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

1. 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).

2. 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.

3. 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.

4. 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.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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 in this case the delegate found that the applicant did not satisfy PIC 4007 and thereby failed to meet sub-regulation 187.224(1) and regulation 187.224.

2. 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

3. 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.

4. 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.

5. 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

6. The Tribunal is satisfied, based upon the evidence, that the applicant’s educational qualifications together with his experience in the dairy industry over an extended period of time meets the criteria pertinent to this occupational group provided in ANZSCO 311111.

7. The applicant provided evidence that he has an income of $62,000 p.a. and his wife works in a local business and occasionally on the farm when additional support is required.

8. The Tribunal noted that the applicant has a Doctoral degree in Veterinary Medicine and enquired as to whether he had considered seeking an AQF assessment in Australia. He relied that with the hours he works, from 4.45 am to 5.00 pm, time does not permit him to undertake the required process to seek such a transition and the cost may be prohibitive, but he will consider this option in the future.

9. The applicant applies his skills in his management of the herd, which includes artificial insemination; hoof training; de-horning, and generally supervising the wellbeing and breeding programme for the herd.

10. The applicant currently rents his home and has savings of $4,000, after providing support for his family and the education of his two children, who are performing well at school. He stated his son is in Year 8 and is interested in studying Computer Engineering when he leaves school.

11. On 4 December 2014, the applicant was assessed by a Medical Officer of the Commonwealth (`MOC') as not satisfying sub-subparagraphs PIC 4007(1)(c)(ii)(A) and 4007(1)(c)(ii)(B) on the basis of advanced chronic renal disease.

12. On 10 March 2015, the applicant was advised of this adverse finding and provided with the opportunity to submit further information for consideration of a waiver of the health requirement; his submission including all supporting documents were received on 28 September 2015.

13. On 6 October 2015, the applicant was again assessed by a Medical Officer of the Commonwealth (`MOC') as not satisfying sub-subparagraphs PIC 4007(1)(c)(ii)(A) and 4007(1)(c)(ii)(B) on the basis of the same condition of advanced chronic renal disease.

14. With regard to sub-subparagraph PIC 4007 (1)(c)(ii)(B), the MOC assessed that granting a visa to the applicant was likely to prejudice the access of an Australian citizen or permanent resident to health care or community services.

15. A recommendation was sought from the Director of the Health Policy Section in accordance with current policy. After considering the information provided in the health waiver submission, Health Policy recommended that the health requirement not be waived in relation to the applicant.

Evidence of Alfred Health

1. The Manager of Private Practice at Alfred Health, where the applicant is being treated for his current condition, provided the following cost estimate for an eligible Medicare renal transplant:

Renal Transplantation Costs

Average Cost Per

Episode

Allied Health Services

$1,455

Anaesthetics

$5,223

Blood Products

$1,099

High Dependency

$2,388

Imaging

$2,062

Medical And Surgical Services

$7,297

Operating Theatre Services

$7,441

Other Services

$44

Pathology

$2,170

Pharmacy Drugs

$9,592

Pharmacy PBS

$4,773

Prostheses

$446

Specialised Procedure Services

$140

Ward Services

$7,949

Total

$52,078

1. In addition, the cost estimate for a non-eligible Medicare patient was given as $78,117.

Evidence of Witness: Mr Murray Pivac

1. The owner of the dairy farm that engages the applicant in employment, Mr Pivac, gave evidence to the Tribunal in support of the applicant’s application. He stated that the applicant had worked for him for 9 years and manages a herd of 650 cows. The farm contracts to Parmalat Milk and Southcoast Cheese.

1. He stated that the applicant applies his veterinary skills to the management of the herd and that ‘he is an integral part of what we do’. In this regard, the Tribunal was advised that the applicant is responsible for the breeding programme and the overall health of the herd. The owner said that he was stepping back from activities related to the herd management and that the applicant was assuming this role. He stated that the applicant would be difficult to replace, with his skills and willingness to work.

1. The witness stated that the applicant’s children had settled well into school in Australia and that he was prepared to support the applicant with his health.

2. The Tribunal noted that the applicant is highly regarded by the owner of the business and that he is integral part of the management in applying specific high end veterinary skills in herd management.

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

1. 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.

2. 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.

3. In determining whether a person meets PIC4007 (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).

4. 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.

5. As the applicant in this case has applied for a permanent visa, the exemption provision in PIC4007 (1B) does not apply.

6. On 20 December 2018, the applicant was assessed by a Medical Officer of the Commonwealth as not meeting the health requirement. The information below is provided, in conjunction with the Form 884 "Does Not Meet" opinion, for the purpose of considering a waiver of paragraph 4007(1)(c) in Schedule 4 to the Migration Regulations

7. Further, on the basis of the available medical evidence, the MOC advised that the applicant met the requirements of paragraphs 4007(1)(a) and 4007(1)(b) in Schedule 4 to the Migration Regulations. In this regard, the MOC was satisfied that the applicant is:

   a)free from tuberculosis; and

   b)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.

8. The MOC further estimated that the likely cost to the Australian community of services, as identified in the Form 884 to be $775,102.

9. The applicant provided evidence that he currently undertakes dialysis at home, in Shepparton, with the support of his family. This treatment commenced in 2014.

10. The report of the MOC on 20 December 2018, through Bupa Medical Visa Services, was as follows:

    “The applicant has been assessed against Public Interest Criterion (PIC) 4007 [see attached extract] for the period of a permanent stay in Australia.

    The applicant does not satisfy sub-subparagraphs PIC 4007(1)(c)00(A) and 4007(1)(c)(ii)(B) in Schedule 4 to the Migration Regulations.

    The applicant is a 40 year old person with:

    Severe chronic renal disease

    Form and severity of the applicant's condition: the applicant has severe chronic kidney disease in the context of crescentic IgA nephropathy. Peritoneal dialysis was commenced back in 2014. Provision of services to a hypothetical person in Australia with the same condition as the applicant and at the same severity: a hypothetical person in Australia with the same condition as the applicant, at the same severity, would be likely to require long term specialist health care services, including but not limited to renal replacement services (with progression to haemodialysis) and kidney transplant. I consider that the provision of health care services to the hypothetical person in the circumstances defined above would also be likely to result in a significant prejudice to access to the Australian community in the area of health care. This is because dialysis and renal transplantation based on advice from the Department of Health is currently in a service in short supply; that is, there are already insufficient resources available to meet current national demand and failure to obtain required access to this service would be likely to seriously disadvantage current Australian citizens and permanent residents. This condition is likely to be Permanent.

    I consider that a hypothetical person with this disease or condition, at the same severity as the applicant, would be likely to require health care or community services during the period specified above.

    These services would be likely to include:

    Medical services
    Surgical services
    Dialysis

    Organ transplants

    Provision of these health care and/or community services would be likely to result in a significant cost to the Australian community in the areas of health care and /or community services, and prejudice the access of an Australian citizen or permanent resident to health care or community services.

    In preparing this opinion, I have had regard to the information available to date concerning the applicant, including, but not limited to the panel physician examination of 12 November 2014 and reports from Dr Irene Ruderman (29 July 2014), Dr Scott Wilson (23 September 2015) and Dr P McClelland (16 September 2015).

    Medical Officer of the Commonwealth
    Position Number BUPA002

    A Medical Officer of the Commonwealth for the purposes of providing an opinion on whether prescribed health criteria under the Migration Regulations 1994 are met.” 

11. On the evidence before the Tribunal, a contemporary 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.

12. Accordingly, based on the opinion of the MOC, the applicant satisfies PIC 4007(1) (a) and (b) but does not satisfy (c).

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

1. 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).

2. 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. Departmental policy guidance on the exercise of this discretion is contained in the Procedures Advice Manual (‘PAM3’). Broadly speaking, these relate to: family links in Australia and the impact on family members; occupational skills of the applicant or family members; assets or factors that may mitigate the costs or prejudice to access to care or services involved; available support from family or community groups; potential contribution to Australia by the applicant or family members; the immigration history of the applicant; other compelling and compassionate circumstances including location of the applicant and family members; and any other relevant factors.

1. The applicant provided the Tribunal with evidence that he is currently a member of the BUPA Health Fund and has taken out the top cover. He stated he pays $200 per month for medication and has been under the treatment of a specialist at the Alfred Hospital Melbourne, where he has a visitation each three monthly period.

2. The applicant stated that BUPA will not cover 100% of the medical costs.

3. The Tribunal, pursuant to s359AA presented the applicant with the Form 884 prepared by the MOC and the report of 20 December 2018 and invited the applicant to comment after a brief adjournment was provided. Further, the Tribunal offered the applicant additional time, which was accepted and the adjournment was extended.

4. Upon resumption of the hearing, the applicant stated that the prognosis was that he will require a transplant and subject to his permanent residency status he would be eligible to go on the waiting list, however, he provided the Tribunal with a statutory declaration signed by his brother on 18 August 2016 stating his willingness to donate a kidney for his brother “anytime when needed”.

5. The Tribunal identified the cost estimate in the MOC report to the applicant and the applicant stated that – “If I get cover with health insurance, then BUPA can cover the hospital.”

6. The Tribunal requested the applicant to provide the Tribunal with an assessment by BUPA as to the level of costs that they would cover and that this information be furnished to the Tribunal by 15 February 2019. The feedback from Bupa on 19 February 2019 was that the applicant was “Eligible Subject to Conditions”. The information produced by Bupa was very generic and confirmed that hospitalisation was covered. [Tribunal Folio – 126]

7. The applicant gave evidence that he currently pays $18,000 in tax on his income of $62,000 and that his wife works part-time for 3-4 hours per day over six days, with an income of up to $500 per week, upon which she pays tax.

8. 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] FCA 118; (1999) 85 FCR 134 at [46]- [47], where the Full Court held:

   46 ... There are obviously broad judgments to be made in determining what amounts to "undue cost" and "undue prejudice". Reading together the criteria in Item4007 (1)(c)(i) and the criterion for waiver in4007 (2)(b)(i) it is apparent that the occasion for the exercise of the waiver will only arise where it is already established that the cost to Australia, if the visa is granted, is likely to be "significant". The Minister will therefore need to be satisfied that a likely "significant" cost will nevertheless not be "undue". In the former determination he or she is evidently to be bound by the opinion of a Medical Officer of the Commonwealth.
   47 The evaluative judgment whether the cost to the Australian community or prejudice to others, if the visa is granted, is "undue" may import consideration of compassionate or other circumstances. It may be to Australia's benefit in moral or other terms to admit a person even though it could be anticipated that such a person will make some significant call upon health and community services. There may be circumstances of a "compelling" character, not included in the "compassionate" category that mandate such an outcome. But over and above the consideration of the likelihood that cost or prejudice will be "undue" there is the discretionary element of the ministerial waiver. And within that discretion compassionate circumstances or the more widely expressed "compelling circumstances" may properly have a part to play.

9. The Tribunal is able to have regard to any guidance that may be available in relation to legislative provisions containing such terms, such as those given in Departmental guidelines, but it must not treat such guidance as determinative and must always have regard to the terms of the legislation and the individual circumstances of the case.

10. Departmental guidelines in relation to the PIC4007health waiver state[1]:

    “What does ‘undue’ mean
    Although ‘undue’ is not defined in migration law:

    the dictionary definition of undue is “unwarranted; excessive; too great” and
    the courts have indicated that a broad range of discretionary considerations can be taken into account in determining whether costs or prejudice to access are “undue”, which, in a given case, may include mitigation of costs or service, or consideration of compelling and compassionate circumstances.

    What to take into account
    Given the broad range of discretionary considerations that can be taken into account, the individual circumstances of the visa applicant need to be considered in coming to a conclusion about whether the granting of the visa would be unlikely to result in undue cost or undue prejudice to access.
    Each health waiver case must be considered on its merits – with all relevant factors taken into account, including any compelling and/or compassionate circumstances that warrant a waiver being exercised (for example, close family links to Australia and/or reasons why the family would find it difficult to return to their home country).
    When making a waiver decision, section 65 delegates should consider the following policy guidelines for the relevant type of visa being processed - as the nature of the individual circumstances involved are likely to vary depending on the type of visa that has been applied for (even though the same PIC applies). ...
    88.5 The role of the MOC
    A MOC opinion and the waiver costing advice must be taken into account when making a waiver decision. This includes the MOC’s advice as to the likely costs to the Australian community in the areas of health care and community services, and the extent of any prejudice to the access to health care or community services of an Australian citizen or permanent resident if the visa applicant were to be granted the visa. It is, however, the s65 delegate’s decision as to whether granting the visa would result in ‘undue’ costs or prejudice to access.

11. In relation to prejudice to access, the guidelines state:

    “Prejudice to access - factors afforded weight under policy
    If the MOC has identified the applicant is likely to require organ transplantation, consideration should be given by the delegate as to whether the organ could be provided through live donation (for example, kidney, liver, bone marrow) or if the donation would need to be from a deceased donor (for example, heart, lungs):

    live donation: consideration should be given to evidence that the applicant has a family member (preferably in Australia or migrating) who is willing to donate (directly or through paired kidney donation). Alternatively, advice from the treating specialist/doctor that it would be unlikely that the applicant would be placed on a transplant list can be considered.

    deceased donor: consideration would only be able to be given to a statement from the treating specialist/doctor that it would be unlikely that the application would be placed on a transplant list.

    In considering whether the granting of the visa to the applicant would be unlikely to result in 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, under policy, delegates should give significant weight to the following:

    ·the skills and qualifications and experience of all applicants, as appropriate - for example, the occupational skills, qualifications, English language ability, work history and/or future employment prospects of the main applicant and any adult family members

    ·whether the nominated occupation is one in demand (refer to the Skilled Shortage List)

    ·whether the family is already settled or proposes to settle in a remote, rural or regional area and

    ·the extent to which the visa applicant and/or their family may be able to mitigate potential costs/prejudice to access issues identified by a MOC when assessing the health waiver applicant against the health requirement

12. The Tribunal accepts that it must take into account the applicant’s individual circumstances in determining whether the likely costs of providing health services to the applicant to the Australian community are undue.

13. On the basis of the evidence provided, the Tribunal is satisfied that:

    (a)The applicant is a highly qualified Agricultural Technician, with a Doctoral degree in Veterinary Medicine and provides expert management of the health and well-being of a large dairy herd, with 650 animals. This includes specialised administration of artificial insemination in the breeding programme, which is an important contribution to Australian livestock development in a competitive world class market that includes export potential and revenue for the Australian economy;

    (b)The applicant works in an Australian rural industry where his skills are unique for the in-house role that he performs, particularly given the potential for the applicant to obtain AQF accreditation in Australia, where his skills could be applied at the upper threshold of rural husbandry support;

    (c)The applicant has demonstrated over an 11 year career in Australia and from the commendable support he has from his employer, that he is committed to his vocation and that he would be difficult to replace. In this regard, the Tribunal is cognisant of the evidence of the farm owner, who is seeking to step back and rely more heavily upon the applicant to support this vital enterprise in dairy production for the community. Further, the applicant has demonstrated a commitment to remain in rural Victoria and to apply his skills;

    (d)The applicant’s spouse is a university educated accountant whose skills are available to potentially benefit the business and rural community, in which they live. She is also working and paying taxes;

    (e)The applicant and his family have established a close connection with the Australian community and they have high aspirations for their children to succeed at the tertiary level of education. In this regard, the Tribunal accepts that the couple’s son intends to progress to study Computer Engineering at the tertiary level, which will significantly contribute to Australian business in the future;

    (f)The evidence provided by Alfred Health has costed a renal transplant at $78,117 (without Medicare healthcare support) and $52,078 where the applicant is Medicare eligible. On this basis the medium term tax contribution of the applicant and his spouse, together with a potential contribution from the applicant’s private health fund, would significantly ameliorate the cost of the immediate transplant medical service and contribute to the long term cost of medication and medical services;

    (g)The applicant provided evidence that his brother has declared a preparedness to donate a kidney, when this was deemed to be required. The fact that the applicant is capable of working normally and has routine dialysis at home, with family support, suggests that the applicant will continue to contribute professionally to his vocation pending more serious medically required support [Tribunal Folio – 129];

    (h) The employer of the applicant has committed to the Tribunal that the applicant will continue to be employed and provided with support.

14. The Tribunal accepts that the entire family is well settled in Australia, the parents are employed and the two children attend schools and participate in multiple extracurricular activities, and the Tribunal accepts it would cause a degree of hardship if the family were to leave Australia. The Tribunal also accepts that the family is making a significant contribution to the community through their involvement in various activities and there is strong Shepparton community support from the St Vincent De Paul and the local Catholic Church, where the family are well known and respected. For these reasons, the Tribunal is 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) may be waived subject to the applicant satisfying all other requirements for the visa.

15. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for the visa.

DECISION

1. 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.

Warren Stooke AM
Member

[1] PAM3 – Migration Regulations Sch4 - 4005- 4007 - The health PIC - Sch4/4005- 4007 - The health requirement -Health Waivers -The PIC 4007 Health Waiver (re-issued 14/10/2016).
[2] PAM3 – Migration Regulations Sch4 - 4005- 4007 - The health PIC - Sch4/4005- 4007 - The health requirement -Health Waivers - PIC 4007 waivers for certain skilled and business visas (re-issued 14/10/2016).

ATTACHMENT

Migration Regulations 1994

Schedule 4

1. (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.