Cho (Migration)

[2020] AATA 315

Cho (Migration) [2020] AATA 315 (12 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hun Keun Cho

CASE NUMBER:  1920822

DIBP REFERENCE(S):  BCC2017/3954731

MEMBER:Peter Emmerton

DATE:12 February 2020

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for a  Regional Employer Nomination (Permanent) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 187 -  Regional Sponsored Migration Scheme visa:

·PIC 4005(1)(c)(ii)(A) for the purposes of cl.187.235 of Schedule 2 to the Regulations.

Statement made on 12 February 2020 at 3:13pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – health criteria – MOC opinion – opinions made before 1 July 2019 – updated procedural instructions – positive assessment – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.25A; Schedule 2, cl 187.235; Schedule 4, PIC 4005

CASES
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 a decision made by a delegate of the Minister for Immigration on 23 July 2019 to refuse to grant the applicant a Regional Employer Nomination (Permanent) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 26 October 2017. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.187.235 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4005 of Schedule 4 to the Regulations was not met.

3. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this review is whether the visa applicant meets Public Interest Criterion, (PIC) 4005, as required by the criteria for the grant of the visa. Public Interest Criterion 4005, 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. The applicant in this case was unable to satisfy the delegate that they were able to meet cl.187.235(2) because they were suffering from an asymptomatic chronic medical condition. This is because the condition would result in a significant cost to the Australian community in the areas of health care and community services.

   Is the applicant free from the relevant diseases or conditions (PIC 4005(1)(a), (b), (c))?

6. Public interest criterion 4005(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.

7. Public interest criterion 4005(1)(c) requires the applicant be free from a disease or condition which would be likely to require health care or community services or which would meet the medical criteria for provision of a community service during the specified period; and  provision of the health care or community services (regardless of whether it will actually be used in connection with the applicant) would be likely to: result in a significant cost to the Australian community in the areas of health care and community services; or prejudice access of an Australian citizen or permanent resident to health care or community services. For specified temporary visas, certain specified health care and community service are excluded from this consideration: PIC 4005(3).

8. As the applicant in this case has applied for a permanent visa, the exclusion provision in PIC 4005(3) does not apply.

9. In determining whether a person meets PIC 4005(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).

   Is a MOC opinion required?

10. 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.

11. On 10 November 2017 the applicant was assessed by a Medical Officer of the Commonwealth, (MOC) as not satisfying sub-paragraph PIC 4005 (1)(c)(ii)(A) on the basis that they were suffering from an asymptomatic chronic medical condition. This is because the MOC assessed that granting a visa to the applicant was likely to result in a significant cost to the Australian community in the areas of health care and community services.

12. On 17/04/2019 the applicant was advised of this adverse finding and provided with the opportunity to comment or submit further information in relation to the MOC’s assessment within 28 days.

13. On 08/05/2019 an extension of 28 days was requested by the applicant and approved to provide advice from the applicant’s Medical Specialist and results of blood tests.

14. On 14/05/2019 the applicant provided a Specialist letter dated 1/05/2019, which was forwarded onto the MOC for consideration.

15. On 17/06/2019, based on all new information provided, the applicant was reassessed by the MOC as not satisfying sub-subparagraph 4005(1) (c) (ii) (A), on the basis of a Asymptomatic chronic health condition.

16. On 29 January 2020 the Tribunal wrote to the applicant stating the following;

17. ‘I am writing in relation to the application for review made by you in respect of decision to refuse to grant a Regional Employer Nomination (Permanent) visa.

18. The decision to refuse to grant a visa was based on an opinion of a Medical Officer of the Commonwealth that Hun Keun Cho did not meet the relevant health criterion.

19. If you wish to obtain another opinion, we can arrange for a further opinion to be obtained from a Medical Officer of the Commonwealth.

20. We consider that a further opinion from a Medical Officer of the Commonwealth should be obtained because the earlier opinion is not current.

21. Please be advised that the Department has updated its procedural instructions for Medical Officers of the Commonwealth (MOC) assessing health criteria PIC 4005 & 4007 on 1 July 2019. The changes may have effect on all MOC opinions made before 1 July 2019 based on the old procedural instructions.’

22. The applicant sought a new MOC opinion which was received by the Tribunal dated 6 February 2020. The MOC stated the following;

    06/02/2020

    FORM 884: OPINION OF A REVIEW MEDICAL OFFICER OF THE COMMONWEALTH
    THE APPLICANT MEETS THE HEALTH REQUIREMENT
    HAP Id 14841154
    Client Surname CHO
    Client Given Names HUN KEUN
    Birth Date 13/10/1996
    Sex MALE
    Visa Sub Class 187

    The applicant has been assessed against Public Interest Criterion (PIC) 4005 and meets the health
    requirement for a permanent stay in Australia.

    My opinion is based on available medical and radiological reports.

    Medical Officer of the Commonwealth
    Position Number: BUPA027

    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.

23. The Tribunal is satisfied that the period of assessment meets the requirements of 4005(2), that is for an application for a permanent visa – the period commencing when the application is made.

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

25. Accordingly, based on the opinion of the MOC, the applicant satisfies public interest criterion 4005(1)(c).

26. Given the findings above, the appropriate course is for the Tribunal to remit the matter to the Minister for reconsideration of the remaining criteria for the visa.

    DECISION

27. The Tribunal remits the application for a  Regional Employer Nomination (Permanent) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 187 -  Regional Sponsored Migration Scheme visa:

    ·PIC 4005(1)(c)(ii)(A) for the purposes of cl.187.235 of Schedule 2 to the Regulations.

    Peter Emmerton
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    Schedule 4

    4005(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)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 (2); 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.

    (2)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.

    (3)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 (2) (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.