Boniface (Migration)

[2024] AATA 4010

Boniface (Migration) [2024] AATA 4010 (8 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Sangeetha Boniface
Miss Nathanie Boniface
Master Nethan Boniface
Mr Boniface Sabariyar
Miss Naomi Boniface

CASE NUMBER:  2201424

HOME AFFAIRS REFERENCE(S):          BCC2020/2683872

MEMBER:Mary Sheargold

DATE:8 October 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled Work Regional (Provisional) (Class PS) visas.

Statement made on 08 October 2024 at 7:48am

CATCHWORDS

MIGRATION – Skilled Work Regional (Provisional) (Class PS) visa – Subclass 491 - Skilled Work Regional (Provisional) – health criteria – further Medical Officer of the Commonwealth opinion – likely costs of health care and community services – community advocate in the disability sector – employment in sectors with skills shortages in regional Queensland – referral for Ministerial Intervention – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 351
Migration Regulations 1994, Schedule 2, cl 491.211; Schedule 4, Public Interest Criterion 4005; r 2.25

CASES

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 Home Affairs on 20 January 2022 to refuse to grant the applicants Skilled Work Regional (Provisional) (Class PS) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 22 November 2020. 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 491.211(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 by the fifth named applicant.

3. The first and fourth named applicants appeared before the Tribunal by MS Teams video link from Queensland on 27 August 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Suresh Rajan.  The Tribunal hearing was conducted with the assistance of an interpreter in the Malayalam and English languages.

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this review is whether the visa applicant meets 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 applicant, in certain circumstances, to undergo medical assessment, and to be free of certain diseases or conditions that may impact on the community. The fifth named applicant in this case was assessed as a 3-year-old person having a moderate developmental delay; the first named applicant told the Tribunal that she is autistic.

   Is the applicant free from the relevant diseases or conditions (PIC 4005(1)(a), (b), (c))?

6. 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.

7. 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).

8. In the present case, the temporary visa the applicant is seeking is not specified in Legislative Instrument IMMI 16/067.  As such the health care and community services listed in IMMI 11/073 are excluded from consideration.

9. 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?

10. 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.

11. The Tribunal wrote to the applicants on 8 February 2024 to confirm whether the applicants would seek an updated MOC opinion in respect of the fifth named applicant, Naomi.  The Tribunal asked the applicants to provide any updated medical information that may be relevant for the MOC’s consideration to be forwarded along with payment of the $520 fee required. On 20 February 2024, the first named applicant returned the payment form to the Tribunal, but no additional or updated medical documents were provided.

12. The Tribunal sought a new opinion from the MOC, which was received by the Tribunal on 26 February 2024.  As expected, Naomi was found not to meet the health requirement due to her moderate developmental delay observed in all medical reports at the time the application was made.  The Tribunal is satisfied that the MOC opinion provided is valid because it meets the requirements set out in reg 2.25A(1) of the Regulations and it addresses satisfaction (or otherwise) of these requirements at the time of the Minister’s decision.

13. For completeness, the Tribunal notes that the MOC assessed the likely costs of health care and community services for Naomi against a permanent stay in Australia, and included an assessment for the services to which the Tribunal is not satisfied was accurate or correct given the Subclass 491 visa provides a pathway to permanent residency, and is not actually a permanent residency visa.   The MOC’s view as to what health care or community services may be required for a hypothetical person with the same condition at the same severity as Naomi, along with the calculated costs of those services, are findings by which the Tribunal is bound.

14. Therefore, if the Tribunal utilises the information given by the MOC in the cost breakdown and assesses Naomi against the correct period of stay (5 years) and only for the services to which she would be entitled (special education services) over that period, the total estimated cost would be $152,950, and therefore still well in excess of the $86,000 significant cost threshold.  At the hearing, the applicants did not contest the MOC’s findings and acknowledged that they understand that Naomi is not able to meet PIC 4005(1)(c).  However, Mrs Boniface indicated to the Tribunal that she intends to fight for her daughter’s, and her family’s, right to live and work in Australia, and requested the Tribunal refer her application to the Minister for intervention.  This is discussed below.

15. Accordingly, based on the opinion of the MOC, Naomi does not satisfy public interest criterion 4005(1)(c) and therefore Mrs Boniface, as the first named applicant, does not meet the requirements of cl 491.211(3). Therefore, the Tribunal must affirm the decision under review.

    Referral to the Minister for intervention

16. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s 351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

17. The applicants brought Mr Suresh Rajan to the hearing to assist them in advocating for support from the Tribunal to refer their matter to the Minister.  Mr Rajan is well known in the Australian disability sector as a community advocate. He is the Treasurer of People with Disability Australia, and he is a past President of the National Ethnic Disability Alliance as well as other advocacy groups.  Mr Rajan has assisted the applicants to prepare a direct application to the Minister for Immigration to personally intervene in this matter and, at the Tribunal’s request, has provided a copy of the application he will submit to the Minister on the family’s behalf.

18. The Tribunal has carefully considered Mr Rajan’s submissions and arguments.  The Tribunal notes that the first and fourth named applicants both work in sectors with critical skills shortages, they live in regional Queensland, and they are prepared to committing their lives to this community.  Mrs Boniface works in the aged care and disability sector while her husband works in heavy transport.  Both Naomi and her younger sister, Nathanie, were born in Queensland and have never lived in India.  Naomi is nearly 8 years old, and Nathanie recently turned 6.  Naomi is well integrated in her special school where she learns alongside other autistic children.  To uproot an autistic child from the only life she knows would likely cause trauma and psychological harm not just to Naomi but to her siblings and her parents.

19. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) and will refer the matter to the Department.

    DECISION

20. The Tribunal affirms the decision not to grant the applicants Skilled Work Regional (Provisional) (Class PS) visas.

    Mary Sheargold
    Member

    
    
    

    ATTACHMENT

    Migration Regulations 1994

    Schedule 4

    4005(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.