Choi (Migration) [2018] AATA 266 (14 February 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Wooshin Choi
CASE NUMBER: 1608609
DIBP REFERENCE(S): BCC2015/1989173
MEMBER:Danica Buljan
DATE:14 February 2018
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) visa.
Statement made on 14 February 2018 at 5:35pm
CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 Employer Nomination Scheme – Non-migrating family member – Completed health assessments – RMOC opinion –Statutory interpretation – New policy guidelines – Ministerial intervention requestedLEGISLATION
Administrative Appeal Tribunal Act 1975, s 19D
Migration Act 1958, s 65, 348, 359A, 351, 360(2)
Migration Regulations 1994, rr 1.03, 1.12, 1.15B, 2.25A, Schedule 2 cl 186.235, Schedule 4 PIC 4005CASES
ADA15 v Minister for Immigration and Border Protection [2016] FCCA 291
Alimi v Minister for Immigration & Anor [2007] FMCA 1520
Attorney-General (Qld) v Australian Industrial Relations Commission (2002) 213 CLR 485
Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389
Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767
Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168
Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1
Minister for Immigration and Multicultural Affairs v Ma (1998) 82 FCR 455
Minister for Immigration and Multicultural and Indigenous Affairs v SZFML (2006) 154 FCR 572
Moller v Minister for Immigration and Citizenship [2007] FMCA 168
Nand v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 52
Sakhno v Minister for Immigration and Citizenship [2007] FMCA 1492
SGH Ltd v Federal Commissioner of Taxation (2002) 210 CLR 51
SZLYD v Minister for Immigration and Citizenship [2008] FMCA 805
Visnumolakala v Minister for Immigration [2006] FMCA 1209
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration on 26 May 2016 to refuse to grant the applicant an Employer Nomination (Permanent) visa under section 65 of the Migration Act 1958 (‘the Act’).
The applicant applied to the Department of Immigration for the visa on 10 July 2015. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).
The criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.
In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of ‘Baker’ (ANZSCO[1] Code 351111) for Maranel Pty Ltd. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.
[1] ANZSCO: Australian and New Zealand Standard Classification of Occupations; Latest issue release 26 June 2013. See
The delegate refused to grant the visa on the basis that the applicant did not satisfy clause 186.235 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’) because his spouse, Mrs Myongjoo Lee (‘Mrs Lee’), did not meet the health criteria in public interest criterion 4005 of Schedule 4 to the Regulations.
The applicant lodged an application for review with the Tribunal on 13 June 2016, and a copy of the primary decision was included with this application.[2] The applicant was represented in relation to the review by his registered migration agent.
[2] AAT Case file 1608609 (T1), f.1-6
The Tribunal has before it the departmental file[3] relating to the applicant. It has also had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.[4]
[3] D1 - Departmental file, BCC2015/1989173 1-120
[4] AAT Case file 1602130, folio numbered 1-200
Given the issues raised by the application for review, the Tribunal considers it useful to set out the following chronology.
The First Tribunal Invitation to Comment on or Respond to Information
On 14 September 2016[5], the Tribunal (differently constituted) invited the applicant under section 359A of the Act to comment on / respond to certain information before it, namely, that a Medical Officer of the Commonwealth (‘MOC’) had issued an opinion that Mrs Lee did not meet the requirements of public interest criterion 4005(1)(c)(ii)(A).
[5] T1, f.13-20
The Tribunal invitation stated that this information was relevant to the review because clause 186.235 of the Regulations required Mrs Lee to meet the requirements of public interest criterion 4005 and, if it found that she did not meet this requirement, the Tribunal would have no alternative other than to affirm the decision under review.
In the same letter, the Tribunal also informed the applicant that it could arrange to obtain a further medical opinion from the MOC. Accordingly, under section 348 and subsection 359(1) of the Act, the Tribunal invited the applicant to complete the relevant forms for this purpose if he wished to pursue this option.
The Tribunal letter included copies of the MOC opinion (dated 23 December 2015[6]), public interest criterion 4005 and regulation 2.25A, as well as a request form and information sheet regarding a new MOC opinion, to facilitate the applicant's response. The invitation also specifically stated that the Tribunal must receive the applicant’s comments / response, or any request for an extension of time in which to do so, by 28 September 2016, or he would lose any entitlement he might otherwise have under the Act to appear before the Tribunal.
[6] T1, f.17
On 20 September 2016 the applicant’s representative advised that the applicant wished to apply for a further opinion from a Medical Officer of the Commonwealth on Review (‘RMOC’), and he also requested an extension of time for the purpose of obtaining additional medical reports for the purpose of this referral.[7]
[7] T1, f.21-23
As a result, on 29 September 2016 the Tribunal granted the applicant an extension for a further prescribed period, namely, until 13 October 2016, to provide his comments / response to the Tribunal.[8]
[8] T1, f.25-27
On 29 September 2016 the applicant’s representative responded to (or commented on) the Tribunal invitation by confirming that the applicant was in the process of organising additional medical reports for consideration by the RMOC, thereby preserving the applicant’s right to a hearing.[9]
[9] T1, f.28-29
On 18 October 2016 the representative advised that they had received specialist medical reports for Mrs Lee who had attended an appointment on 13 October 2016. In particular, the representative stated that, once received, they would submit these documents to the Tribunal in order to proceed with the RMOC assessment. The applicant subsequently submitted evidence that he had done so on 21 October 2016.[10]
[10] T1, f.30-38
Accordingly, on 27 October 2016 the applicant’s representative provided the Tribunal with a formal written submission in response to its section 359A invitation, which also included copies of additional medical reports for Mrs Lee.[11]
[11] T1, f.39-73 & Duplicate copies at T1, f.74-114
On 2 November 2016 the Tribunal forwarded this additional evidence to the RMOC.[12] On 8 November 2016 the RMOC deferred Mrs Lee’s health assessment on the basis that further specialist medical information was required.[13]
[12] T1, f.74-117
[13] T1, f.118-119
On 2 December 2016 the applicant’s representative queried the progress of the RMOC opinion. As a result, made appropriate enquiries and on 11 January 2017 the Tribunal wrote to the applicant under section 348 and subsection 359(1) of the Act to request the additional medical information requested by the RMOC. In its letter, the Tribunal requested that the applicant provide this additional information by 25 January 2017.[14]
[14] T1, f.120-124
On 12 and 20 January 2017 the applicant requested an extension of time in which to do so, on the basis that the earliest date Mrs Lee could make an appointment with her specialist was 9 February 2017.[15] On 24 January 2017 the Tribunal granted this request.[16]
[15] T1, f.129-128
[16] T1, f.127-131
On 7 February 2017 the applicant’s representative wrote to the Tribunal confirming the applicant’s appointment with her medical specialist on 9 February 2017, and advising that the relevant reports would be submitted after that appointment had taken place.[17]
[17] T1, f.132-134
On 13 March 2017[18] the representative provided the Tribunal with an additional submission regarding Mrs Lee’s status as a non-migrating family member who would remain resident in South Korea. She also submitted relevant reports regarding Mrs Lee’s medical situation, including the additional specialist report (dated 20 February 2017[19]) requested by the RMOC, which the Tribunal forwarded on 15 March 2017.[20]
[18] T1, f.135-137
[19] T1, f.135
[20] T1, f.138
Significantly, on 29 March 2017 the RMOC issued an opinion that Mrs Lee did not meet the requirements of public interest criterion 4005(1)(c)(ii)(A).[21] On 21 June 2017 the applicant’s representative wrote to the Tribunal requesting access to and a copy of this RMOC opinion.[22]
[21] T1, f.148
[22] T1, f.152-154
On 28 June 2017 this matter was reconstituted to the Presiding Member under subsection 19D(1) of the Administrative Appeal Tribunal Act 1975.
The Second Tribunal Invitation to Comment on or Respond to Information
On 3 July 2017[23] the Tribunal wrote to the applicant under section 359A of the Act to comment on / respond to the fact that the RMOC had issued an opinion on 29 March 2017 that Mrs Lee did not meet the requirements of public interest criterion 4005(1)(c)(ii)(A). In particular, this letter explained that this information was relevant to the review for the purposes of clause 186.235 of the Regulations. Copies of the RMOC opinion (dated 29 March 2017[24]), public interest criterion 4005 and regulation 2.25A were included to facilitate the applicant's response.
[23] T1, f.156-161
[24] T1, f.148
The invitation also specifically stated that the Tribunal must receive the applicant’s comments / response, or any request for an extension of time in which to do so, by 17 July 2017, or he would lose any entitlement he might otherwise have under the Act to appear before the Tribunal.[25]
[25] T1, f.156-161
On 14 July 2017[26] the applicant’s representative, along with another lawyer / colleague from the same immigration law firm, provided a written submission to the Tribunal in response to its second section 359A invitation.[27] In this particular submission, the representative and lawyer argued that Mrs Lee would not be resident in Australia, she would not be able to access Medicare or the Pharmaceutical Benefits Scheme under the relevant legislation, and that the costs of her condition over a period of five years should be assessed as less than $26,000.
[26] T1, f.162
[27] Subsections 379G(3) and (3A) of the Act allow an applicant to vary their authorised recipient, but provide that only one person can be the applicant’s authorised recipient. Therefore, an applicant, or an agent of the applicant acting on instructions, may withdraw or vary their notice of an authorised recipient, however, unlike the appointment of an authorised recipient which must be in writing, the Act is silent on how this may take place. In these circumstances, the Courts have accepted that an applicant, or an agent of the applicant acting on instructions, may withdraw or vary their notice of an authorised recipient orally (Full Federal Court in MZZDJ v Minister for Immigration and Border Protection (2013) 216 FCR 153) or implicitly through their conduct (SZLWE v Minister for Immigration and Citizenship [2008] FCA 1343 (Perram J, 19 September 2008)). In this case, the Tribunal is satisfied that the applicant has varied his representative, but not his authorised recipient for the purposes of the application for review.
In addition, the representative and lawyer explained the exceptional nature of the applicant’s artisan skills as a baker, as well as the difficulties his employer had in attracting and retaining staff on Rottnest Island. They also indicated that they wanted the Tribunal to refer the matter to the Minister under section 351 of the Act.
However, the representative and lawyer subsequently put forward a second submission (dated 22 July 2017[28]) in which they argued that, following the introduction of new departmental policy guidelines regarding non-migrating family members, the Tribunal should find that it was unreasonable to require Mrs Lee to undergo a health assessment for the purposes of subclause 186.235(3) of the Regulations. As a result, the representative and lawyer submitted that the Tribunal should find that the applicant met the requirements of clause 186.235 of the Regulations.
[28] T1, f.164-165
The Tribunal Hearing
On 16 January 2018[29] the Tribunal wrote to the applicant in respect of the submissions it had received on 14 and 22 July 2017. Specifically, the Tribunal outlined why it had formed the view that the departmental policy the applicant was seeking to rely upon went beyond the wording of the legislation and, in the alternative, why Mrs Lee did not come within the changed policy guidelines on a factual basis. The Tribunal also noted that on 14 July 2017 the representative and lawyer had requested referral of the matter to the Minister under section 351 of the Act.
[29] T1, f.169A-171
Accordingly, the Tribunal requested confirmation from the applicant regarding whether he was seeking to waive his right to a hearing, as well as any additional submissions and evidence he wanted the Tribunal to take into account for the purposes of any referral to the Minister under section 351 of the Act.
On 19 January 2018 the representative and lawyer responded that the applicant had advised he was “prepared to waive his right to an AAT hearing” and that he did not wish for this matter to proceed to the Minister under section 351 of the Act.[30]
[30] T1, f.173-174
Accordingly, pursuant to the judgment in Minister for Immigration and Multicultural and Indigenous Affairs v SZFML[31], on 19 January 2018 the Tribunal wrote to the applicant’s representative to request that she provide direct written confirmation from the applicant that he had consented to the Tribunal deciding the review without a hearing under paragraph 360(2)(b) of the Act.
[31] (2006) 154 FCR 572 at [71], [72] & [74]
In addition, on 22 January 2018 the Tribunal further wrote to the representative that, unless the applicant provided a signed and unequivocal consent to waive his right to a hearing by 29 January 2018, the matter would be scheduled for a hearing. The Tribunal explained that this was because, without such consent and based on the evidence before it, the Tribunal was not satisfied that it should decide the review in the applicant’s favour.[32]
[32] T1, f.177
However, there was no response to this correspondence from the applicant or his representative by 29 January 2018. As a result, on 5 February 2018 the Tribunal invited the applicant to appear before it on 22 February 2018.[33]
[33] T1, f.178-184
On 8 February 2018 the Tribunal received a written statement (dated 7 February 2018[34]) signed by the applicant that he consented to the Tribunal deciding the review without a hearing, the signature of which resembled the signature set out in the applicant’s Korean passport.[35] As a consequence, the Tribunal is satisfied that the applicant signed this document, and that he has consented to the Tribunal deciding the review without a hearing under paragraph 360(2)(b) of the Act.
[34] T1, f.185
[35] D1, f.92
On 8 February 2018 the representative also provided a completed ‘Response to hearing invitation’ form (MR 19)[36] indicating that neither the applicant nor his representative would take part in the hearing scheduled for 22 February 2018.
[36] T1, f.186-188
Accordingly, as the applicant consented on 7 February 2018 to the Tribunal deciding the application for review without him appearing before it, the Tribunal has proceeded under paragraph 360(2)(b) of the Act to make a decision on the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Division 186.2 ‘Primary Criteria’ in Subclass 186 provides that the primary criteria an applicant in the Direct Entry stream must satisfy are set out in Subdivisions 186.21 (‘Common criteria’) and 186.23 (‘Criteria for Direct Entry stream’).
In addition, Division 186.2 specifically states that the primary criteria must be satisfied by at least one member of a family unit, and that all criteria must be satisfied at the time a decision is made on the application.
The issue in this review is whether the applicant meets the requirements of clause 186.235, which states:
186.235
(1)The applicant satisfies public interest criterion 4005.
(2)Each member of the family unit of the applicant who is an applicant for a Subclass 186 visa satisfies public interest criterion 4005.
(3)Each member of the family unit of the applicant who is not an applicant for a Subclass 186 visa satisfies public interest criterion 4005 unless the Minister is satisfied that it would be unreasonable to require the member to undergo assessment in relation to the criterion.
Specifically, the applicant’s visa application was refused because a MOC found that Mrs Lee, his spouse and a non-migrating member of his family unit, did not meet public interest criterion 4005 for the purposes of subclause 186.235(3) and clause 186.235.
Public interest criterion 4005, as it applies to this case, is extracted in the attachment to this decision. It requires individuals in certain circumstances to undergo medical assessment and to be free of certain diseases or conditions that may impact on the community.
Is the applicant’s spouse, Mrs Lee, free from the relevant diseases or conditions (Public interest criterion 4005(1)(a), (b), (c))?
Public interest criteria 4005(1)(a) and (b) require Mrs Lee to be free from tuberculosis and free from a disease or condition that is, or may result in her being, a threat to public health in Australia, or a danger to the Australian community.
In addition, public interest criterion 4005(1)(c) requires Mrs Lee to be free from a disease or condition that 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
·the 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:
Ø result in a significant cost to the Australian community in the areas of health care and community services; or
Ø prejudice access of an Australian citizen or permanent resident to health care or community services.
For specified temporary visas, public interest criterion 4005(3) provides that certain specified health care and community services are excluded from this consideration.[37]
[37] Public interest criterion 4005(3)
In addition, in determining whether a person meets public interest criteria 4005(1)(a), (b) or (c), regulation 2.25A requires the Tribunal to seek the opinion of a 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.
Importantly, where a MOC opinion is required, the Tribunal must take it to be correct.[38]
[38] Subregulation 2.25A(3)
In this case, as the applicant has applied for a Subclass 186 visa, which is a permanent visa, the Tribunal finds that the exclusion provision in public interest criterion 4005(3) does not apply.
‘Non-Migrating Member of the Family Unit’:
Accordingly, the next issue before the Tribunal is whether Mrs Lee is a member of the applicant’s family unit who is not an applicant for a Subclass 186 visa for the purposes of subclause 186.235(3).
Subsection 5(1) of the Act provides that ‘member of the family unit’ has the meaning given by the Regulations for the purposes of this definition. Specifically, regulation 1.03 provides that ‘member of the family unit’ has the meaning set out in regulation 1.12, and paragraph 1.12(1)(a) relevantly includes a ‘spouse or de facto partner’ for this purpose.
In this case, the applicant identified Mrs Lee as his spouse / de facto partner in his online visa application form.[39] In addition, in the medical reports provided to the Department[40] and Tribunal[41] Mrs Lee is referred to as the applicant’s spouse. Likewise, the applicant’s representative and lawyer have repeatedly referred to Mrs Lee as the applicant’s spouse / wife in the submissions they have provided to the Tribunal. Indeed, at no time during the review application, have they suggested that this is not the case.[42]
[39] D1, f.111
[40] D1, f.13, 16, 58 & 61
[41] T1, f.66
[42] T1, f.22-23, 29,73, 133, 137, 162, 165 & 173
The Tribunal further observes that Mrs Lee was also identified as a non-migrating dependent family member in the applicant’s online visa application form.[43] This has also been confirmed in the written submissions that have since been provided to the Tribunal.[44]
[43] D1, f.111
[44] T1, f.164-165
As a consequence, the Tribunal is satisfied that Mrs Lee is the applicant’s spouse and a member of his family unit who is not an applicant for a Subclass 186 visa. Therefore, the Tribunal finds that she is a non-migrating member of the applicant’s family unit and that she comes within the scope of subclause 186.235(3).
Is a MOC opinion required?
The applicant advised in his visa application form that his spouse, Mrs Lee, was a national of the Republic of Korea (‘South Korea’)[45]. He also submitted a copy of Mrs Lee’s penal check from South Korea, which confirms her nationality as South Korean.[46]
[45] D1, f.111: As the applicant gave this information in writing during the process that led to the decision under review it comes within the exception in subsection 359A(4)(ba) of the Act: See also See SZLYD v Minister for Immigration and Citizenship [2008] FMCA 805 at [30] and ADA15 v Minister for Immigration and Border Protection [2016] FCCA 291 at [5], which was upheld on appeal: ADA15 v Minister for Immigration and Border Protection [2016] FCA 634.
[46] D1, f.57
The relevant instrument in this case is IMMI 13/161 ‘Specification of Countries’[47] and it provides that South Korea is one of the countries specified for the purposes of subregulation 2.25A(1)(b). Therefore, the Tribunal finds that under this regulation a MOC opinion is required for nationals from South Korea.
[47] 17 March 2014
Accordingly, the Tribunal finds that it is bound by subregulation 2.25A(3) to accept the most recent and final assessment of the RMOC to be correct for the purposes of deciding whether the relevant health criterion in public interest criterion 4005 is met at the time of decision.
As noted above, whilst the Tribunal must take the RMOC opinion as correct, it must also first be satisfied that the RMOC has applied the correct test in forming the opinion.[48] In particular, 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 Mrs Lee. The RMOC must also have applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition.
In this case, a MOC provided an opinion on 23 December 2015 that Mrs Lee had a chronic medical condition that was expected to include regular medical review and medication. As such, the MOC assessed Mrs Lee’s condition to likely be permanent and found that it would be likely to result in a significant cost to the Australian community in the areas of health care and/or community services.[49]
[49] T1, f.17
In addition, in response to the Tribunal’s first section 359A invitation (dated 14 September 2016[50]) the applicant requested a further medical opinion from a RMOC for Mrs Lee. This is the most recent MOC opinion before the Tribunal for the purposes of this application for review.
[50] T1, f.13-20
Specifically, the RMOC opinion that was provided on 29 March 2017 states that the RMOC found that Mrs Lee’s chronic condition had progressed adversely, and it also assessed her condition to likely be permanent.
The Tribunal further notes that, after considering the medical assessments provided by the visa medical assessment, associated investigations, reports from Mrs Lee’s treating specialist and the Seoul National University Bundang Hospital, the RMOC assessed Mrs Lee’s condition by reference to a hypothetical person with this disease / condition at the same severity as Mrs Lee.
In particular, the RMOC found that the provision of the medical services and pharmaceuticals Mrs Lee required would be likely to result in a significant cost to the Australian community in the areas of health care and / or community services.[51] Consequently, the RMOC found that Mrs Lee did not satisfy public interest criterion 4005(c)(ii)(A) in Schedule 4 and, thus, she did not meet public interest criterion 4005.
[51] T1, f.148
Given this opinion, on 3 July 2017[52] the Tribunal issued its second section 359A invitation to the applicant. In response, the applicant’s representative and lawyer submitted that the Tribunal should find that departmental policy changes to the ‘Procedures Advice Manual 3’ (‘PAM3’)[53] in July 2017 (which still apply at the time of decision) meant that it was unreasonable to require Mrs Lee to undergo an assessment for the purposes of public interest criterion 4005 and subclause 186.235(3).
The ‘unreasonable to require the person to undergo assessment' exception:
[52] T1, f.13-20
[53] Legend: PAM – Sch4 – 4005-4007 – the health PIC > [Sch4 4005-4007 PI] – The Health Requirement
The Tribunal observes that the representative’s submissions in this case raise the issue of the proper construction of subclause 186.235(3). In considering this matter, the Tribunal notes that there is increasing recognition, as outlined in the renowned textbook, ‘Statutory Interpretation in Australia’[54], that the legal principles applicable to this task have evolved over time since the ‘literal rule’ was first applied.
[54] D. C. Pearce & R. S. Geddes, ‘Statutory Interpretation in Australia’, Eight Edition, Lexis Nexis Butterworths, Australia, 2014 – Chapter 2, paragraphs 2.3-2.16 , pages 35-51
Notably, on the question of statutory interpretation in the modern era, former Justice Michael Kirby AC CMG of the High Court of Australia observed that the High Court had unanimously adopted the following three principles:
·The correct starting point is the text of the legislation, rather than “judicial statements regarding the common law or even judicial elaborations of the statute”;
·The overall objective of statutory construction is to give effect to the intention of Parliament as expressed in the text of the relevant legislation; and
·In order to derive the meaning from the text and to fulfil the purpose of Parliament, the interpreter should look at the words in the sentence, paragraph and surrounding provisions to identify the context in which the words are use.[55]
[55] T1, f.189-199: The Honourable Michael Kirby AC CMG, ‘Statutory Interpretation: The Meaning of Meaning’ (2011) Volume 35 Melbourne University Law Review, 113, at page 116
This approach has been endorsed in a number of Australian judgements, including immigration cases.[56]
[56] Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389, 396–7 (Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ), quoting R v Brown [1996] 1 AC 543, 561 (Lord Hoffmann); Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1, 36 [109] (Kirby J); SGH Ltd v Federal Commissioner of Taxation (2002) 210 CLR 51, 91 [88] (Kirby J); Attorney-General (Qld) v Australian Industrial Relations Commission (2002) 213 CLR 485 (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ)
The Tribunal observes that the wording of subclause 186.235(3) specifically requires it to be satisfied that Mrs Lee, as a member of the applicant’s family unit who is not an applicant for a Subclass 186 visa, satisfies public interest criterion 4005 unless the Minister (or the Tribunal upon review) is satisfied that it would be unreasonable to require Mrs Lee to undergo the relevant health assessment for the purposes of public interest criterion 4005.
The Act and Regulations do not define the terms ‘unreasonable’ or ‘unless’ for the purposes of subclause 186.235(3).
According to the Macquarie Dictionary Online the word ‘unreasonable’ is defined to mean “1. not reasonable; not endowed with reason; 2. not guided by reason or good sense; 3. not agreeable to or willing to listen to reason; 4. not based on or in accordance with reason or sound judgement; 5. exceeding the bounds of reason; immoderate; exorbitant.”[57]
[57] T1, f.172: See – Accessed 19 January 2018
Similarly, the word ‘unless’ is defined to mean: “1. except on condition that; except if it be, or were, that; except when; if … not … 2. Obsolete except; but.”[58]
[58] T1, f.200: See – Accessed 13 February 2018
As a consequence, given the wording of subclause 186.235(3), together with the dictionary meaning of ‘unreasonable’ and ‘unless’, the Tribunal considers that the text of subclause 186.235(3) indicates that the starting point for the purposes of this provision is that a non-migrating member of an applicant’s family unit is required to satisfy public interest criterion 4005 except where it would be unreasonable to expect them to do so in the particular circumstances of the relevant case. This will be a question of fact in each individual case.
This view is supported by the context in which subclause 186.235(3) appears, as both subclauses 186.235(1) and (2) respectively require the applicant, and each member of his family unit who is an applicant for a Subclass 186 visa, to satisfy public interest criterion 4005. In other words, each of these provisions places a heavy emphasis on the requirements of public interest criterion 4005 being met.
Accordingly, the Tribunal observes that the context in which subclause 186.235(3) appears also favours the view that public interest criterion 4005 is a criterion that must be satisfied by non-migrating member of the applicant’s family unit except where the circumstances of a particular case warrant otherwise.
In order to ascertain the legislative purpose behind this provision the Tribunal has also considered the departmental policy guidelines in PAM3 in relation to both the health criteria and subclause 186.235(3).
Specifically, the non-binding PAM3 guidelines explain the underlying purpose of the health criteria[59] in Schedule 4 of the Regulations as follows:
[59] Legend: PAM – Sch4 – 4005-4007 – the health PIC > [Sch4 4005-4007 PI] – The Health Requirement
It is important for Australia and for the continuation of visa programmes that public health risks and health costs are not unduly increased by travellers and migrants. For this reason, applicants for visas to visit, or migrate to Australia are required to meet certain health requirements which are outlined in the Migration Regulations1994 (the Regulations) and policy framework.
A key focus of the health requirement is to protect the Australian community from increased public health risks, including Tuberculosis and emerging health epidemics.
Most visa subclasses are subject to the health requirement as a criterion for visa grant. The health requirement is set out in the Public Interest Criteria (PICs)(4005, 4006A and 4007) under Schedule 4 of the Regulations. The purpose of the health requirement is to:
· Protect the Australian community from threats to public health
· Contain public expenditure on health and community services and
· Safeguard the access of Australian residents to health and other community services in short supply.
…
Schedule 4 health-related criteria
The “standard” legislative framework of the health requirement is provided at PIC 4005.
To meet the health requirement, applicants must complete any requested immigration medical examinations and must not be assessed by a MOC as having:
· active TB
· a condition that may result in them being a threat to public health or a danger to the community
· a condition that is likely to result in a significant cost to the Australian community in the areas of health care and community services (that is, under policy is likely to require health care and community services which are estimated to cost more than the significant cost threshold of AUD 40 000) and/or
· a condition that would prejudice the access of Australian citizens or permanent residents to services that are considered to be in short supply (currently, organ transplants and dialysis).
All applicants for visas to which the PICs 4005, 4006A and 4007apply must satisfy the s65 delegate that they meet the health requirement in order to be granted a visa, unless a health waiver is available (under PIC4006A or PIC4007) and exercised by the visa delegate.
…
[Tribunal emphasis]
In relation to the construction of subclause 186.235(3), the applicant’s representative submitted on 22 July 2017 that changes to the departmental policy guidelines in PAM3[60] at that time, and which are still in place at the time of decision, meant that there was no requirement for Mrs Lee, as a non-migrating member of the applicant’s family unit, to undergo a health assessment. Therefore, the representative argued that the opinion of the RMOC was immaterial, and that it was only binding upon the Tribunal under subregulation 2.25A(3) if the Tribunal found that Mrs Lee must undertake the medical assessment.
[60] Legend: PAM – Sch4 – 4005-4007 – the health PIC > [Sch4 4005-4007 PI] – The Health Requirement
The Tribunal observes that the relevant policy guidelines underpinning this submission provide:
…
As ‘unreasonable’ does not have a legislated definition, officers must give it its usual dictionary meaning. Under health policy, it is considered ‘unreasonable’ for Non-Migrating Family Members to complete health examinations. That is, Non-Migrating Family Members are not ordinarily required to complete health examinations.
However, in specified circumstances and where there is a strong reason, visa processing officers should give consideration as to whether a Non-Migrating Family Member should undertake health examinations, on the basis that it would be ‘reasonable.’
Circumstances requiring completion of health examinations
Circumstances which would warrant the request of health examinations may include where the Non-Migrating Family Member:
…
· Has previously failed to meet the health requirement
…
Transition arrangements
There are a number of transition arrangements which will apply to visa subclasses which have already been lodged with Non-Migrating Family Members included in the application. The following table specifies the scenarios and action required from visa processing officers.
Table 7 Transition arrangements for NMFMs
Scenario
Action Required
…
…
The NMFM completed medical examinations prior to the implementation of the new policy, and:
· The health requirement was not met, and
· There is no health waiver available.
Visa processing officers are to continue processing the visa based upon the failed health requirement.
…
[Tribunal emphasis]
However, whilst the Tribunal acknowledges that it may be guided by policy, it is not bound to follow it.[61] Specifically, the Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations. Indeed, there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant.[62]
[61] See Brennan, J. in Re Drake (No. 2) (1978-1980) 2 ALD 634
[62] See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429, Lobo v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCAFC 168; Visnumolakala v Minister for Immigration [2006] FMCA 1209 Alimi v Minister for Immigration & Anor [2007] FMCA 1520; Durzi v Minister for Immigration and Multicultural and Indigenous Affairs2006] FCA 1767 at [49]; Moller v Minister for Immigration and Citizenship [2007] FMCA 168 at [14]; and Sakhno v Minister for Immigration and Citizenship[2007] FMCA 1492 (at [55]
Importantly, in relation to the exemption set out in subclause 186.235(3) the Courts have previously held, in circumstances that are highly similar to those currently before the Tribunal, that it is not possible for the Tribunal to be satisfied that it would be unreasonable to require a person to undergo assessment for the purposes of public interest criterion 4005 where that person has already undergone such an assessment.
Specifically, in Minister for Immigration and Multicultural Affairs v Ma[63] (‘Ma’s case’) the Federal Court was considering the correct interpretation of paragraph 103.227(2)(b), which was drafted similarly to subclause 186.235(3). In particular, paragraph 103.227(2)(b)t provided that each non-migrating member of the applicant’s family unit was required to satisfy, amongst other things, public interest criterion 4005 “unless the Minister is satisfied that it would be unreasonable to require the person to undergo assessment” in relation to this particular criterion.
[63] 82 FCR 455 at [460] (Whitlam J, 31 March 1998)
In Ma’s case the parent applicants had included their daughter in their original Parent visa application, who twice underwent a health examination and was twice found by the MOC not to meet paragraph 4005(c). As a result, the applicants withdrew their daughter from the visa application and the then Immigration Review Tribunal (differently constituted) remitted their visa application to the Department, finding that there was no good reason for requiring their daughter, a non-migrating member of the applicants’ family unit, to undergo an assessment for the purposes of public interest criterion 4005.
However, on appeal the Court found that as a matter of construction, the Tribunal could not dispense with the adverse MOC opinions / assessments given in respect of the applicants’ daughter.
In other words, the Court held, following the decision in Nand v Minister for Immigration and Ethnic Affairs[64] (‘Nand’s case’), that the power to exempt a person from undergoing a health assessment on the basis that it would be unreasonable to require them to do so does not exist to undo an assessment that has actually been completed.[65] Indeed, it is arguable given the Court’s reasoning, that the power also does not exist when it is known that a person is unable to satisfy the specified health criteria, even when the individual has not yet undergone assessment.
[64] (1996) 71 FCR 52 (Moore J, 27 November 1996) at [55]-[56]
[65] Minister for Immigration and Multicultural Affairs v Ma (1998) 82 FCR 455 at [460] (Whitlam J, 31 March 1998)
See also Satya Nand v MIEA (1996) 71 FCR 52 (Moore J, 27 November 1996)at [55]-[56]
Accordingly, given the wording of subclause 186.235(3), the dictionary meaning of ‘unreasonable’ and the decisions in Ma’s and Nand’s cases, the Tribunal is satisfied that the policy guidelines in PAM3 do not provide a valid basis for it to ignore the most recent RMOC opinion before it and to find that it would be unreasonable to require Mrs Lee to satisfy public interest criterion 4005 for the purposes of subclause 186.235(3).
As a result, in assessing what is required by subclause 186.235(3) the Tribunal has taken into account the wording of this provision, the context in which it appears and the current policy intention for not only the health criteria in Public Interest Criterion 4005, but also how that requirement is to be satisfied in relation to the processing of Subclass 186 visa applications.
In doing so, the Tribunal considers that these factors favour the view that subclause 186.235(3) requires a non-migrating member of an applicant’s family unit to satisfy public interest criterion 4005 except where it would be unreasonable to expect them to do so in the particular circumstances of the relevant case. The Tribunal also considers that the proper construction of subclause 186.235(3) means that this exception does not arise where that individual has previously completed and failed the health requirement, or there is evidence to suggest that this would be the case.
Accordingly, although the approach set out in policy to the 'unreasonable’ exception in subclause 186.235(3) provides a reasonable starting point, the Tribunal considers that policy goes beyond the wording of both subclause 186.235(3) and regulation 2.25A of the Regulations, particularly given the decisions in Ma’s case and Nand’s case.
In any event, the Tribunal further notes that even if it were to apply the policy guidelines the applicant’s representative and lawyer have referred to, as set out below, the evidence indicates that Mrs Lee does not come within the scope of these guidelines for the following reasons.
Firstly, Mrs Lee completed the relevant assessments, and the MOC and RMOC issued their opinions on 23 December 2015 and 29 March 2017 respectively, prior to the implementation of the new policy guidelines for non-migrating members of the family unit in July 2017.
Secondly, the new policy guidelines provide that where a non-migrating member of the applicant’s family unit has previously failed to meet the health criterion, then it is reasonable to require that person to undertake a health examination.
Thirdly, these policy guidelines also provide that where there is evidence that the health requirement has not been met, which is the case here, and where there is no health waiver available, as is the case with public interest criterion 4005, the visa processing officer is to continue processing the visa application based on the failed health requirement.
As a consequence, the Tribunal finds that Mrs Lee does not come within the scope of the changes introduced to the policy guidelines in July 2017 (and which are still applicable at the time of decision) for non-migrating members of an applicant’s family unit.
Nevertheless, the Tribunal is satisfied that the relevant case law cited above means that it cannot find that, in the particular circumstances of this case, it would be unreasonable to require Mrs Lee to undergo assessment in relation to public interest criterion 4005.
The Application of this Construction to Mrs Lee’s Circumstances:
The evidence before the Tribunal is that Mrs Lee has at the time of decision undergone two assessments for the purposes of public interest criterion 4005. Specifically, on 23 December 2015[66] and 29 March 2017[67] when a MOC and RMOC respectively found that she did not satisfy public interest criterion 4005(c)(ii)(A) in Schedule 4 and that she did not meet public interest criterion 4005.
[66] T1, f.17
[67] T1, f.148
As a result, having regard to the evidence as a whole, the wording of subclause 186.235(3), the relevant dictionary definitions and case law, the Tribunal is not satisfied that it would be unreasonable in the particular circumstances of this case to require Mrs Lee to undergo an assessment in relation to public interest criterion 4005.
On 16 January 2018[68] the Tribunal set out its preliminary views regarding the submissions the applicant’s representative and lawyer had put forward in relation to the reasonableness of requiring Mrs Lee to undertake the relevant assessment for the purposes of public interest criterion 4005. On 19 January 2018[69] the applicant’s representative and lawyer indicated that the applicant wished to waive his right to a hearing, and that he did not wish to proceed to the Minister under section 351 of the Act.
[68] T1, f.169A-171
[69] T1, f.173
In the absence of any signed authority from the applicant to this effect, on 5 February 2018 the Tribunal invited the applicant to attend a hearing scheduled for 22 February 2018.[70] However, subsequently on 8 February 2018[71] the applicant’s representative and lawyer provided a signed authority from the applicant waiving his right to a hearing and a ‘Response to hearing invitation’ form indicating that the parties would not participate in the scheduled hearing.
[70] T1, f.178-184
[71] T1,f. 185-188
100. Importantly, the applicant and his representative and lawyer did not, and have not since, provided any further submissions or evidence in support of the issues arising in the current application for review.
101. As noted previously the MOC issued an opinion on 23 December 2015 to the effect that Mrs Lee did not meet the requirements of public interest criterion. For the purposes of the current application for review, the most recent MOC opinion before the Tribunal is the RMOC opinion issued on 29 March 2017.
102. Accordingly, having regard to the RMOC opinion, the Tribunal is satisfied that the RMOC did not apply the wrong test. Specifically, it is satisfied that this opinion, which was respectively based on the relevant medical information before the RMOC in March 2017, identifies Mrs Lee’s condition, to which the public interest criteria have been applied. The Tribunal is also satisfied that this opinion has ascertained the form, or level of, the condition suffered by Mrs Lee. In addition, the Tribunal is satisfied that the RMOC opinion has applied the statutory criteria by reference to a hypothetical person who suffers from that form, or level, of the condition.
103. As noted previously, as there is no other contrary MOC opinion, the Tribunal finds that it is required to make its decision based on the RMOC opinion currently before it, which was issued on 29 March 2017.
104. The Tribunal has taken into account the representative and lawyer’s submissions that the costs of Mrs Lee’s condition are likely to be less than the ‘threshold of significance’ ($40,000) for the health requirement, particularly once particular medical processes take effect and she ceases to use medication.[72]
[72] T1, f.136-137 & 162
105. However, unlike public interest criterion 4007, which specifically provides a mechanism in subclause 4007(2) for the waiver of the health criterion, public interest criterion 4005 does not include a similar provision. Indeed, the requirements set out in public interest criterion 4005 are relatively strict as it specifically provides that the assessment is to be made regardless of whether the applicant or his spouse will actually use Australian health care or community services.
106. Accordingly, based on the RMOC opinion provided on 29 March 2017, the Tribunal finds that Mrs Lee does not satisfy public interest criterion 4005(1)(c)(ii)(A) and public interest criterion 4005.
107. Therefore, the Tribunal finds that Mrs Lee does not satisfy the requirements of subclause 186.235(3) and, thus, the applicant does not meet the requirements of clause 186.235 for the purposes of the Direct Entry stream.
108. In relation to the Agreement stream, subclause 186.244(3) also requires Mrs Lee to satisfy the requirements of public interest criterion 4005. Accordingly, given the Tribunal’s findings in respect of public interest criterion 4005 and clause 186.235, the Tribunal finds that Mrs Lee also does not meet the requirements of subclause 186.244(3) and, therefore, the applicant does not satisfy clause 186.244 for the purposes of the Agreement stream.
109. The Tribunal observes that the applicant, his representative and lawyer have not argued that he meets the criteria for the grant of a Subclass 186 visa in the Temporary Residence Transition stream, and there is little in the evidence to suggest that he does. Consequently, the Tribunal is further satisfied that the applicant does not meet the criteria for the grant of a Subclass 186 visa in the Temporary Residence Transition stream.
110. As a result, given these findings, the Tribunal finds that the applicant does not satisfy the primary criteria for the grant of a Subclass 186 visa and it must affirm the decision under review.
Other Matters - Ministerial Intervention:
111. The Tribunal does not have the legal power to waive the mandatory criteria prescribed for a Subclass 186 visa. The only person who is able to waive the criteria is the Minister, where he believes it is in the public interest to do so. Section 351 of the Act states that the Minister can only intervene and substitute a decision that is more favourable to the applicant once the Tribunal has made an unfavourable decision.
112. Initially, in the section 359A response to the Tribunal (dated 14 July 2017[73]) the applicant’s representative and lawyer advised that he would be seeking Ministerial intervention under section 351 of the Act. This was on the basis that there would be an exceptional benefit to Australia if the applicant were permitted to remain. In the alternative, the representative and lawyer argued that the application of the relevant legislation had led to unfair or unreasonable results in his case.
[73] T1, f.162
113. However, given the wording of the relevant clause 186.235 and the relevant case law in Ma’s case and Nand’s case, the Tribunal cannot waive the requirements of this provision, or to take into account the matters raised by the applicant’s representative and lawyer. This remains so regardless of Mrs Lee’s plans not to reside in Australia, and her inability to access Medicare or the Pharmaceutical Benefits Scheme. The Tribunal also cannot take into account the applicant’s skills, talents, work ethic, the amount of time he has spent in Australia, his commitment and contribution to the Australian community in regional Western Australia, or the existence of any other potentially compassionate circumstances to find in his favour in relation to clause 186.235.
114. In relation to any referral to the Minister under section 351 of the Act, the Tribunal notes that the applicant’s representative and lawyer advised on 19 January 2018[74] that he did not wish to proceed with such a referral or application.
[74] T1, f.173
115. Nevertheless, the Tribunal has considered whether the circumstances of this case would mean it is appropriate to do so.
116. The Tribunal takes the issue of recommending the referral of any matter to the Minister seriously. It also notes that the theme running through the relevant Ministerial guidelines on this matter is that there will always be unusual or exceptional circumstances where intervention by the Minister to grant a visa is warranted, as this would align with Australian community expectations.
117. However, this also means that it is important to recognise that not every case is appropriate for referral, even where it may give rise to feelings of sympathy for the individuals concerned. This is because there are many applicants who fail to meet the legislative criteria for a visa and who, nevertheless, wish to remain permanently in Australia.
118. In considering whether to refer this particular case to the Minister, the Tribunal has had regard to the ‘Minister’s Guidelines on Ministerial Powers’. It notes that what is in the public interest is a matter for the Minister to determine. This will depend on various factors, which must be assessed by reference to the circumstances of the particular case.
119. As noted previously, the applicant provided the Tribunal with a copy of the primary decision record that set out the basis for the refusal of his visa application when he lodged his application for review on 13 June 2016. In addition, the applicant has been represented in relation to review by a registered migration agent since the application for review was lodged. As a result, the applicant has been aware of the basis for the refusal of his visa application for approximately 20 months at the time of the Tribunal’s decision.
120. The central issue in this case is whether a non-migrating member of the applicant’s family unit, his spouse (Mrs Lee), meets public interest criterion 4005 in Schedule 4 of the Regulations.
121. The Tribunal observes that the requirement for applicants and the members of their family unit (whether migrating or not) to meet to health criteria for permanent residence in Australia is a long-standing one. It applies across a range of visa classes, including Subclass 186, for public policy reasons. The health requirement is also one that has received bipartisan support from the Australian Parliament. As such, it seeks to address the general public expectation that governments will implement a migration program that recognises the public interest in protecting the Australian community from public health risks and significant imposts upon health resources in scarce supply.
122. Accordingly, the decision to admit a person to Australia where health criteria are not met is a complex and sensitive issue. Indeed, even where there is a discretion (such as in public interest criterion 4007) to waive the health requirements, the discretion is not cast in broad terms. In other words, the waiver is not enlivened simply once compassionate, compelling or humanitarian circumstances are identified in an applicant’s case.[75] If this had been the intention for such public interest criteria, then a discretion could easily have been drafted to achieve this for the purposes of public interest criterion 4005(1)(c).
[75] See public interest criterion 4007(2) for the purposes of public interest criterion 4007(1)(c)
123. As a result, given the wording of public interest criterion 4005, it is not surprising that applicants frequently seek to have their cases referred to the Minister under section 351 of the Act, where the Minister is able to exercise his discretion to grant a visa outside the legislative requirements set in the Act and Regulations.
124. In considering the issue of referral, the Tribunal is also aware that cases where an applicant, or a member of their family unit, does not meet the health criteria in Schedule 4 of the Regulations frequently attract both negative and positive media and / or public attention.
125. However, contrary to what is often assumed to be the case in respect of such reports, the health criteria in Schedule 4 are not directed at actively discriminating against individuals diagnosed with particular health conditions. Rather, they seek to recognise the reality that public health and medical resources are not boundless, and that expenditure on one person may mean that less is available for an existing Australian citizen or permanent resident who may require access to these same scarce resources in support of their own diagnosed condition.
126. Accordingly, the Tribunal recognises that where it will be appropriate to draw the figurative “line in the sand” will always be a question of fact that will elicit a range of views from different individuals.
127. In the present matter, the MOC and RMOC issued opinions on 23 December 2015 and 29 March 2017 respectively found that the applicant’s spouse did not satisfy public interest criterion 4005(1)(c)(ii)(A). The applicant has not made any further arrangements since March 2017 to obtain a further medical opinion from the MOC to the contrary.
128. In terms of the applicant’s circumstances in Australia, the Tribunal has taken into account the evidence set out in his visa application form that he has been employed with Maranel Pty Ltd as a baker since 30 October 2014.[76]
[76] D1, f.114: As the applicant gave this information in writing during the process that led to the decision under review it comes within the exception in subsection 359A(4)(ba) of the Act: See SZLYD v Minister for Immigration and Citizenship [2008] FMCA 805 at [30] and ADA15 v Minister for Immigration and Border Protection [2016] FCCA 291 at [5], which was upheld on appeal: ADA15 v Minister for Immigration and Border Protection [2016] FCA 634.
129. As a consequence, the Tribunal notes that the applicant has been present in Australia for several years. It therefore understands that the applicant may have a natural desire to remain in Australia permanently, if possible. The Tribunal also acknowledges that the applicant’s inability to do so is likely to affect him and his family overseas at a financial, emotional, social and / or personal level, and it does not seek to dismiss or diminish any concerns they may have about such these matters lightly.
130. On the other hand, the evidence before the Tribunal to support referral of this matter to the Minister under section 351 of the Act is somewhat limited.
131. The applicant’s first response (dated 14 July 2017[77]) to the Tribunal’s second section 359A letter (dated 3 July 2017[78]) referred to the applicant’s exceptional skills as an artisan head baker. It also outlined the difficulties his employer had in attracting and retaining a stable workforce to Rottnest Island. However, the applicant did not provide through his representative any supporting statements, evidence or other submissions from his employer, other work colleagues, or members of his local community to support these submissions.
[77] T1, f.162
[78] T1, f.156-161
132. On 16 January 2018, after setting out its preliminary views regarding the ‘unreasonable’ exception in subclause 186.235(3), the Tribunal invited the applicant to provide any further submissions and evidence he wanted the Tribunal to take into account for the purposes of any referral to the Minister. On 19 January 2018 the applicant’s representative and lawyer advised that he did not wish to proceed to with such an application the Minister and no further evidence or submissions were provided in support of such an application. The applicant also declined to appear before the Tribunal at a hearing scheduled for 22 February 2018, at which time such issues could have been explored with him.
133. Accordingly, the Tribunal has little in the way of current evidence before it regarding the applicant’s employment and the needs of his employer at the time of decision. There is also little to suggest what potential hardship the applicant might suffer if he were required to return to South Korea.
134. In any event, the Tribunal notes that the Ministerial guidelines do not focus on the economic or financial hardship non-citizens might face if they do not meet the criteria for the grant of a particular visa, and are then required to return to their country of origin. Rather, the emphasis in the Ministerial guidelines is on “strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit”.[79]
[79] Paragraph 4 of the ‘Minister’s Guidelines on Ministerial Powers’
135. Correspondingly, the Tribunal has considered the impact upon the applicant’s spouse, Mrs Lee. However, there is little in the evidence to suggest that there are compassionate circumstances regarding her age and / or health and / or psychological state that, if not recognised, would result in serious, ongoing and irreversible harm and continuing hardship to her if the applicant was not permitted to remain in Australia. There is also little in the evidence to suggest that the applicant’s family unit would be forced to break apart because one of its members was required to leave, whilst another was allowed to remain in Australia, if the applicant is not granted permanent residence to remain in Australia. Indeed, the grant of the visa is more likely to lead to this result, given Mrs Lee’s stated intention is to remain in South Korea.
136. In addition, there is no claim or any evidence before the Tribunal that if the applicant returns to South Korea he, or any member of his family, would face persecution, death, torture, cruel, inhuman or degrading treatment or punishment. As a result, there is little to suggest that Australia would be in breach of its international obligations pursuant to the Refugees Convention and the Refugees Protocol, Article 3 of the Convention on the Rights of the Child, the Convention Against Torture and Other Cruel Inhuman or degrading Treatment or Punishment, or the International Covenant on Civil and Political Rights.
137. The Tribunal has taken into account the representative’s and lawyer’s submission regarding Mrs Lee’s lack of entitlement to access Medicare and / or the Pharmaceutical Benefits Scheme, as well as their estimate regarding the likely cost of her health care needs for the next five years.
138. However, the Tribunal also observes that it is bound by the relevant MOC opinion before it and that this is not a case involving circumstances that the legislation does not anticipate. The requirement in subclause 186.235(3) for all non-migrating members of the applicant's family unit to meet public interest criterion 4005 unless it is unreasonable to require them to undergo the relevant assessment, has been deliberately included in the Regulations.
139. In that sense, this is not a case where there are clearly unintended consequences as a result of the operation of the legislation. The Tribunal also observes that the Courts settled the issue regarding the circumstances in which it could apply the ‘unreasonable’ exception approximately 20 years ago. As a result, clause 186.235 specifically contemplates that a Subclass 186 visa application may fail if the health requirement in public interest criterion 4005 is not met at the time the decision.
140. As a result, in terms of the evidence that has been presented to the Tribunal, there is little in the applicant’s current circumstances either on an individual or cumulative basis that brings him within the non-binding guidelines that apply for the purposes section 351 of the Act, or otherwise, to warrant referral to the Minister under the Act.
141. Accordingly, on balance, the Tribunal is not satisfied that the evidence before it is sufficient to establish a case that is particularly exceptional, unusual, compelling or compassionate in line with the relevant Ministerial guidelines to warrant referral to the Minister. Nor is it satisfied that this evidence indicates that the application of the relevant legislation has led to unfair or unreasonable results in this particular case. The Tribunal is also not satisfied that the evidence points to any circumstances outside the non-binding Ministerial guidelines that would point to such a referral being appropriate in this case.
142. Therefore, on the basis of the evidence that has been submitted to it, and for the reasons set out in this decision record, the Tribunal has decided not to refer the matter to the Minister under section 351 of the Act.
143. Nevertheless, the Tribunal notes that the applicant can still make a request directly to the Minister with additional evidence to support his claims for Ministerial intervention under section 351 of the Act should he choose to do so.
DECISION
144. The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) visa.
Danica Buljan
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.
See - Accessed 12 February 2018
- AGLC
- Choi (Migration) [2018] AATA 266
- Case
- [2018] AATA 266
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Tribunal was whether Mrs. Lee satisfied PIC 4005, as required by subclause 186.235(3) of the Migration Regulations 1994. Specifically, the Tribunal had to determine if Mrs. Lee was free from tuberculosis, free from a disease or condition that posed a threat to public health or danger to the Australian community, and free from a disease or condition that would likely result in significant costs to the Australian community for health or community services, or prejudice access to such services for Australian citizens or permanent residents.
The Tribunal reasoned that PIC 4005, in conjunction with regulation 2.25A, mandated seeking the opinion of a Medical Officer of the Commonwealth (MOC) unless specific exceptions applied. In this instance, the MOC had provided an opinion that Mrs. Lee did not meet the requirements of PIC 4005. The Tribunal affirmed the decision under review, concluding that Mrs. Lee did not satisfy the relevant health criteria, and therefore, Mr. Choi's visa application could not be approved.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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