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

1. 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).

2. 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.

3. 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.

4. The applicants were represented in relation to the review.

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 has read and carefully considered all the evidence previously provided to the delegate and the Department.

7. 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

8. 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.

9. 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))?

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. The Tribunal is satisfied that the primary and secondary applicants are 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. Therefore, they all meet the requirements of PIC 4007(1)(a) and (b

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. 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.

16. The Tribunal is satisfied the MOC has identified the medical condition to which the public interest criterion has been applied.  The MOC has identified the form or level of the condition suffered by the applicant. The MOC has applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition.

17. On 3 July 2018 the MOC provided an opinion stating that the applicant does not satisfy sub-paragraph PIC 4007(1)(c)(ii)(A) in schedule 4 to the Migration Regulations. A breakdown of the likely cost the Australian Community was provided which was AUD $3,472,00 for the relevant period. They also stated that this would be unlikely to prejudice access of an Australian citizen or permanent resident to health care or community services.

18. On 23 July 2019 a second MOC opinion was produced stating that the applicant does not satisfy sub-paragraph PIC 4007(1)(c)(ii)(A) in schedule 4 to the Migration Regulations. A breakdown of the likely cost the Australian Community was provided which stated a cost of AUD $1,054,000 for the relevant period. It also stated that this would be unlikely to prejudice access of an Australian citizen or permanent resident to health care or community services.

19. On 16 April 2020 a third MOC Report was produced as a consequence to health policy changes introduced on 1 April 2020. A breakdown of the likely cost the Australian Community was provided which was AUD $1,261,000 for the relevant period. They also stated that this would be unlikely to prejudice access of an Australian citizen or permanent resident to health care or community services.

20. On 7 September 2023 the Tribunal invited the applicant to obtain a new MOC opinion as the previous opinions were no longer current.

21. On 11 December 2023 the MOC provided the fourth MOC opinion. They stated the applicant has been assessed against Public Interest Criterion (PIC) 4007 for the period of a permanent stay in Australia. The applicant does not satisfy sub-subparagraph PIC 4007(1)(c)(ii)(A) in Schedule 4 to the Migration Regulations.

22. They further stated the following. …’Form and severity of the applicant's condition: the applicant has a severe form of cerebral palsy secondary to hypoxic ischemic encephalopathy at birth as evidenced by microcephaly, spasticity and dyskinesia movements, bilateral dislocated hips, wheelchair-bound, unable to communicate verbally, requires enteral feeding (previously nasogastric tube, currently PEG tube) and associated medical diagnoses with severe global developmental delay and epilepsy. The applicant requires early intervention and special education services, ongoing treatment from a multidisciplinary team, a carer for activities of daily living and is likely to require long-term disability support services. For the purpose of a RMOC and in line with PIG 4007(1A)(a), the applicant was assessed as a 3-year-old person to reflect their age at the time of the visa application. Provision of services to a hypothetical person in Australia with the same condition as the applicant and at the same severity: a hypothetical personin Australia with the same condition as the applicant, at the same severity, would be likely to require long term disability support services including but not limited to: special education and commonwealth disability support services. 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:

    Special education services

    Commonwealth disability services

    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.’…

Estimated total cost

Breakdown as follows:

$2,049,550.00

Special education services - $63,970.00 x 7.0 Years

Age 7- 13 inclusive, state-funded special education funding level 6; Cost estimate based on Disability Services Notes for Guidance May 2023, including but not limited to scenario 6.

$447,790.00

Commonwealth disability services - $29,720.00 x 8.0 Years

Carer payments (2 years waiting period); Cost estimate based on Disability Services Notes for Guidance May 2023, including but not limited to scenario 6.

$237,760.00

Commonwealth disability services - $128,000.00 x 3.0 Years

Age 4-6; severe cerebral palsy; costed as per amended (weighted) mean NDIS budgets based on Participation Data costing via the NDIS dated Sep 2023.

$384,000.00

Commonwealth disability services - $140,000.00 x 7.0 Years

Age 7-13; severe cerebral palsy; costed as per amended (weighted) mean NDIS budgets based on Participation Data costing via the NDIS dated Sep 2023.

$980,000.00

‘This costing is calculated on the basis of the applicant's specific condition, and guided by the information contained within the Department of Home Affairs' Notes for Guidance.

A visa applicant cannot be found to satisfy the sub paragraph referred to above if they have a disease or condition that is likely to:

•result in a significant cost to the Australian community in the areas of health care or community services.’

1. The Tribunal notes that as with the 3 previous opinions, it was stated that this would be unlikely to prejudice access of an Australian citizen or permanent resident to health care or community services.

2. All the information provided to the Department by the applicants was assessed for consideration of a waiver of the health requirement. The delegate stated they considered whether to waive the requirements of paragraph PIC 4007(1)(c), after considering all relevant information held on file in relation to the health waiver.  They subsequently decided not to waive the requirements of paragraph PIC 4007(1)(c). They stated exercising a waiver in this case would be likely to result in a significant, undue cost to the Australian community in the areas of health care and/or community services.

3. They went on to state, ‘Since at the time of decision Miss Chikerema does not satisfy Public Interest Criterion 4007, Mr Chikerema therefore fails to satisfy the requirements of sub-regulation 186.224(2).

   Consequently, Mr Chikerema fails to satisfy the requirements of Regulation 186.224.’

4. The Tribunal has carefully considered the information provided in the MOC Report which indicates a considerable cost to the Australian community associated with appropriately supporting the secondary applicant Ms Raisa Anotida Chikerema. It accepts the MOC Report as correct. The MOC is required to consider the costs to the Australian community and whilst the Tribunal acknowledges that this is in some part undertaken by the parents of the secondar applicant at this time, it is reasonable to assume considerable costs are likely to be incurred. The Tribunal again notes that some of the medical conditions under consideration have shown some minor improvement however and it has considered the medical reports which indicate this fact. This further corroborated at the hearing. However, this condition is viewed by the MOC as a lifelong condition. The Tribunal further observes that there is minimal divergence between the 4 MOC Reports which have taken place over approximately 5 years.

5. It has also considered the written evidence provided in support of the primary applicant’s assertions regarding he and his wife’s ability to support the secondary applicant. The provision of medical and health insurance cover, the evidence to show financial capacity to support the secondary applicant because of the primary applicant’s income and his wife’s capacity to be present and act as their daughter’s carer, as she does not work and has undertaken relevant study. It is noted that there are some financial resources in reserve as demonstrated by bank accounts. The Tribunal notes the obvious considerable level of support undertaken by both parents. They are clearly dedicated to their family and support their daughter and her special needs at a very substantial level.

6. The primary applicant spoke to these issues during the hearing. The Tribunal accepts his belief that he and his family will continue to care for the secondary applicant. He also stated that she has consistently exceeded the expected limitations imposed by her conditions. However, it is clear from the MOC opinion that a considerable burden will likely fall on the Australian community in the form of substantial service provision over the long term. It is noted once again by the Tribunal that this condition is not transient. It is not possible to predetermine the future financial or physical capacity of the parent’s and their ongoing ability to provide appropriate care. Nor is it possible to determine the length of time support will be required although sadly it is statistically likely that a child with the multiple conditions outlined, regardless of the apparent exemplary support provided, is facing a potentially shortened life from the average person.

7. As previously stated, the Tribunal is satisfied the MOC has identified the medical condition to which the public interest criterion has been applied.  The MOC has identified the form or level of the condition suffered by the applicant. The MOC has applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition. The tribunal accepts the MOC has assessed against the appropriate time-period.

8. The Tribunal notes the following statement made by the primary visa applicant’s representative in their submission to the Tribunal dated 19 January 2024.

9. ‘Mr Chikerema concedes that Raisa fails to meet the health requirement. Therefore, this submission will only address the second issue and provide reasons why the health requirement ought to be waived in the present circumstances.’

10. Accordingly, based on the opinion of the MOC and the applicant’s submission, the Tribunal determines the applicant does not satisfy PIC 4007(1)(c).

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

11. 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).

12. 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. 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.

1. The Tribunal is satisfied that the granting of the visa would be unlikely to result in ‘undue prejudice’ to the access to health care or community services of an Australian citizen or permanent resident: 4007(2) as is stated in the MOC Reports. This was acknowledged at the hearing.

2. As already stated, the Tribunal has also considered the written evidence provided in support of the primary applicant’s ability in conjunction with his wife to support the secondary applicant, the provision of medical and health insurance cover, the evidence to show financial capacity to support the secondary applicant because of the primary applicant’s income.  In addition, his wife’s capacity to be present and act as a carer as she does not work and has undertaken study to assist in her carer role.

3. As previously stated, the primary applicant spoke to these issues during the hearing. The Tribunal accepts his belief that he and his family will continue to care for the secondary applicant. However, it is clear from the MOC opinion that a considerable ongoing burden will likely fall on the Australian community in the form of substantial service provision coupled with sophisticated medical support and associated medications over the long term. These services are not privately paid for by the applicants. The Tribunal has carefully considered the medical opinions presented which demonstrate the secondary applicant is unable to undertake daily tasks without very significant assistance whilst acknowledging some minor improvements over time.

4. The Tribunal notes the current MOC Opinion which states the Tax paid in 2022-2023 FY as $21,384 which it extrapolates for the relevant 10-year period as $213,840. The MOC’s costing over the same 10-year period equates to $2,049,550. The Tribunal notes the tax paid in the 3 previous years but also notes the MOC costings don’t include that period. It is reasonable to accept the taxation paid by Mr Chikerema will likely increase at least at the rate of inflation/CPI, it is equally reasonable to assume the care costings are likely do the same. The Tribunal was provided with corroborated evidence that in addition to Mr Chikerema’s approximately $85,000 wage plus the superannuation guarantee, he is now receiving $60,000 per annum plus the superannuation guarantee from his Church responsibility as a Pastor.

5. It must also be noted that because Ms Abigail Kudzai Chikerema is Raiza’s primary care giver, her capacity to gain employment and contribute financially should reasonably be assumed to be beyond the current reality. The Tribunal acknowledges and applauds Ms Abigail Kudzai Chikerema for her enormous efforts and the way in which she takes care of her 3 children whilst assisting her husband in his pastoral endeavours.

6. The Tribunal has considered the submissions made by the primary applicant’s employer and evidence of accolades received by the primary applicant from his co-workers. It acknowledges his performance is highly regarded by his employer, his work colleagues and the business’s client base. It received verbal evidence from his employer during the hearing which supported the written statements. It concurs losing the applicant from their employ would likely have a negative impact upon their clients and business. It also agrees that the loss of a skilled person in the applicant’s in demand field of endeavour in Australia, is undesirable. Automotive Electrician (ANZSCO: 321111) are listed on the MLTSSL and on the National Skills Commissions Skills Priority List as an immediate and future need in Australia’s labour market.

7. It is observed that the applicant works within a substantial team but none the less it is accepted that to lose his many years of experience would be detrimental. The Tribunal accepts the verbal evidence the applicant has assisted with several other employees emanating from Zimbabwe which valuable to both the business and the individuals. However, a natural consequence of running any business is the requirement to have contingency planning in place to compensate for the loss of individuals for a wide variety of reasons and ensure business continuity. The Tribunal is not satisfied this circumstance is any more challenging than those faced by a myriad of businesses daily.

8. The Tribunal has carefully considered the submissions made by Mr Chikerema’s secondary employer, Spoken Word Fellowship which were corroborated by the Church Secretary Mr Dimov at the hearing. It acknowledges the monthly financial compensation paid to the applicant as a sign of his value to the organisation. It has also given weight to the range of submissions made by his fellow worshipers, people who clearly value him and his family and the contribution they all make to their lives. The Tribunal accepts that the individuals within the organisation and the organisation itself will greatly miss the applicant’s contributions. This is not however sufficient to enliven the concepts of compassionate circumstances or compelling circumstances in the view of the Tribunal to the level needed.

9. The Tribunal accepts that the Chikerema family appear to have some deep community ties in Australia emanating from their circle of fellowship and worship. This is most easily demonstrated by the statements made by fellow Church goers and the Church secretary’s evidence. The Tribunal accepts their absence will likely have a detrimental effect on both their Australian community friends as well as the family’s loss associated with leaving the local community in which they have been members for the substantial part of a decade. The Tribunal accepts that the Church is actively engaged with the family and in particular support of Raisa. It also acknowledges that the subsequent birth of 2 additional children since their arrival in Australia.

10. It is noted that Mr Chikerema chose to come to Australia in December 2014, on a visitor visa 6 months after Raisa was born with severe cognitive and functional impairments. His wife and daughter Raisa arrived on 7 September 2015. Mr Chikerema subsequently obtained a 457 temporary work visa. He applied for a Skilled Independent (subclass 189) visa which was refused as Raisa had failed to meet the health requirement, as a result of her complex medical needs under the requirements of PIC 4005. Mr Chikerema and family did not have the option to request that the health requirement be waived for their 189-visa application.

11. The Tribunal notes the following statement made by the applicant’s representative.

12. ‘In light of this refusal, Mr Chikerema sought advice and was advised that he ought to apply for a visa pathway that has a health waiver available i.e., PIC 4007. As result, Mr Chikerema, with the support of his employer, decided to apply for the 186 visa once he became eligible so he could give Raisa and his family a chance at permanent residency.’

13. It is not unreasonable to conclude that Mr Chikerema chose to come to Australia to try to establish a better life for his wife and severely disabled child. Nor is it unreasonable to undertake such an action. What must be considered however is the degree to which it is Australia’s responsibility to undertake the burdens associated with the secondary applicant’s substantial needs. The Tribunal has some sympathy for the challenges facing this family.

14. The Tribunal has considered the employment and financial circumstances the applicants are likely to face should they return to Zimbabwe. It has considered the ongoing socio-political climate and acknowledges that it will be challenging to obtain work or work at the level the applicant is currently operating. There is strong likelihood of reduced financial circumstance. Whilst having some empathy with the applicants it is not sufficient to enliven the concepts of compassionate circumstances or compelling circumstances in the view of the Tribunal.

15. The Tribunal acknowledges the applicant assists with his mother’s chronic health care needs as she continues to reside in Zimbabwe. It is likely he will find it difficult to undertake financial assistance if he is unable to obtain substantial employment on the family’s return to Zimbabwe.

16. The Tribunal acknowledges and accepts as accurate the written and verbal submissions that Raisa’s health care is likely to be downgraded in Zimbabwe. It is a reasonable assessment to assume this will negatively impact the entire family and Raisa’s wellbeing and ongoing health. As previously stated, the Tribunal is sympathetic towards the plight of this family but not to the degree that it believes that it is the Australian community which should shoulder the responsibility of the lifetime of care required and the very substantial associated costs.

17. The Tribunal presented Adverse Information during the hearing under ss.359(AA). It explained that the applicant would be invited to comment or respond to that adverse information once it was presented. It was also explained that they did not have to respond or comment immediately but could request additional time before responding.

18. The Tribunal explained that the MOC’s most recent report and the associated costing breakdown, both of which had been given to the applicant prior to the hearing constituted adverse information, even though the information was already known to the applicant. The Tribunal explained that this adverse information is relevant because ‘If your child, the secondary applicant is unable to meet the health requirements to satisfy PIC 4007, which are needed to meet the requirements of the 186 visa, which has been clearly established by 4 separate MOC assessments, that she can’t meet those health requirements, and the Tribunal is unable to remit the decision based upon its discretionary powers all of the visa applicants will be unable to meet the requirements of the 186 visa. It should be noted the Tribunal is placing weight on the most recent MOC Report as the other 3 are no longer current or valid.

19. The Tribunal then went on to say why the information is relevant. ‘I have some discretionary power in this issue. However, the Tribunal will not be able to remit the decision of the Minister’s delegate if it determines that there are considerable costs to the Australian community and if it is unable to determine that the costs incurred by the Australian community, in support of the secondary applicant are less than the compassionate considerations and the impact upon the Australian community. In other words, the visa cannot be granted and the decisions not approving the visas stay as they are.’

20. The primary applicant was then asked if he would like to comment or respond or would he like additional time. He responded immediately. The primary applicant reiterated the previous information presented to the Tribunal in written form prior to the hearing as well as verbally at the hearing. Both he and his representative had previously emphasised their view that the secondary applicant Ms Raisa Anotida Chikerema would require less support, which had not been indicated by the MOC Report. The applicant again reiterated this view and stated she had exceeded expectations and developmental milestones.

21. It was likewise explained by the applicant at the hearing and his representative in writing that Mr Chikerema is currently well paid and able to provide funds in support of his daughter’s needs. The Tribunal acknowledges the altruistic nature of such actions but also observes the reality that in all likelihood this will still entail the need for other individuals to care for their daughter as clearly evidenced by the MOC Reports and the medical reports provided.

22. The Tribunal has carefully considered the representative’s detailed submission. It has concluded that it is fair to accept the MOC’s opinion and it has therefore concluded the considerable cost to the Australian community is undue. It has in addition considered and weighed the concepts of compassion both in relation to the visa applicants and the wider Australian community.

23. The Tribunal having considered all the evidence before, finds it is unable to conclude in favour of the delegate’s decision being remitted. Whilst it finds there are some compassionate circumstances, they are not sufficient to nullify the considerable burden likely to befall the Australian community. It acknowledges the sense of loss faced by this family as persons faced with being unable to stay in the country of their choice. It accepts that the supportive community and Church members with whom they interface will feel a loss. It is also accepted there may be some interruption to children’s education in the future and a probable negative realignment of Ms Raisa Anotida Chikerema care and treatment.

24. The Tribunal is aware that the primary applicant’s employer will be negatively impacted but no more than any business losing a valued employee through other causes of attrition. Bearing in mind, few enterprises lose less than 10% of employees per annum and many have to replace a far greater % number each year. Normal management and business continuity planning which is the responsibility of any organisation’s senior management should be able to compensate in the medium term. In the view of the Tribunal the considerable costs which will be borne by the Australian community are sufficiently substantial as to outweigh the reasons to remit the delegates decision. 

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

26. As the applicant has not satisfied the requirements of PIC 4007 and subsequently cl 186.224(2) and therefore cl 186.224 of Schedule 2 to the Migration Regulations 1994, the decision under review must be affirmed.

    Assessment against other streams

27. In accordance with the Migration Regulations, the Tribunal has also assessed whether the criteria for the grant of an Employer Nomination (subclass 186) visa within any other stream within this visa subclass have been satisfied.

28. Since clause 186.224 is not satisfied, the criteria for the grant of an Employer Nomination Scheme (subclass 186) visa in the Temporary Residence Transition stream are not satisfied.

29. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Temporary Residents Transition stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Temporary Residents Transition stream have not been met, the decision under review must be affirmed.

    Secondary Applicants

30. The Tribunal is not satisfied that Secondary applicants, Ms Abigail Kudzai Chikerema, Ms Raisa Anotida Chikerema, Master Joseph Marrion Chikerema meet the requirements of clause 186.311 in Schedule 2 of the Migration Regulations. This clause provides that the applicant is a member of the family unit of a person (the primary applicant) who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa and made a combined application with the primary applicant.

31. 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

32. The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) visas.

    Peter Emmerton

    
    

    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.