Basilio (Migration) - [2020] AATA 1667

Basilio (Migration) [2020] AATA 1667 (5 February 2020)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Ms Julie Malasig Basilio

CASE NUMBER: 1708019

DIBP REFERENCE(S): BCC2016/1328412

MEMBER: Susan Trotter

DATE AND TIME OF

ORAL DECISION AND REASONS: 5 February 2020 at 1:15 pm (QLD time)

DATE OF WRITTEN RECORD: 2 March 2020

PLACE OF DECISION: Brisbane

DECISION:The Tribunal remits the application for an Employer Nomination (Permanent) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 186 - Employer Nomination Scheme visa:
PIC 4007(2)(b) for the purposes of cl.186.224 of 0

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – health criteria not met – proven work history in Australia – ability to mitigate costs of her care – PIC 4007(1)(c) may be waived – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 2.25 Schedule 2, cls 186.224, Schedule 4, Public Interest Criteria (PIC) 4007

CASES
Bui v MIMA (1999) 85 FCR 134
Ramlu v MIMIA [2005] FMCA 1735
Robinson v MIMIA (2005) 148 FCR 182

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 30 March 2017 to refuse to grant the visa applicant an Employer Nomination (Permanent) Subclass 186 visa under the Migration Act 1958 (the Act).
At the hearing on 5 February 2020, the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.
STATEMENT OF DECISION AND REASONS
The visa applicant is a 46 year-old citizen of the Philippines who applied for the visa on 31 March 2016. She originally arrived in Australia in October 2012 as the holder of a student visa and has subsequently held a further student visa and a Subclass 457 temporary business visa during her time in Australia.
The delegate refused to grant the visa on the basis that they were not satisfied that the applicant met cl.186.224 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the health criteria set out in Public Interest Criteria (PIC) 4007 of Schedule 4 to the Regulations, was not met as required. The applicant lodged an application for a review of the delegate’s decision with the Tribunal on 12 April 2017.
On 20 November 2019, the Tribunal wrote to the applicant and invited her to obtain an updated opinion from a Medical Officer of the Commonwealth (MOC). The delegate’s decision had been made in reliance on a previous decision of a MOC dated 4 November 2016, which by the time of the Tribunal’s letter, on 20 November 2019, was over three years old.
The applicant responded to that invitation of the Tribunal requesting a further opinion and provided evidence of the required payment for a further opinion. On 9 December 2019, the Department provided the Tribunal with a further MOC opinion. That further opinion dated 13 December…

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 1667
Decision Date: 5 February 2020

CaseChat Overview and Summary

This matter concerned a review by the Administrative Appeals Tribunal of a delegate's decision to refuse an Employer Nomination (Permanent) (Class EN) Visa, Subclass 186, to a 46-year-old citizen of the Philippines. The applicant had been in Australia since 2012, holding various visas including student and Subclass 457 temporary business visas. The delegate's refusal was based on the applicant not meeting the health criteria under Public Interest Criterion (PIC) 4007 of Schedule 4 to the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the applicant satisfied PIC 4007(1)(c), which relates to meeting health requirements, or if a waiver of this criterion was permissible and appropriate in the circumstances. This involved considering a Medical Officer of the Commonwealth (MOC) opinion, which concluded that the applicant, suffering from stable chronic renal disease and having undergone a renal transplant, did not meet the health criteria. The Tribunal also had to assess the estimated costs to the Australian community associated with the applicant's condition, which were calculated at $135,890.

The Tribunal reasoned that while the MOC opinion confirmed the applicant did not meet PIC 4007(1)(c)(ii)(A), the applicant had provided evidence of her work history in Australia and her ability to mitigate the costs of her care. The Tribunal considered these factors in the context of whether PIC 4007(1)(c) could be waived. After considering the evidence presented by the applicant, including arguments from her registered migration agent and the MOC's updated opinion and costings, the Tribunal determined that the matter should be remitted for reconsideration. The Tribunal's decision to remit indicates that it found sufficient grounds to revisit the delegate's refusal, likely due to the potential for a waiver of the health criterion.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

At the hearing on 5 February 2020, the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.STATEMENT OF DECISION AND REASONS The visa applicant is a 46 year-old citizen of the Philippines who applied for the visa on 31 March 2016. She originally arrived in Australia in October 2012 as the holder of a student visa and has subsequently held a further student visa and a Subclass 457 temporary business visa during her time in Australia. The delegate refused to grant the visa on the basis that they were not satisfied that the applicant met cl.186.224 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the health criteria set out in Public Interest Criteria (PIC) 4007 of Schedule 4 to the Regulations, was not met as required. The applicant lodged an application for a review of the delegate’s decision with the Tribunal on 12 April 2017. On 20 November 2019, the Tribunal wrote to the applicant and invited her to obtain an updated opinion from a Medical Officer of the Commonwealth (MOC). The delegate’s decision had been made in reliance on a previous decision of a MOC dated 4 November 2016, which by the time of the Tribunal’s letter, on 20 November 2019, was over three years old. The applicant responded to that invitation of the Tribunal requesting a further opinion and provided evidence of the required payment for a further opinion. On 9 December 2019, the Department provided the Tribunal with a further MOC opinion. That further opinion dated 13 December 2019 concluded, as had the earlier opinion, that the applicant did not satisfy PIC 4007(1)(c)(ii)(A) of Schedule 4 to the Regulations on the basis that the applicant was a 46 year-old person with stable chronic renal disease having had a renal transplant. In conjunction with the MOC opinion on 13 December 2019, the Department also provided the Tribunal with amended costings of the MOC. Those amended costings provided in a document called “Health Waiver Information”, also dated 13 December 2019, noted that the MOC had estimated the cost to the Australian community of the services, as identified by the MOC as being likely to be required in relation to the renal condition impacting upon the applicant, as $135,890. The Tribunal invited the applicant to appear before it at a hearing and provided the applicant with a copy of the MOC opinion together with the Health Waiver Information dated 13 December 2019. The applicant appeared before the Tribunal on 5 February 2020 to give evidence and present arguments. The applicant also had available to give evidence by telephone, as necessary, her renal physician Dr Parnham. However, it was not necessary for the Tribunal to hear from Dr Parnham. The applicant was represented in relation to the review by her registered migration agent. As has already been indicated, the Tribunal has remitted the matter for reconsideration and the following are the Tribunal’s reasons for that decision.Case Number 1708019 Page 2 of 7

Ratio Decidendi

Legal Principle Established

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