Cabuños (Migration)

[2024] AATA 214

Cabuños  (Migration) [2024] AATA 214 (5 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Carlito Jr Cabuños

CASE NUMBER:  2315843

HOME AFFAIRS REFERENCE(S):          BCC2020/1781312

COUNTRY OF REFERENCE:                   Philippines

MEMBER:P. Maishman

DATE:5 February 2024

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicant a  Regional Employer Nomination (Permanent) visa.

Statement made on 05 February 2024 at 4:02pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class ) visa – Subclass 187 (Regional Sponsored Migration Scheme) – health criteria – condition likely to require health care or community services – non-migrating member of family unit son with moderate autism spectrum disorder – opinion of medical officer of commonwealth taken to be correct – discretion to waive requirements if unlikely to result in undue cost to community or undue prejudice to citizen or permanent resident – son and other family members living in home country, but prospect of better life in Australia – skills gap and labour shortages in work sector – supporting statements from employer and parish priest – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 2.25A(1)(b), (3), Schedule 2, cl 187.224(3), Schedule 4, criterion 4007(1)(c)(ii)(A), (2)(b)

CASES

Bui v MIMA (1999) 85 FCR 134

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 a decision made by a delegate of the Minister for Home Affairs on 28 September 2023 to refuse to grant the applicant a Regional Employer Nomination (Permanent) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 22 June 2020.

3. The delegate refused to grant the visa as the applicant did not satisfy cl 187.224(3) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4007 of Schedule 4 to the Regulations was not met in relation to his son Gabriel, a non-migrating member of his family unit.

4. The applicant appeared before the Tribunal on 24 January 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Jason Carmichael, on behalf of the applicant’s employer, Nutrien.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The Tribunal had before it a copy of the Department’s file. The applicant was the holder of a subclass 457 visa prior to applying for the visa subject of this application. The applicant is a citizen of the Philippines and recorded that his wife and three children are non-migrating members of his family unit.

7. The applicant gave the Tribunal a copy of the delegate’s decision record. The applicant gave the Tribunal a written submission dated 13 January 2024, details of his son’s school progress and a further written statement on 15 January 2024. 

8. Clause 187.224 of Schedule 2 to the Regulations requires that the primary visa applicant and each member of the family unit satisfies PIC 4007. Public Interest Criterion 4007, as it applies to this case, is extracted in the attachment to this decision. The requirement applies to non-migrating members of the applicant’s family unit unless it would be unreasonable to require that member to undergo a medical assessment.

9. The issue in this review is whether the visa applicant meets Public Interest Criterion (PIC) 4007 as required by the criteria for the grant of the visa. Public Interest Criterion 4007, 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. This last requirement may be waived in certain circumstances. The applicant’s son Gabriel is now 13 years old and has moderate autism spectrum disorder.  

   Is the applicant free from the relevant diseases or conditions (PIC 4007(1)(a), (b), (c))?

10. Clauses 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.

11. Clause 4007(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.

12. For specified temporary visas, certain specified health care and community services are excluded from this consideration: PIC 4007(1B). The requirement may also be waived in certain circumstances.

13. As the applicant in this case has applied for a permanent visa, the exemption provision in PIC 4007(1B) does not apply.

14. In determining whether a person meets PIC 4007(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?

15. The visa application is for a permanent visa. Relevantly, legislative instrument IMMI 13/161 specifies Philippines in Schedule A for the purposes of r.2.25A(1)(b).

16. 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.

17. On 30 May 2023 a MOC provided the opinion that Gabriel Anthony Cabunos (Gabriel) did not satisfy PIC 4007(1)(c)(ii)(A) in Schedule 4 of the Regulations as the provision of health care or community services would be likely to result in a significant cost to the Australian community in the areas of health care or community services.  

18. The MOC opinion was that Gabriel, a 12 year old person with moderate autism spectrum disorder, would require assistance with activities for daily living and is likely to require long-term disability support services including special education and financial services. The condition is likely to be permanent, and the provision of the required Special Education Services and Commonwealth Disability Services would likely result in a significant cost to the Australian community.

19. The visa application is for a permanent residency visa therefore the Tribunal is satisfied that the MOC has considered the correct timeframe as set out in PIC 4007(1A) and that the MOC opinion contains all the advice required regarding the likely costs for care and treatment for a hypothetical person with the same condition as Gabriel.  Therefore, the Tribunal is satisfied that this MOC opinion is valid and can be relied upon by the Tribunal in making its findings.

20. Accordingly, based on the opinion of the MOC, the applicant Gabriel does not satisfy PIC 4007(1)(c).

    Should the requirements of PIC4007(1)(c) be waived?

21. The requirement in PIC 4007(1)(c) to be free of a disease or condition that would impact on health or community services, may be waived if among other things, the decision maker is satisfied that 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 health care or community services of an Australian citizen or permanent resident: 4007(2).

22. The evaluative 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 the ministerial waiver. And within that discretion, compassionate circumstances or compelling circumstances may be relevant: Bui at 47.

23. Department policy provides guidance on factors that may be relevant to this, including: the need for, and availability of, a live organ donor; an ability to access private health treatment; close family, social, emotional and community ties to Australia; the impact on any Australian citizen minor children; occupational skills of the applicant or family members; and the potential contribution to Australia by the applicant or family members.

24. The MOC identified the costs associated with a hypothetical person with Gabriel’s condition at the same severity would be $743,700, comprising of Commonwealth Disability Services totalling $560,700 and Special Education Services of $183,000.

25. The Tribunal considered the documents received given to the Department by the the applicant. The applicant’s then registered migration agent (RMA) provided an undated letter around 22 August 2023 outlining that the applicant was employed in Australia and his wife and three children reside in Philippines. The applicant’s wife is the primary carer for Gabriel. The RMA submits the applicant’s wife and children are well supported by extended family. They own some property including their residence. They are reasonably comfortable with their arrangements in Philippines but require the security of the applicant’s Australian salary of around $70,000.

26. The applicant told the Tribunal Gabriel attends school in the Philippines on two days each week. He receives special assistance from a psychologist and a physical therapist sporadically between 3 to 6 monthly. His treatment is inconsistent but he continues to make progress and has reached Grade 3 level. Gabriel now engages with his siblings where before he would not participate in play. The applicant told the Tribunal people in Philippines are judgemental when it comes to dealing with disabled people. He has observed in Australia disabled people mingle with the broader community and appear to be accepted. Gabriel would also benefit from the services and supports he could receive in Australia. The applicant said the costs of Gabriel’s support would be mitigated because his wife could work in Australia and their combined income would meet some costs. Gabriel’s siblings would also work and provide financial assistance when they finished their schooling.       

27. Mr Jason Carmichael, Maintenance Manager, of Nutrien Water provided a letter of support dated 9 August 2023 and oral evidence at the hearing. Mr Carmichael confirms the applicant has been employed with his company since 2016 and earns approximately $70,000 per annum. Mr Carmichael identified that there is a skills gap and labour shortages in the landscaping industry. Mr Carmichael described the applicant’s diligence and commitment to his work and that he is well liked and respected by his co-workers and by his corporate customers. Mr Carmichael described the difficulties of integrating a new person into the business if the applicant’s application is unsuccessful.      

28. The estimated costs identified by the MOC are substantial. There is nothing to suggest that the estimated costs are overinflated or unlikely to be incurred. In Australia, significant and expensive education and disability services would be provided to a child with Gabriel’s condition.   

29. The applicant receives a modest salary and the Tribunal accepts his employment is stable and ongoing. The Tribunal observes that Gabriel’s siblings are 6 and 8 years old and their financial input to the family would be a significant time in the future. The applicant said his wife had done some hotel work in the Philippines but currently cared for the children on a full time basis. The Tribunal is not persuaded that the costs of the services Gabriel would require would be sufficiently met by the potential income his family after general living costs are met.

30. The applicant’s wife and children have not travelled to Australia and remain in the Philippines and the applicant does not have significant family ties in Australia. Gabriel’s family have some support from their extended family in the Philippines, which would not be available in Australia.

31. The Tribunal notes the applicant’s Parish Priest observes the applicant to be actives in the Church community and involved in helping and caring for people. The Tribunal accepts that the applicant is highly regard by his employer and clients and in that regard acknowledge the applicant has established ties to the community in Australia.       

32. The Tribunal acknowledges the application lists the applicant’s family as non-migrating members of the family unit and the applicant has indicated he is prepared to remain alone in Australia. However it is clear from the applicant’s evidence that he believes he and his family would live a better life in Australia, a situation which if it occurred would impose the costs of Gabriel’s care on the Australian community.

33. The Tribunal accepts the applicant living and working for many years in Australia without the benefit of being able to reside together with his family gives rise to compassionate circumstances, however these circumstances are common to migrants working in Australia. The Tribunal is unable to find these circumstances to be so compelling such as to waive the requirement.   

34. The Tribunal is unable to find that the applicant’s circumstances are such that they justify the likely costs of Gabriel’s care being met by the Australian community.

35. For these reasons, the Tribunal is not satisfied that the granting of the visa would be unlikely to result in undue cost or undue prejudice within the terms of PIC4007(2)(b). Therefore PIC 4007(1)(c) cannot be waived.

36. As the applicant has not satisfied the requirements of PIC 4007, the decision under review must be affirmed.

    DECISION

37. The Tribunal affirms the decision not to grant the applicant a  Regional Employer Nomination (Permanent) visa.

    P. Maishman

    
    

    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    Schedule 4

    4007(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)      subject to subclause (2) — 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 (1A); 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.

    (1A)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.

    (1B)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 (1A)(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.

    (2)The Minister may waive the requirements of paragraph (1)(c) if.

    (a)     the applicant satisfies all other criteria for the grant of the visa applied for; and

    (b)     the Minister is satisfied that the granting of the visa would be unlikely to result in:

    (i)undue cost to the Australian community; or

    (ii)undue prejudice to the access to health care or community services of an Australian citizen or permanent resident.