Bate (Migration) - [2023] AATA 167

Bate (Migration) [2023] AATA 167 (27 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Jacqueline Annette Bate
Mr James Robert Bate
Miss Evelyn Hannah-Mai Bate
Master Harrison James Bate
REPRESENTATIVE:  Mr Rupert Timms
CASE NUMBER:  2213708
HOME AFFAIRS REFERENCE(S):          BCC2021/558524
MEMBER:Wan Shum
DATE:27 January 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for Skilled Nominated (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 190 visa:
·PIC 4005 for the purposes of cl 190.216(3) of Schedule 2 to the Regulations.

Statement made on 27 January 2023 at 4:27pm
CATCHWORDS
MIGRATION – Skilled Nominated (Permanent) visa (Class SN) – Subclass 190 (Skilled - Nominated) – health criteria – condition likely to require care or services at significant cost to Australian community – ankylosing spondylitis – opinion of review medical officer of commonwealth taken as correct – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.25, Schedule 2, cl 190.216(3), Schedule 4, criterion 4005(1)(c)
CASES
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 Home Affairs on 31 August 2022 to refuse to grant the applicants Skilled Nominated (Permanent) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 19 April 2021. The delegate refused to grant the visa on the basis that the first named applicant (now referred to as the applicant) did not satisfy cl 190.216(3) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4005 of Schedule 4 to the Regulations was not met.
The applicants were represented in relation to the review by the named representative.
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 the visa applicants meet Public Interest Criterion (PIC) 4005 as required by the criteria for the grant of the visa. Public Interest Criterion 4005, as it applies to this case, is extracted in the attachment to this decision. It requires the applicants, in certain circumstances, to undergo medical assessment, and to be free of certain diseases or conditions that may impact on the community. The second named applicant in this case has ankylosing spondylitis.
Is the applicant free from the relevant diseases or conditions (PIC 4005(1)(a), (b), (c))?
Public interest criterion 4005(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.
Public interest criterion 4005(1)(c) requires the applicant be free from a disease or condition which would be likely…

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.

Continue reading Bate (Migration)

Details

AGLC: Bate (Migration) [2023] AATA 167
Case: [2023] AATA 167
Decision Date: 27 January 2023

CaseChat Overview and Summary

This matter concerned an appeal by the applicants for a Skilled Nominated (Permanent) visa (Class SN) subclass 190. The central dispute revolved around whether the second applicant met Public Interest Criterion (PIC) 4005, which requires applicants to be free from diseases or conditions that could impose a significant cost on Australian health and community services. The applicants had disclosed that the second applicant suffered from ankylosing spondylitis.

The Tribunal was required to determine if the second applicant was free from a disease or condition that would likely require health care or community services, and if the provision of such services would likely result in a significant cost to the Australian community or prejudice access for Australian citizens and permanent residents. The Tribunal also had to consider the role of a Medical Officer of the Commonwealth (MOC) opinion in this assessment, as regulation 2.25A of the Migration Regulations 1994 mandates that such opinions, when required, must be taken as correct.

The Tribunal reasoned that a MOC opinion was necessary in this case to assess the impact of the ankylosing spondylitis against the criteria in PIC 4005(1)(c). While acknowledging that a MOC opinion is generally taken as correct, the Tribunal emphasised that it must first be satisfied that the MOC applied the correct legal test in forming their opinion, referencing case law such as *Robinson v MIMIA* and *Ramlu v MIMIA*. As the MOC opinion had not yet been obtained or properly considered in light of the correct legal test, the Tribunal concluded that it could not definitively determine whether PIC 4005 had been met.

Consequently, the Tribunal remitted the application for reconsideration of the remaining visa criteria, with a specific direction that the first applicant met the health criteria under PIC 4005 for the purposes of clause 190.216(3) of Schedule 2 to the Regulations. This indicated that the assessment of PIC 4005 for the second applicant remained outstanding and required further determination.

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 the visa applicants meet Public Interest Criterion (PIC) 4005 as required by the criteria for the grant of the visa. Public Interest Criterion 4005, as it applies to this case, is extracted in the attachment to this decision. It requires the applicants, in certain circumstances, to undergo medical assessment, and to be free of certain diseases or conditions that may impact on the community. The second named applicant in this case has ankylosing spondylitis. Is the applicant free from the relevant diseases or conditions (PIC 4005(1)(a), (b), (c))? Public interest criterion 4005(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. Public interest criterion 4005(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. For specified temporary visas, certain specified health care and community service are excluded from this consideration: PIC 4005(3). As the applicants in this case have applied for a permanent visa, the exclusion provision in PIC 4005(3) does not apply. In determining whether a person meets PIC 4005(1)(a), (b) or (c) reg 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: reg 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.

Decision

Reasons for decision

Given the findings above, the appropriate course is for the Tribunal to remit the matter to the Minister for reconsideration of the remaining criteria for the visa.decision The Tribunal remits the application for Skilled Nominated (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 190:·PIC 4005 for the purposes of cl 190.216(3) of Schedule 2 to the Regulations.Wan ShumMemberATTACHMENTMigration Regulations 1994Schedule 44005(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)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 (2); 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.(2)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.(3)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 (2) (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.

Ratio Decidendi

Legal Principle Established

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