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

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).
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.
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.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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))?
Public interest criterion 4005(1)(a) and (b) require the applicant to…

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 Boniface (Migration)

Details

AGLC: Boniface (Migration) [2024] AATA 4010
Case: [2024] AATA 4010
Decision Date: 8 October 2024

CaseChat Overview and Summary

This matter concerned an appeal by a visa applicant against the decision to affirm the refusal of their Skilled Work Regional (Provisional) (Class PS) visa, Subclass 491. The core of the dispute revolved around whether the applicant met Public Interest Criterion (PIC) 4005, which requires applicants to be free from certain diseases or conditions that could pose a threat to public health or result in significant costs to the Australian community. The applicant's family included a three-year-old child assessed as having a moderate developmental delay and the first applicant identified as autistic. The decision was made by Mary Sheargold.

The legal issues before the Tribunal were whether the applicant and their family members were free from tuberculosis, free from diseases or conditions that posed a threat to public health or the Australian community, and free from diseases or conditions that would likely require significant health or community services, leading to substantial costs or prejudice to access for Australian citizens or permanent residents. The Tribunal also had to determine if a Medical Officer of the Commonwealth (MOC) opinion was required and, if so, whether it had been correctly obtained and applied.

The Tribunal reasoned that PIC 4005(1)(c) requires an assessment of whether a condition would likely necessitate health or community services, and if the provision of those services would result in significant cost or prejudice access for Australians. It noted that for certain temporary visas, specific health and community services are excluded from this consideration, but the visa subclass in question was not listed in the relevant legislative instrument. The Tribunal was required to seek a MOC opinion unless specific exceptions applied, and if an opinion was obtained, it was to be taken as correct, provided the MOC applied the correct statutory test. In this instance, the Tribunal considered the applicant's case and the ministerial guidelines relating to discretionary powers, and decided to refer the matter to the Department.

Ultimately, the Tribunal affirmed the decision not to grant the Skilled Work Regional (Provisional) (Class PS) visas.

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 decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE 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))? 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). 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. 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

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