Chikerema (Migration) - [2024] AATA 105

Chikerema (Migration) [2024] AATA 105 (23 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Micheal Chikerema
Ms Abigail Kudzai Chikerema
Ms Raisa Anotida Chikerema
Master Joseph Marrion Chikerema
REPRESENTATIVE:  Mr Munashe Rusamo
CASE NUMBER:  2103553
HOME AFFAIRS REFERENCE(S):          BCC2018/1637466
COUNTRY OF REFERENCE:                   Zimbabwe
MEMBER:Peter Emmerton
DATE:23 January 2024
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) visas.

Statement made on 23 January 2024 at 4:05pm
CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – waiver of health criteria – medical assessment for secondary applicant – undue prejudice to the access to health care – compassionate or compelling circumstances – impact on the applicant’s employer – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cls 186.224, 186.311; Schedule 4, Public Interest Criterion 4007; r 2.25
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 Home Affairs on 5 March 2021 to refuse to grant the applicants Employer Nomination (Permanent) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicants applied for the visas on 12 April 2018. The delegate refused to grant the visa as the first named applicant (now referred to as the applicant) did not satisfy cl 186.224 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.
The applicants appeared before the Tribunal on 23 January 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Mr David Calvert and Mr Johnny Dimov.
The applicants were represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has read and carefully considered all the evidence previously provided to the delegate and the Department.
The Tribunal has read and carefully considered all the evidence provided to it prior to the hearing as detailed below.
·Employment Reference Letter - Spoken Word Fellowship Inc 1 January 2024
·Employment Reference Letter - United Forklift and Access Solutions (undated)
·Paediatric Report - Dr Jan Valentine 23 January 2023
·Physiotherapist Report - Tahlia D'Opera 12 January 2024
·Letter of Support - Felicity June POULTER 6 January 2023
·Letter of Support – Dr Oliver CHIKUMBO 30 September 2023
·Letter of Support - Allison Veronica & Grant TRETHEWEY 9 November 2023
·Letter of Support - Kwesi SAGOE-CRENTSIL 11 November 2023
·Letter of Support - Daniel John WHITE 15 November 2023
·Letter of Support - Pardon MUCHANDINZWA 29 November 2023
·Letter of Support - Benoit BUKASA-MULWILA 14 December 2023

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 Chikerema (Migration)

Details

AGLC: Chikerema (Migration) [2024] AATA 105
Case: [2024] AATA 105
Decision Date: 23 January 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Mr. Micheal Chikerema, who sought an Employer Nomination (Permanent) visa (Subclass 186) under the Temporary Residence Transition stream. The primary dispute concerned whether the visa applicant and his daughter, Ms. Raisa Anotida Chikerema, met Public Interest Criterion (PIC) 4007, which relates to health requirements for visa applicants.

The legal issue before the Tribunal was whether the applicant, Mr. Chikerema, satisfied PIC 4007, specifically sub-subparagraph PIC 4007(1)(c)(ii)(A). This criterion requires that the provision of health care or community services for a condition would not be likely to prejudice the access of an Australian citizen or permanent resident to such services. The applicant's daughter had been assessed by a Medical Officer of the Commonwealth as not satisfying this criterion due to severe cerebral palsy, which meant the applicant, as the primary visa holder, also failed to meet the visa requirements under sub-regulation 186.224(1).

The Tribunal affirmed the delegate's decision not to grant the visa. It reasoned that the applicant's daughter's medical condition meant that PIC 4007 was not satisfied. While PIC 4007(2) allows for a waiver of the health criteria under certain circumstances, the Tribunal found that the conditions for such a waiver were not met in this instance. Specifically, the Tribunal noted that the secondary applicants were not members of the family unit of a person who had been granted a Subclass 186 visa based on satisfying the primary criteria, thus clause 186.311 was not satisfied.

Consequently, the Tribunal affirmed the decision not to grant the Employer Nomination (Permanent) visas to the applicants.

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 has read and carefully considered all the evidence previously provided to the delegate and the Department. The Tribunal has read and carefully considered all the evidence provided to it prior to the hearing as detailed below.·Employment Reference Letter - Spoken Word Fellowship Inc 1 January 2024·Employment Reference Letter - United Forklift and Access Solutions (undated)·Paediatric Report - Dr Jan Valentine 23 January 2023·Physiotherapist Report - Tahlia D'Opera 12 January 2024·Letter of Support - Felicity June POULTER 6 January 2023·Letter of Support – Dr Oliver CHIKUMBO 30 September 2023·Letter of Support - Allison Veronica & Grant TRETHEWEY 9 November 2023·Letter of Support - Kwesi SAGOE-CRENTSIL 11 November 2023·Letter of Support - Daniel John WHITE 15 November 2023·Letter of Support - Pardon MUCHANDINZWA 29 November 2023·Letter of Support - Benoit BUKASA-MULWILA 14 December 2023·Letter of Support - Gavin Matthews 14 January 24·Letter of Support - Rebecca Healy (undated)·Letter of Support - Spoken Word Fellowship 13 January 2024·Notice of Assessment - Micheal CHIKEREMA 2021 – 2022·Income Statement - Micheal CHIKEREMA 2022 – 2023·Income Statement - Micheal CHIKEREMA 2023 – 2024·BankWest Bank Account - Micheal CHIKEREMA 13 January 2024·Joint CommBank Savings Account - Mr and Ms CHIKEREMA 1 July 2023 – 31 December 23·Payslip - Micheal CHIKEREMA 13 December 2023·Payslip - Micheal CHIKEREMA 27 December 2023·Mercedes Car Valuation 17 January 2024·Mercedes Motor Vehicle Certiﬁcate 15 January 2024·Superannuation Account - Micheal Chikerema 12 January 2024·Toyota Car Valuation 17 January 2024·Toyota Motor Vehicle Certiﬁcate 15 January 2024·2019 Health Waiver Application - Micheal CHIKEREMA 12 July 2019·Birth Certiﬁcate - Jesse Chikerema 6 December 2023·Personal Statement - Abigail Chikerema 16 January 24·Personal Statement - Micheal Chikerema 16 January 24 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 was refused on the grounds Mr Micheal Chikerema’s daughter, Ms Raisa Anotida Chikerema was assessed by a Medical Officer of the Commonwealth (‘MOC’) as not satisfying sub-subparagraph PIC 4007(1)(c)(ii)(A) on the basis of being a person with a severe cerebral palsy secondary to hypoxic ischemic encephalophy at birth. Since at the time of decision Ms Raisa Anotida Chikerema does not satisfy Public Interest Criterion 4007. Mr Micheal Chikerema, the applicant therefore fails to satisfy the requirements of sub-regulation 186.224(1).Is the applicant free from the relevant diseases or conditions (PIC 4007(1)(a), (b), (c))?

Decision

Reasons for decision

As the 3 forementioned secondary applicants are not members of the family unit of a person who holds a subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa, clause 186.311 is not satisfied.DECISION The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) visas.Peter EmmertonMemberATTACHMENTMigration 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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