4 PIC4007

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 Immigration on 1 March 2017 to refuse to grant the applicant a Regional Employer Nomination (Permanent) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 9 April 2015. The delegate refused to grant the visa as the applicant did not satisfy cl.187.224 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4007 of Schedule 4 to the Regulations was not met.

3. Mr Aris appeared before the Tribunal on 31 January 2018 to give evidence and present arguments, and was represented in relation to the review by his registered migration agent. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this review is whether each member of the family unit of Mr Aris satisfies Public Interest Criterion (PIC) 4007 as required by cl.187.224. Public Interest Criterion 4007, as it applies to this case, is extracted in the attachment to this decision. It requires members of the family unit who are not migrating with the applicant to meet the health requirements and to be free of certain diseases or conditions that may have an impact on the community. This requirement can be waived if the Minister, and the Tribunal in the place of the Minister, is satisfied that the applicant satisfies all the other criteria for the grant of the visa and the grant of the visa is unlikely to result in 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.

6. In determining whether a person meets PIC 4007(1)(a), (b) or (c), r.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: r.2.25A(3).

7. In this case, Mr Aris’ daughter Susann has a functional impairment relating to a childhood head injury.  This means she requires assistance with activities of daily living and allied health therapies.  The Medical Officer of the Commonwealth (MOC) considers that as a result she would require residential care, Commonwealth and State disability services and special education services at a cost of $2,902,000.  The MOC found Susann meets PIC 4007(1)(a) and (b) but does not meet PIC 4007(1)(c). 

8. Mr Aris does not take any issue with the assessment of the Medical Officer of the Commonwealth, however says Susann’s condition is unlikely to cause undue cost to the Australian community or undue prejudice to the access to health and community services of an Australian citizen or permanent resident because his wife and three children do not intend to migrate to Australia.

9. I am satisfied that an opinion form a MOC is required, that the MOC has applied the correct test and that the opinion is properly made.  The opinion of the MOC is that Susann does not meet PIC 4007(1)(c), and I find she does not meet this criterion. 

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

10. 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 (‘undue cost’) or undue prejudice to the access to health care or community services of an Australian citizen or permanent resident (‘undue prejudice’): 4007(2).

11. In this case, it seems to be that given Mr Aris’ reliance on his statement that he will not seek to bring his family to Australia, the main issue is whether the grant of the visa would be ‘unlikely’ to result in 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.

12. The Macquarie Dictionary defines ‘unlikely’ as ‘not likely to happen or be; improbable; probably not going (to do, be etc.)’.  The Oxford Dictionary defines unlikely as ‘not likely to happen, be done, or be true; improbable’.  Given the health requirements looks to the cost to the Australian community over the time of the visa; in this case a permanent visa, I consider this requires a consideration of whether the grant of the visa is unlikely to result in undue cost or prejudice both at this point in time and for the period of the visa.

13. Mr Aris said he has been in Australia for 12 years and has no intention of bringing his wife and three children to Australia. He said that the family would not cope with the culture or the language if they were to come to Australia.  Susann is now 18 years of age and they also have another daughter Jennie who is 14 and a son Joshua who is 8.  Mr Aris said he does not have other relatives in Australia, and that his parents and two subkings live in Indonesia.  He said his wife’s family also live in Indonesia. 

14. His children all attend private schools in Indonesia, and live in a property he owns with his wife’s sister and her family.  He said he has purchased another property in Indonesia and is building a house on it, but has not decided whether his family will live in it or he will rent it out.  He does not have any other assets in Indonesia or Australia.  He currently rents an apartment in Western Australia, and has rented this property for 13 months. 

15. Mr Aris said if granted the visa he would be likely to buy a property in Perth.  He said he is seeking the visa so that he does not have to reapply for a subclass 457 visa or equivalent.  He has been with the same employer for 6 years, and has provided references that he is a valuable employee.

16. Mr Aris works as a fly in fly out worker and returns to Indonesia when he can.  He said if there is no work he plans a week ahead and will return home.  He said the time he can return depends on demand and if equipment breaks down.  His movement records show that from when he arrived in 2005 until mid-2016 he left Australia approximately every six months, and from mid-2016 he has left Australia approximately every month.  His representative submitted as Mr Aris is now based in Western Australia it is cheaper for him to travel to Indonesia. 

17. A relevant factor in determining whether the grant of the visa would result in undue cost or undue prejudice is that Mr Aris’ wife and children have not applied for the grant of a visa.  Should they wish to come to Australia, they would have to apply for visas.  The requirements for a spouse visa include PIC 4007, as do the requirements for the grant of a child visa.  A tourist visa requires that applicants meet PIC 4005, which cannot be waived.  It follows that if his wife and children apply for another visa, they would again have to satisfy health requirements and show whether, if they were to come to Australia, Susann’s condition would result in undue cost or undue prejudice. 

18. While Mr Aris has worked in Australia for a long period of time, he has maintained his family in Indonesia.  His children attend school in Indonesia, and he states his wife relies on the support of family in Indonesia to care for Susann. Both his and his wife’s extended family are in Indonesia. He owns property in Indonesia, and has financial ties to Indonesia.  As a result, I accept that he does not have an intention to bring his wife and children to Australia.  Should he wish to do so, they would have to apply for a visa and either meet the health criteria or show why it should be waived.

19. In these circumstances, I find that the grant of the visa would not result in an 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.

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

21. 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

22. The Tribunal remits the application for a  Regional Employer Nomination (Permanent) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 187 -  Regional Sponsored Migration Scheme visa:

    ·PIC 4007(2)(b) for the purposes of cl.187.224 of Schedule 2 to the Regulations.

    Kate Millar

    
    

    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.