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

1. 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).

2. 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 .

3. 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.

4. 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 the review because it is a requirement for the grant of the visa that applicants meet certain health requirements. These help to ensure that public expenditure on health and community services is contained.

   If we rely on this information in making our decision, we may find that the granting of
   the visa would likely to result in undue cost to the Australian community. This would
   mean that you do not satisfy a requirement for the grant of the visa and that we must affirm the decision that is under review.”

5. Following various extensions of time, the following material was received on 5 May 2020:

   a.A report from Paediatric Assessment Report from Specialist Paediatrician, Dr Gaudencio Gadil, dated 19 April 2018;

   b.A progress report from Dr Gadil dated 20 February 2020;

   c.An Occupational Therapy Functional Assessment Report by Ms Emma Swayn dated 27 March 2020;

   d.A letter from the Principal of Henbury School, Ms Sarah Corry, dated 20 February 2020;

   e.Semester 1 and Semester 2 2019 reports from Henbury School;

   f.A pay slip for the applicant, dated 24 March 2020.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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))?

8. 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.

9. 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.

10. 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?

11. 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.

12. 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.

13. Taking the MOC opinion dated 20 June 2017 as being correct, the Tribunal is satisfied that Master Enrique Balatero is free from tuberculosis. He is also free from a disease or condition that is, or may result in him being, a threat to public health in Australia or a danger to the Australian community. Accordingly, based on the opinion of the MOC, Master Enrique Balatero satisfies PIC 4007(1)(a) and PIC 4007(1)(b).

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

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

15. The evaluative judgment of whether the cost to the Australian community or prejudice to others is ‘undue’ may import considerations of compassionate or other circumstances: Bui v MIMA (1999) 85 FCR 134 (‘Bui’) at 47. Over and above the consideration of the likelihood that cost or prejudice will be ‘undue’ there is also the discretionary element of the ministerial waiver. And within that discretion, compassionate circumstances or compelling circumstances may be relevant: Bui at 47. Departmental policy guidance on the exercise of this discretion is contained in the Procedures Advice Manual (‘PAM3’). Broadly speaking, these relate to: family links in Australia and the impact on family members; occupational skills of the applicant or family members; assets or factors that may mitigate the costs or prejudice to access to care or services involved; available support from family or community groups; potential contribution to Australia by the applicant or family members; the immigration history of the applicant; other compelling and compassionate circumstances including location of the applicant and family members; and any other relevant factors.

16. The has assessed all the evidence before it. Tribunal places weight on Dr Gadil’s Paediatric Assessment Report of 6 December 2018. Although dated as at the time of decision, this report gives an objective and succinct background history. This includes the following paragraph:

    “The family relocated to Australia in February 2014. Enrique initially attended Parap Primary School at year 4 to 6. His school teacher described him to be a friendly child who enjoys being a part of the school community. He was assessed to require frequent support in the areas of curriculum access, behaviour, social competence, communication access and communication participation. He received medium funding for his Autism Spectrum Disorder (ASD) and given one on one support in the classroom and an Education Adjustment Plan (EAP) addressing his specific needs. He continued to make progress as a consequence of this support provided by the school and he was able to adapt to into the school community.

    He was transitioned to Henbury School for students with special needs in January 2017. He is currently in year 8.”

17. As at the time of Dr Gadil’s report, Master Enrique Balatero was assessed as having an “Excellent” “Relationship with parents” and “Relationship with siblings”. His social and academic performance was otherwise assessed as “Average”, except for Mathematics which was “Somewhat of a Problem”. Master Enrique Balatero’s “Overall school performance” was assessed as “Average”. Dr Gadil recommended ongoing psychological support and speech pathology, but not medication at that time.

18. The Tribunal has had the benefit of a longitudinal view of Master Enrique Balatero’s progress. In Dr Gadil’s letter of 20 February 2020 he wrote:

    “I note that he is progressing well at school.

    His school progress report in semester 1 and 2 2019 at Dripstone Middle School Outreach showed that he has made friends and participated in most activities with little prompting. He has always been on time for class and got most of his work completed. His teacher reported that he has shown improvement in Maths and English. He does show some frustration when starting an activity, but with some resilience and modelling, he gets the work completed.

    …

    The latest report from the principal, Sarah Corry, indicated that Enrique is a full time student in a low support classroom with ongoing Education and Adjustment Plan (EAP) and is accessing the Northern Territory Certificate of Education through modified subjects.”

19. It would seem to the Tribunal that Master Enrique Balatero’s medical prognosis has not significantly changed since Dr Gadil’s Paediatric Assessment Report of 6 December 2018.

20. The Tribunal has reviewed the Semester 1 and Semester 2 2019 reports from Henbury School, as referred to by Dr Gadil as “Dripstone Middle School Outreach” in his letter of 20 February 2020. The Tribunal accepts Dr Gadil’s summary as accurate. Furthermore, the Tribunal accepts the following evidence from Ms Corry in her letter dated 20 February 2020:

    “Enrique is a full time student in a low support classroom. …

    Enrique’s goal is to find paid employment and/or continue further studies when he graduates from Year 12 in 2022. Enrique is afforded many opportunities through the school to participate in the T2W (Transition to Work) program which includes VSS (Vocational Education and Training in Secondary Schools) program.”

21. This goal of employment seems realistic as, in her Occupational Therapy Functional Assessment Report of 27 March 2020, Ms Swayn wrote:

    “As Enrique nears the end of his schooling, he has begun to think about employment opportunities. Enrique reported that he would like to get a job working at Hungry Jacks. Given the above information and observations, the therapist estimates that Enrique will have the capacity to engage in paid employment in the future.”

22. The objective evidence outlined above satisfies the Tribunal that Master Enrique Balatero possesses basic occupational skills and possesses a desire to use them. The Tribunal is also satisfied that he is surrounded by enough professional support to do so. Accordingly, the Tribunal is satisfied that the granting of the visa would unlikely result in undue cost to the Australian community

23. For these reasons, the Tribunal is satisfied that the granting of the visa would be unlikely to result in undue cost or undue prejudice within the terms of PIC4007(2)(b). Therefore PIC 4007(1)(c) may be waived subject to the applicant satisfying all other requirements for the visa.

24. Given this finding, there is no requirement for the Tribunal to hold a further hearing to take evidence from Ms Balatero.

25. 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

26. 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 George

    
    

    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.