BALATERO (Migration) - [2020] AATA 2554

BALATERO (Migration) [2020] AATA 2554 (28 May 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr REYNANTE BOLDO BALATERO
Mrs HELEN AGUHAR BALATERO
Master ENRIQUE AGUHAR BALATERO
Master SEBASTIAN AGUHAR BALATERO
CASE NUMBER:  1730710
DIBP REFERENCE(S):  BCC2016/1815340
COUNTRY OF REFERENCE:                   Philippines
MEMBER:Andrew George
DATE:28 May 2020
PLACE OF DECISION:  Darwin
DECISION:The Tribunal remits the application for Regional Employer Nomination (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 - Regional Sponsored Migration Scheme visa:
·PIC 4007(1)(a) and PIC 4007(1)(b) for the purposes of cl.187.224 of Schedule 2 to the Regulations; and
·PIC 4007(2)(b) for the purposes of cl.187.224 of Schedule 2 to the Regulations.

Statement made on 28 May 2020 at 5:01pm
CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – health criteria – condition likely to result in significant cost to Australian community – child with moderate intellectual impairment –opinion of medical officer of commonwealth – waiver of requirement – compassionate circumstances – educational progress – psychological support and speech pathology – capacity for employment – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), r 2.25A, Schedule 2, cl 187.224, Schedule 4, PIC 4007
CASES
Bui v MIMA (1999) 85 FCR 134
Ramlu v MIMIA [2005] FMCA 1735
Robinson v MIMIA (2005) 148 FCR 182

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of decisions made by a delegate of the Minister for Immigration on 23 November 2017 to refuse to grant the applicants Regional Employer Nomination (Permanent) visas under s.65 of the Migration Act 1958 (the Act).
The visa applicants applied for the visas on 23 May 2016. The delegate refused to grant the visa as the first named applicant (now referred to 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 by the third named applicant, Master Enrique Balatero .
The applicant appeared before the Tribunal on 24 February 2020 to give evidence. The second named applicant, Ms Helen Balatero, also attended the hearing but was not called upon to give evidence on that occasion. Mr Kelleher of Ward Keller represented the applicants at hearing.
At the conclusion of the hearing the Tribunal noted that it was minded to conduct a further hearing, subject to expert evidence being provided. It was procedurally convenient then to send the applicants an invitation on 10 March 2020 to comment on or respond to certain information under s.359A of the Act, which in part stated:
“The particulars of the information are:
·Master Enrique Balatero has been diagnosed with a Moderate Intellectual Impairment. In the Medical Officer of the Commonwealth’s opinion, the estimated potential cost involved with his condition is $3,055,500.
This information is relevant to…

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.

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Details

Case: [2020] AATA 2554
Decision Date: 28 May 2020

CaseChat Overview and Summary

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, subclass 187, by Mr. Balatero and his son, Master Enrique Balatero. The central dispute revolved around whether Master Balatero met Public Interest Criterion (PIC) 4007, which requires visa applicants to be free from certain diseases or conditions that could impose significant costs on the Australian community or prejudice access to health services. The case was heard by a member of the Tribunal.

The Tribunal was required to determine if Master Balatero met PIC 4007, specifically clauses (1)(a), (b), and (c), which address freedom from tuberculosis, threats to public health, and conditions likely to require significant health or community services at substantial cost to the community. The Tribunal also needed to consider whether a waiver of these requirements was applicable under PIC 4007(2). A key aspect of the determination involved assessing the validity and application of the Medical Officer of the Commonwealth (MOC) opinions provided.

The Tribunal reasoned that a MOC opinion was required to assess Master Balatero's compliance with PIC 4007. It noted that while a MOC opinion is generally taken as correct, the Tribunal must first be satisfied that the MOC applied the correct statutory criteria. The Tribunal found that the MOC opinions before it were not contested as to their validity. However, the Tribunal's decision indicates that the specific circumstances of the child's moderate intellectual impairment, including his educational progress and access to psychological and speech pathology support, were relevant considerations in the overall assessment of the PIC 4007 criteria and potential waiver.

Ultimately, the Tribunal remitted the application for reconsideration by the Minister. The Tribunal directed that the first named applicant (Mr. Balatero) be considered to meet PIC 4007(1)(a) and (b), and PIC 4007(2)(b) for the purposes of the visa criteria. This suggests that while the initial assessment of PIC 4007(1)(c) may have been problematic, other aspects of the PIC 4007 requirements, particularly concerning the waiver provision, were to be further considered.

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 Master Enrique Balatero, the son of the first named visa applicant, meets Public Interest Criterion (PIC) 4007 as required by the criteria for the grant of the visa. Public Interest Criterion 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. 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).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. There are two MOC opinions before the Tribunal, the most recent being dated 20 June 2017. The validity of this MOC opinion was not in contest at hearing.

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 Regional Employer Nomination (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 - Regional Sponsored Migration Scheme visa:·PIC 4007(1)(a) and PIC 4007(1)(b) for the purposes of cl.187.224 of Schedule 2 to the Regulations; and·PIC 4007(2)(b) for the purposes of cl.187.224 of Schedule 2 to the Regulations.Andrew GeorgeMemberATTACHMENTMigration 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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