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

1. 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).

2. 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

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. The applicant was represented in relation to the review by her registered migration agent.

11. 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

1. The criteria for a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Regulations and include cl.186.224(1), which requires that an applicant satisfies PIC 4007. That criterion requires an applicant, in certain circumstances, to undergo a medical assessment and to be free of certain diseases or conditions that may impact on the community. PIC 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.

2. PIC 4007(1)(c) requires the applicant to be free from a disease or a condition which would be likely to require healthcare or community services or which would meet the medical criteria for provision of a community service during the supplied period; and provision of healthcare 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 healthcare or community services.

3. For specified temporary visas, exemptions can apply. However, as the applicant in this case has applied for a permanent visa, no exemption applies.

4. 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 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 to be correct: r.2.25A(3).

5. The requirement in PIC 4007(1)(c) to be free of a disease or condition that would impact upon healthcare or community services may be waived, if amongst other things, 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 healthcare or community services of an Australian citizen or permanent resident: PIC 4007(2).

6. The basis of 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 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.

7. The applicant in this case has been diagnosed with stable chronic renal disease and had a successful renal transplant in 2017. The MOC opinion on 13 December 2019 formed an opinion that a hypothetical person in Australia with the same condition as the applicant, at the same severity, would be likely to require long term specialist healthcare services, including, but not limited to, immunosuppressive medications and medical supervision. The MOC further determined that the applicant’s condition is likely to be permanent.

Case Number 1708019  Page 3 of 7

1. The MOC additionally determined that the provision of those healthcare and/or community services would be likely to result in a significant cost to the Australian community in the areas of healthcare and/or community services, including based upon the calculation contained in the associated Health Waiver Information.

2. Notably the MOC determined in that waiver information that, in their opinion, granting a visa to the applicant for the assessed period of stay would not be likely to prejudice the access of an Australian citizen or permanent resident to healthcare or community services.

3. The applicant provided various documents to the Department and to the Tribunal and submitted that the discretion allowed for in the legislation should be exercised so as to waive the requirement of PIC 4007(1)(c)(ii)(A). The documentation provided by the applicant included the following reports from Dr Parnham: dated 21 October 2016, 18 July 2018 and 27 November 2019. The documentation also included a letter from the Princess Alexandra Hospital date 23 January 2017 and a letter from Gold Coast Health dated 27 November 2019.

4. Additionally, numerous documents were received in relation to the applicant’s financial circumstances and her qualifications, including as a midwife and nurse.

5. Notably, the evidence before the Tribunal was that the applicant is a longstanding employee in the hospital system and is currently a clinical nurse within the neonatal intensive care unit at the Gold Coast University Hospital. In addition to the medical reports in evidence before the Tribunal as already noted, the Tribunal was also provided with numerous and voluminous references and recommendations from colleagues and associates of the applicant, including the following:

   ·     A character reference dated 20 January 2020 from Sharon Grobler, practice development nurse at the Gold Coast Hospital and Health Service.

   ·     A reference from Sipho Faya, registered nurse.

   ·     A letter of recommendation from Claire Cain, clinical nurse from the neonatal intensive care unit at the Gold Coast University Hospital dated 17 January 2020.

   ·     A character and reference letter from Kelly Semple, clinical nurse neonatal intensive care unit at the Gold Coast University Hospital dated 20 January 2020.

   ·     A character reference from Shelley Jackson, clinical nurse/midwife neonatal intensive care unit at the Gold Coast Hospital and Health Services dated 20 January 2020.

   ·     A letter of reference from Philippa Meehan dated 21 January 2020.

   ·     A character and support letter from Karen Clark, clinical nurse at the Gold Coast University Hospital dated 21 January 2020.

   ·     A reference letter from Susan Bright, clinical nurse from the neonatal intensive care unit at the Gold Coast University Hospital dated 18 January 2020.

   ·     A character reference from Nesterlee Gammad, neonatal intensive care registered nurse dated 20 January 2020.

   ·     A letter of reference from Jill Daub, registered nurse.

   ·     A letter of reference from Laurel Carizza, registered nurse at the Gold Coast University Hospital dated 21 January 2020.

   ·     A letter of reference from Margaret Alcock, registered nurse/midwife neonatal nurse at the Gold Coast University Hospital.

   ·     A further report of Dr Parnham dated 16 January 2020. The Tribunal was also provided with a letter from Dr Peter Smith, the director of Neonatology, Newborn Care Unit, Gold Coast University Hospital dated 15 January 2020.

   ·     A letter from Joseph Tauro, Neonatal Consultant, Gold Coast University and Health Service dated 15 January 2020.

   ·     A letter from Dr Randa Khogali, a neonatal consultant with the newborn care unit.

Case Number 1708019  Page 4 of 7

·     A letter from Cathy van der Berg, the nurse unit manager/neonatal intensive care unit, newborn care unit Gold Coast University Hospital.

·     A letter of reference from Liz Chappell, neonatal nurse educator from Gold Coast University Hospital.

·     A reference letter from Lisa Kim Wright, clinical nurse Gold Coast University Hospital dated 15 January 2020.

·     A letter of reference from Erika Rossouw, clinical nurse Gold Coast University Hospital.

·     A letter of reference from Victoria Mitchell, clinical nurse/CF newborn care unit Gold Coast University Hospital dated 21 January 2020.

1. Additionally, the Tribunal was provided with evidence, supplemented by the applicant’s oral evidence at hearing, that she has been accepted for a clinical trial in relation to one of the two drugs that attracts a benefit from the government, such that the cost of her treatment to the public purse for medications is now only $1,400 per year rather than $6,000 per year, resulting in an estimate even more reduced than in the most recent Health Waiver Information.

2. It was submitted that a more accurate cost to the Australian community in relation to the condition impacting upon the applicant will now be $113,080.

3. The Tribunal also heard evidence from the applicant at hearing that the renal transplant in 2017 has been entirely successful such that she is now only required to consult with her specialist and have blood tests every three months. The Tribunal notes that this evidence is corroborated by the specialist reports from Dr Parnham in evidence before the Tribunal. Notably, Dr Parnham’s most recent report of 16 January 2020 confirms that the applicant’s frequency of appointments with him is now every three months.

4. Dr Parnham’s letter also confirms the provision of one of the anti-rejection drugs to the applicant for free for the foreseeable future, noting that it is the most expensive of the transplant drugs she is required to take.

5. Having had regard to all of the evidence before it, the Tribunal particularly took note of the very valuable occupation skills of the applicant and her proven record over recent years of full-time work with little absence from work and significant contribution to the community as a taxpayer. The Tribunal accepts that, based on her skills and proven work history in Australia, the applicant has the resources and ability to mitigate costs of her care. The Tribunal strongly accepts that the applicant has a very significant contribution to make to the Australian community, as she has been doing over recent years. Notably all indicators are that the renal transplant in 2017 has been entirely successful and it is expected that the applicant will have a usual life expectancy with minimal medical challenges.

6. Of considerable importance, and upon which the Tribunal placed considerable weight, are the many references and letters from colleagues and associates who all have spoken in detail of the applicant’s value to the community. Notably, and the Tribunal accepts, the applicant is one of the foundation members of the neonatal intensive care unit nursing team employed by Queensland Health at the neonatal care unit at the Gold Coast University Hospital.

7. In particular, the nurse unit manager for that unit, Cathy van der Berg, refers in her reference dated 16 January 2020 to the applicant’s extensive tertiary nursing experience in that area and her excellent clinical procedural and interpersonal skills which have made her a highly respected and indispensable member of their unit, as is evidenced by all of the other references.

Case Number 1708019  Page 5 of 7

1. The Tribunal accepts that the applicant has worked with that unit for the last six years and has demonstrated a strong commitment to improving safety and quality in the unit and that she role models professional behaviour that exemplifies excellence in all aspects of nursing.

2. The Tribunal accepts that the applicant cares for very vulnerable patients, that is, extremely premature babies, in an environment filled with technology and machines and is welcoming to parents and helps them navigate a journey that is extremely challenging.

3. The Tribunal also notes Ms van der Berg’s reference to there being a national and international shortage of neonatal nurses and neonatal nurses with the skill set that the applicant has, and her reference to the applicant’s personal commitment to work as inspirational.

4. The Tribunal notes from the material before it that the applicant’s exemplary service is also represented by a nomination by her colleagues to represent the unit at the annual gathering of the Australian and New Zealand Neonatal Clinical Network in Sydney in relation to her contribution to the improvement of sepsis in the unit. The Tribunal accepts that the applicant is known for volunteering in the community and outside the community by being part of a team that provides maternal assistance packs for mothers in Papua New Guinea.

5. It is very clear from reading all of the reference material and the medical reports in evidence before the Tribunal that the applicant is a very valued member of the Australian community.

6. In considering these matters, the Tribunal considered whether the MOC opinion was required and also whether the MOC had applied the correct test in forming the opinion formed. On the evidence before the Tribunal, the opinion is required and has been obtained. As has already been noted, to take the opinion as correct, the Tribunal must first be satisfied that the MOC has applied the correct test in forming the opinion as is recognised in the case of 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, 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.

7. Whilst a previous MOC opinion has been provided, the Tribunal must have regard to the most recent opinion dated 13 December 2019. The outcome of this assessment is that whilst granting the visa would not be likely to prejudice the access of an Australian citizen or permanent resident to healthcare or services, the applicant does not satisfy the other subparagraph of PIC 4007(1)(c)(ii)(A), in that the MOC determined that the provision of necessary healthcare or community services to the applicant in relation to the specified condition would be likely to result in a significant cost to the Australian community in the areas of healthcare and community services specified, estimated at $135,890.

8. Having regard to all matters, the Tribunal is satisfied that the MOC opinion of 13 December 2019 identifies the condition with which the applicant has been diagnosed as being impacted by, to which the public interest criterion has been applied, and that the opinion has ascertained the form or level of the condition suffered by the applicant, and has applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition.

9. The Tribunal is therefore bound to accept that the final assessment of the MOC dated 13 December 2019 is correct for the purposes of deciding whether the applicant satisfies the relevant health criteria.

Case Number 1708019  Page 6 of 7

1. Turning to whether the applicant is free from relevant diseases or conditions mentioned in PIC 4007(1)(a) and (b), the Tribunal is satisfied on the evidence that the applicant is free from tuberculosis and is free from a disease or a condition that is or may result in the applicant being a threat to public health in Australia or a danger to the Australian community such that the Tribunal finds that PIC 4007(1)(a) and (b) are met.

1. However, based on the evidence before it, including the medical evidence provided by the applicant to the Tribunal and the Department and the MOC opinion, the Tribunal finds that the applicant has a condition of stable chronic renal disease with renal transplant that is likely to require healthcare or community services and that the provision of the healthcare or community services would be likely to result in costs estimated at $135,890, such that this is a significant cost to the Australian community in the areas of healthcare and community services.

2. The Tribunal accepts the applicant’s evidence that, in relation to the cost, given that one of her anti-rejection drugs is now being funded for the foreseeable future, this estimate is likely to be less. However, even allowing for that reduction, there would still be significant costs to the Australian community. PIC 4007(1)(c)(ii)(A) is therefore not met, such that the Tribunal then considered whether the requirement of PIC 4007(1)(c) could be waived.

3. The Tribunal has taken into account all of the written and oral evidence, including as specified earlier in these reasons in relation to the applicant. The Tribunal accepts that the applicant has a high level of tertiary education in her vocation and is extremely highly regarded in her vocation.

4. The Tribunal has before it a significant number of work and personal references in relation to the applicant, which speak not just to the applicant’s good character and skills and value to the community but also to the applicant’s voluntary work in the community, and the high regard in which the applicant has been held since her arrival into the Australian community in 2012.

5. The Tribunal also had evidence before it of recent payslips and tax statements evidencing the applicant’s employment.

6. The Tribunal has had regard to all matters, not least the applicant’s highly valued skills and her value to her longstanding employer and to Australian citizens and permanent residents who find themselves dealing with premature babies in the neonatal unit at the Gold Coast University Hospital, and to the Australian community generally, and all other relevant matters. Balancing those matters against the estimated cost from the latest MOC, the Tribunal is satisfied that the granting of the visa would not be likely to result in undue cost to the Australian community in all the circumstances, such that the Tribunal considers PIC 4007(1)(c) may be waived subject to the applicant satisfying all other requirements for the visa. It follows that the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for the visa.

   DECISION

7. 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 Schedule 2 to the Regulations.

   Susan Trotter
   Member

   Case Number 1708019  Page 7 of 7