Colgan (Migration)

[2019] AATA 3051

Colgan (Migration) [2019] AATA 3051 (3 May 2019)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Keith Colgan
Mrs Gillian Colgan
Master Sean Colgan
Ms Sarah Colgan

CASE NUMBER:  1718263

DIBP REFERENCE(S):  BCC2015/1880294

MEMBER:Michelle East

DATE:3 May 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicants’ Regional Employer Nomination (Permanent) visas.

Statement made on 03 May 2019 at 2:22pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) visa – Subclass 187 – health criteria – secondary applicant does not meet health criteria – tribunal has no discretion to waive requirement – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994, Schedule 2, cl 187.235(2), Schedule 4, Public Interest Criterion (‘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 decisions made by a delegate of the Minister for Immigration on 4 August 2017 to refuse to grant the applicants Regional Employer Nomination (Permanent) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 30 June 2015. The delegate refused to grant the visa on the basis that the first named applicant (now referred to as 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 by the child member of his family unit and therefore the applicant did not satisfy cl.187.235(2).

3. All the applicants appeared before the Tribunal on 11 April 2019 to give evidence and present arguments.  The Tribunal didn’t hear evidence from Ms Sarah Colgan.

4. The applicants were represented in relation to the review by their registered migration agent.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 has a child member of his family unit, Master Sean Colgan who must satisfy cl.187.235(2) in respect of the health criteria for PIC 4005.

7. A Medical Officer of the Commonwealth (MOC) has provided an updated report dated 5 February 2019 stating that Master Colgan did not satisfy PIC 4005(1)(c)(ii)(A) because he has ‘Mild cystic fibrosis’ and will require long term specialist health care services, including but not limited to regular medical review and pharmaceutical therapy. 

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

8. 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.

9. 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).

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

11. 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?

12. 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.

13. Prior to the hearing the Tribunal had regard to the MOC opinions which were available on the Department’s file.  On 21 December 2016 a MOC provided a Form 884: Opinion of a Medical Officer of the Commonwealth.  In that report, the MOC stated Master Colgan has ‘mild cystic fibrosis’ and will likely require medical services and organ transplants.  A further MOC opinion was provided on 15 December 2017 confirming the diagnosis and stating that the services required would likely include medical services.

14. At the hearing the applicants’ representative provided further MOC opinions that had been obtained prior to the delegate’s decision.  These were dated 15 February 2017, 20 June 2016 and 14 January 2016.  The Tribunal has carefully considered all the documents provided to it.

15. In anticipation of the hearing, the Tribunal wrote to the applicants giving them the opportunity to obtain a further MOC opinion in respect of Master Colgan. 

16. A further MOC opinion was provided on 5 February 2019.  That opinion states Master Colgan does not satisfy PIC 4005(1)(c)(ii)(A) in Schedule 4 of the Regulations.  The condition identified is ‘mild cystic fibrosis’.  The MOC states: ‘the applicant has a mild form of cystic fibrosis which has responded well to pharmacotherapy.  Provision of services to a hypothetical person in Australia with the same condition as the applicant, at the same severity : a hypothetical person in Australia with the same condition as the applicant, at the same severity, would be likely to require long term specialist health care services, including but not limited to regular medical review and pharmaceutical therapy.  This condition is likely to be permanent’.

17. The MOC indicated that, in preparing the opinion, regard was had to information available to 5 February 2019 and includes the ‘panel physician examination of 8 July 2015; reports from Dr Puvvadi (21 July 2015), Dr A Wilson (10 December 2015, 12 May 2016 and two reports dated 20 August 2016), Dr Clements (14 December 2015); and spirometry, lung volume and FEV1(trend to 9 July 2015) test results’.  Finally, the opinion notes the MOC’s position number and states the officer is ‘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.’ The Tribunal is satisfied the MOC applied the correct test.

18. The Tribunal is of the opinion that the MOC opinion is valid and is therefore bound to have regard to it, with no discretion to waive the requirements of PIC 4005.

19. Based on the opinion of the MOC dated 5 February 2019, the Tribunal finds that a member of Mr Colgan’s migrating family unit, his 18 year old son, does not satisfy PIC 4005(1)(c)(ii)(A) of Schedule 4 of the Regulations. It follows that he is not able to meet cl.187.235(2) of the Regulations which is a requirement for grant of the visa. Therefore, the Tribunal finds Mr Colgan does not meet cl.187.235 of the Regulations.

20. The Tribunal has significant sympathy for Mr Colgan and his family.  By all accounts Sean Colgan is living well with his condition of cystic fibrosis.  The family have settled in Australia and have made significant contributions to our society.  It is unfortunate that the Tribunal does not have the discretion to waive the requirements of the legislation in this particular instance.

21. Mr Colgan has only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry 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 Direct Entry stream have not been met, the decision under review must be affirmed.

    DECISION

22. The Tribunal affirms the decision not to grant the applicants’ Regional Employer Nomination (Permanent) visas.

    Michelle East
    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.