Calinao (Migration) - [2019] AATA 1896

Calinao (Migration) [2019] AATA 1896 (22 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Arisson Salazar Calinao
Mrs Lovelyn Amul Calinao
Mr Laurence Andrei Calinao
Ms Margrethe Alexandrine Calinao
CASE NUMBER:  1601621
DIBP REFERENCE(S): BCC2014/2294778 BCC2016/660385 BCC2016/660388 BCC2016/660395 BCC2016/660396
COUNTRY OF REFERENCE:                  Philippines
MEMBER:Warren Stooke AM
DATE:22 February 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for Regional Employer Nomination (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 - Regional Sponsored Migration Scheme visa:
·PIC 4007(2)(b) for the purposes of cl.187.224 of Schedule 2 to the Regulations.

Statement made on 22 February 2019 at 10:17am
CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) – Subclass 187 Regional Sponsored Migration Scheme – medical assessment – cost of providing health services – community support – granting of visa unlikely to result in undue cost or undue prejudice – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), Schedule 2 cl 187.224, Schedule 4 Public Interest Criterion (PIC) 4005-4007, r 2.25A(3)

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 decisions made by a delegate of the Minister for Immigration on 22 January 2016 to refuse to grant the applicants Regional Employer Nomination (Permanent) visas under s.65 of the Migration Act 1958 (the Act).
The visa applicants applied for the visas on 12 September 2014. The delegate refused to grant the visa as the first named applicant (now referred to as the applicant) did not satisfy cl.187.224 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4007 of Schedule 4 to the Regulations was not met.
The applicants appeared before the Tribunal on 30 January 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Murray Pivac, the owner of the dairy farm where the applicant is engaged. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.
The applicant advised the Tribunal that he had read and understood the delegate’s decision. He explained that the visa was refused because the Medical Doctor of the Commonwealth had assessed him as not satisfying the health criteria, including the significant cost and prejudice. The applicant expressed the view that he did not think the statement of significant cost was reasonable, as it was way too high.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

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…

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.

Keep reading for free

Create a free CaseChat account to read Calinao (Migration) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] AATA 1896
Decision Date: 22 February 2019

CaseChat Overview and Summary

The applicant, Mr. Calinao, sought review of a decision by the delegate of the Minister for Immigration and Border Protection to refuse to grant him a Subclass 187 Regional Sponsored Migration Scheme visa. The refusal was based on the applicant not satisfying the health requirement under paragraph PIC 4007(1)(c) of the Migration Regulations 1994, due to severe chronic renal disease. The delegate declined to waive these requirements, concluding that doing so would likely result in undue cost to the Australian community and unduly prejudice the access of Australian citizens or permanent residents to health care or community services.

The primary legal issue before the court was whether the delegate's decision not to waive the health requirement under PIC 4007(1)(c) was affected by jurisdictional error. This involved determining if the delegate properly considered the relevant factors, including the potential undue cost to the community and prejudice to access to services, when making the waiver decision. The court was also required to assess whether the delegate's reasoning for refusing the waiver was supported by the evidence and the applicable legal principles.

The court found that the delegate's decision-making process lacked sufficient particularity regarding the assessment of undue cost and prejudice. While the delegate stated a conclusion, the reasoning did not adequately explain how the applicant's specific circumstances, including his employment and potential contributions, were weighed against the potential costs and prejudices. The court noted that a proper assessment requires a more detailed analysis of the evidence to justify the conclusion that granting the visa would likely result in undue cost or prejudice. Consequently, the court determined that the delegate's decision contained jurisdictional error.

The court ordered that the decision under review be remitted to the delegate for reconsideration according to law. This means the delegate will need to re-examine the application and the waiver decision, providing a more detailed and reasoned explanation for their findings on the issues of undue cost and prejudice to community services.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The applicant in this case was assessed by a Medical Officer of the Commonwealth (MOC) as not satisfying sub-subparagraphs PIC4007(1)(c)(ii)(A) and4007(1)(c)(ii)(B), on the basis of severe chronic renal disease. The delegate decided not to waive the requirements of paragraph PIC4007 (1)(c), stating: “.. I have considered whether to waive the requirements of paragraph PIC 4007(1)(c). After taking into consideration the information held on file relevant to the health waiver as well as the recommendation made by Health Policy, I have decided not to waive the requirements of paragraph PIC 4007(1)(c). I am of the view that exercising a waiver in this case would be likely to result in undue cost to the Australian community and unduly prejudice the access of an Australian citizen or permanent resident to health care or community services.”Background The applicant is a forty year old from the Philippines, who holds a Doctoral degree in Veterinary Medicine from De La Salle Araneta University in the Philippines; and the applicant’s wife has a Bachelor of Science degree in Accountancy from the University of Batangas in the Philippines. The couple have two children, with the older son in Grade 8 and the younger daughter in Grade 5. The applicant has worked internationally in the United Kingdom in stock management and came to Australia in 2011, where he initially worked in Eucha, Victoria, as a Senior Dairy Stockperson. After a period of 2 years, the applicant subsequently joined the Pivac family as the Manager of a dairy herd that has 650 milking cows. The herd comprises the Holstein breed and the applicant has worked for the Pivac family for the last 8 years. In this case, the visa applicant is engaged in an employment occupation that is specified in the relevant Legislative Instrument in the listed position of Agricultural Technician - ANZSCO 311111. UNIT GROUP 3111 AGRICULTURAL TECHNICIANS AGRICULTURAL TECHNICIANS perform tests and experiments, and provide technical support to assist Agricultural Scientists in areas such as research, production, servicing and marketing. Indicative Skill Level:Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below. In Australia: AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)In New Zealand: NZ Register Diploma (ANZSCO Skill Level 2)At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification. Tasks Include: ·examining topographical, physical and soil characteristics of farmland to determine its most effective use and identify nutrient deficiencies ·assisting in developing new methods of planting, fertilising, harvesting and processing crops to achieve optimum land usage ·identifying pathogenic micro-organisms and insects, parasites, fungi and weeds harmful to crops and livestock, and assisting in devising methods of control ·analysing produce to set and maintain standards of quality ·inspecting livestock to gauge the effectiveness of feed formulae ·assisting in controlled breeding experiments to develop improved crop and livestock strains ·arranging the supply of drugs, vaccines and other chemicals to Farmers and Farm Managers, and giving advice on their use ·collecting and collating data for research ·planning slaughtering, harvesting and other aspects of production processes ·may advise producers on farming techniques and management

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.