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

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).
The visa applicant applied for the visa on 22 June 2020.
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.
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.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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.
Clause 187.224 of Schedule 2 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 Cabuños (Migration)

Details

AGLC: Cabuños (Migration) [2024] AATA 214
Case: [2024] AATA 214
Decision Date: 5 February 2024

CaseChat Overview and Summary

This matter concerned an application for a Regional Employer Nomination (Permanent) visa (subclass 187) by a citizen of the Philippines. The applicant's son, Gabriel, who was a non-migrating member of his family unit, had been diagnosed with moderate autism spectrum disorder. The central dispute revolved around whether the applicant, and by extension his son, met the health criteria stipulated by Public Interest Criterion (PIC) 4007 of the Migration Regulations 1994. The Administrative Appeals Tribunal was tasked with reviewing the delegate's decision to refuse the visa.

The primary legal issue before the Tribunal was to determine if the applicant satisfied PIC 4007, specifically subclause (1)(c), which requires an applicant to be free from a disease or condition that would likely require health care or community services, and if the provision of such services would result in significant cost to the Australian community or prejudice access for citizens or permanent residents. The Tribunal also considered the applicability of the waiver provision under subclause (2) of PIC 4007, which allows for the waiver of requirements if granting the visa would be unlikely to result in undue cost or prejudice.

The Tribunal reasoned that, in accordance with regulation 2.25A, it was required to seek and take as correct the opinion of a Medical Officer of the Commonwealth (MOC) when assessing PIC 4007 for a permanent visa application where there was information suggesting a potential failure to meet the criterion. The applicant's son's condition meant that the MOC's opinion was determinative. As the applicant had not satisfied the requirements of PIC 4007, and the waiver provision was not applicable in this instance, the Tribunal concluded that the delegate's decision to refuse the visa should be affirmed.

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

Decision

Reasons for decision

As the applicant has not satisfied the requirements of PIC 4007, the decision under review must be affirmed.DECISION The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) visa.P. MaishmanMemberATTACHMENTMigration Regulations 1994Schedule 44007(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.

Ratio Decidendi

Legal Principle Established

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