Brar (Migration)

[2020] AATA 5487

Brar (Migration) [2020] AATA 5487 (14 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Ramanpreet Kaur Brar
Mr Sukhdeep Singh Brar

CASE NUMBER:  1808490

DIBP REFERENCE(S):  BCC2017/3177054

MEMBER:Kira Raif

DATE:14 October 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled Nominated (Permanent) visas.

Statement made on 14 October 2020 at 1:58pm

CATCHWORDS
MIGRATION – Skilled Nominated (Permanent) (Class SN) visa – Subclass 190 (Skilled – Nominated) – health criteria – MOC opinion – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.25A; Schedule 2, cl 190.216; Schedule 4, PIC 4005

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 Immigration on 7 March 2018 to refuse to grant the applicants Skilled Nominated (Permanent) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 1 September 2017. The delegate refused to grant the visas on the basis that the second named applicant did not satisfy cl.190.216 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4005 of Schedule 4 to the Regulations was not met.

3. The applicants appeared before the Tribunal on 14 October 2020 to give evidence and present arguments. The applicants were represented in relation to the review by their registered migration agent. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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

   Relevant law

5. 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, 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.

6. 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).

7. As the applicant in this case has applied for a permanent visa, the exclusion provision in PIC 4005(3) does not apply.

8. In determining whether a person meets PIC 4005(1)(a), (b) or (c) r.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: r.2.25A(3).

   Is the applicant free from the relevant diseases or conditions?

9. The applicants provided to the Tribunal a copy of the primary decision record. It indicates that the second named applicant, Mr Sukhdeep Singh Brar was required to undertake a health assessment and in December 2017 a MOC formed the view that he did not meet the health requirements. The delegate wrote to the applicants seeking their comments. The applicants did not respond to the delegate within the time allowed.

10. The Tribunal has formed the view that the MOC opinion is required. There is before the Tribunal a MOC opinion stating that the second named applicant does not meet the health criteria. The Tribunal offered the applicants an opportunity to obtain a further MOC opinion. In oral evidence the applicants confirmed that they did not wish to obtain another opinion or seek a review of the MOC opinion but wished the Tribunal to proceed on the basis of the existing MOC opinion.

11. 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.

12. The Tribunal has formed the view that the MOC opinion is valid and the applicants have not expressed any concerns in relation to the MOC opinion. Based on the opinion of the MOC, the second named applicant does not satisfy public interest criterion 4005(1)(c). The applicants do not meet cl. 190.216 and they cannot meet the secondary criteria for visa grant.

    Conclusion

13. As the second named applicant has not satisfied the requirements of PIC 4005, the Tribunal must affirm the decision under review.

    DECISION

14. The Tribunal affirms the decision not to grant the applicants Skilled Nominated (Permanent) visas.

    Kira Raif
    Senior Member