Dang (Migration) - [2021] AATA 3718

Dang (Migration) [2021] AATA 3718 (13 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Thi Kim Ly Dang
Master Dang Gia Huy Nong
Mr Quay Hai Nong
CASE NUMBER:  2000737
HOME AFFAIRS REFERENCE(S):          BCC2013/1382574
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:John Cipolla
DATE:13 July 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for Employer Nomination (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 - Employer Nomination Scheme visa:
· PIC 4007(2)(b) for the purposes of cl 186.224(2) of Schedule 2 to the Regulations.

Statement made on 13 July 2021 at 1:36pm
CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Federal Court remittal – failure to disclose the existence of a non-disclosure certificate – Hairdresser – health criteria – applicant’s son – Down Syndrome – MOC opinion – cost of special education services – costs for state disability services – waiver of requirement – ‘undue costs’ – final year of high school – asset position – skills and qualifications – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.25A; Schedule 2, cl 186.224; Schedule 4, PIC 4007
CASES
Bui v MIMA (1999) 85 FCR 134
Ramlu v MIMIA [2005] FMCA 1735
Robinson v MIMIA (2005) 148 FCR 182
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of decisions made by a delegate of the Minister for Immigration and Border Protection on 5 November 2014 to refuse to grant the applicants Employer Nomination (Permanent) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicants applied for the visas on 3 September 2013. The delegate refused to grant the visa as the first named applicant (hereinafter referred to as the applicant) did not satisfy cl 186.224 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the health criteria in Public Interest Criterion (PIC) 4007 of Schedule 4 to the Regulations was not met.
The applicants were represented in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the applicant meets PIC 4007 as required by the criteria for the grant of the visa. PIC 4007, as it applies to this case, is extracted in the attachment to this decision. It requires the applicant, in certain circumstances, to undergo medical assessment, and to be free of certain diseases or conditions that may impact on the community. This last requirement may be waived in certain circumstances.
BACKGROUND TO REVIEW APPLICATION
The applicant, Mrs Thi Kim Li Dang, has been in Australia for an extended period. She completed studies as a Hairdresser in Australia. She was sponsored for a Subclass 186 visa by Stephanie Nung, to work as a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dang (Migration)

Details

AGLC: Dang (Migration) [2021] AATA 3718
Case: [2021] AATA 3718
Decision Date: 13 July 2021

CaseChat Overview and Summary

This matter concerned an application for a Subclass 186 Employer Nomination (Permanent) visa by Mrs Thi Kim Li Dang, sponsored by Stephanie Nung to work as a Hairdresser. The application included Mrs Dang's husband and son, Dang Gia Huy Nong (Nino). The central dispute revolved around whether Nino met the health criteria under Public Interest Criterion (PIC) 4007, specifically PIC 4007(1)(c), which requires an applicant to be free from a disease or condition that would likely result in significant costs to the Australian community through healthcare or community services, or prejudice access to such services for other Australians. The delegate and a previous iteration of the Tribunal had determined that Nino, who has Down Syndrome, did not meet this criterion, and that a waiver under PIC 4007(2)(b) should not be granted due to the projected lifetime cost of his care, estimated at $3.2 million. The applicant had also argued that a prior Federal Circuit Court decision dismissing her judicial review application was infected by jurisdictional error, including the failure to disclose a non-disclosure certificate.

The court was required to determine whether the applicant met PIC 4007, and if not, whether the waiver provision under PIC 4007(2)(b) should have been applied. This involved assessing whether the projected costs of Nino's care would constitute an "undue cost" to the Australian community, as contemplated by the regulations. The court also considered arguments regarding jurisdictional error in previous decisions.

The court reasoned that the previous Tribunal had erred in its assessment of the waiver provision. While acknowledging the significant projected costs, the court found that the Tribunal had not adequately considered the specific circumstances and the potential for the waiver to be granted. The court noted that the applicant had met all other criteria for the visa. Consequently, the court remitted the application for reconsideration by the Minister, directing that the first applicant, Mrs Dang, be considered to meet PIC 4007(2)(b) for the purposes of clause 186.224(2) of the Regulations. This effectively meant that the waiver was to be granted, allowing the application to proceed to the consideration of remaining visa criteria.

Orders

Orders of the court

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Background

Background to the litigation

The issue in this review is whether the applicant meets PIC 4007 as required by the criteria for the grant of the visa. PIC 4007, as it applies to this case, is extracted in the attachment to this decision. It requires the applicant, in certain circumstances, to undergo medical assessment, and to be free of certain diseases or conditions that may impact on the community. This last requirement may be waived in certain circumstances. BACKGROUND TO REVIEW APPLICATION The applicant, Mrs Thi Kim Li Dang, has been in Australia for an extended period. She completed studies as a Hairdresser in Australia. She was sponsored for a Subclass 186 visa by Stephanie Nung, to work as a Hairdresser, ANZSCO 391111, in an application that was made to the Department on 3 September 2013. Included in her application was her husband, Mr Quay Hai Nong, who has worked in the travel industry in Australia, and her son, Dang Gia Huy Nong (known as Nino). Under cl 186.224 of the Regulations, the applicant, and each member of the family unit of the applicant who is an applicant for a Subclass 186 visa, is required to satisfy PIC 4007. If one member of the family unit fails to meet 4007 the application for the visas fails on that basis. As noted, the requirement may be waived in certain circumstances. At the time of the Departmental decision on 5 November 2014, the Departmental delegate noted that the applicant’s son was assessed by a Medical Officer of the Commonwealth (MOC) as not meeting the requirements of cl 4007(1)(c). The reason for this was that the applicant’s son has Down Syndrome and that the cost of his future care would result in an undue cost to the Australian community. The delegate proceeded to conclude that the requirements of 4007(1)(c) should not be waived, as granting a waiver in this case would result in an undue cost to the Australian community. The delegate concluded that cl 186.224 and cl 186.311 of Schedule 2 was not able to be met by the applicants. On 26 October 2015, the Tribunal, differently constituted, affirmed the decision under review. The MOC’s opinion at this time determined that the cost to the taxpayer of Nino’s care would be $3.2 million over his lifetime. The previously constituted Tribunal concluded on balance that the granting of the visa would not be unlikely to result in undue cost to the Australian community and was not satisfied that the granting of the visa would be unlikely to result in undue cost or undue prejudice within the terms of PIC 4007(2)(b). The Tribunal determined that PIC 4007(1)(c) should not be waived. On 27 February 2019, the Federal Circuit Court (FCC) dismissed a judicial review application. The applicant argued that the first Tribunal decision was infected by jurisdictional error and further, that an application for judicial review should be allowed to be lodged out of time. Additional arguments were put forward that a judicial review application was not lodged due to erroneous advice of the acting migration agents at the time, and that the review decision was infected by jurisdictional error due to the failure of the previously constituted Tribunal to disclose the existence of a nondisclosure certificate issued under s 375A of the Act.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this review is whether the applicant meets PIC 4007 as required by the criteria for the grant of the visa. PIC 4007, as it applies to this case, is extracted in the attachment to this decision. It requires the applicant, in certain circumstances, to undergo medical assessment, and to be free of certain diseases or conditions that may impact on the community. This last requirement may be waived in certain circumstances. BACKGROUND TO REVIEW APPLICATION The applicant, Mrs Thi Kim Li Dang, has been in Australia for an extended period. She completed studies as a Hairdresser in Australia. She was sponsored for a Subclass 186 visa by Stephanie Nung, to work as a Hairdresser, ANZSCO 391111, in an application that was made to the Department on 3 September 2013. Included in her application was her husband, Mr Quay Hai Nong, who has worked in the travel industry in Australia, and her son, Dang Gia Huy Nong (known as Nino). Under cl 186.224 of the Regulations, the applicant, and each member of the family unit of the applicant who is an applicant for a Subclass 186 visa, is required to satisfy PIC 4007. If one member of the family unit fails to meet 4007 the application for the visas fails on that basis. As noted, the requirement may be waived in certain circumstances. At the time of the Departmental decision on 5 November 2014, the Departmental delegate noted that the applicant’s son was assessed by a Medical Officer of the Commonwealth (MOC) as not meeting the requirements of cl 4007(1)(c). The reason for this was that the applicant’s son has Down Syndrome and that the cost of his future care would result in an undue cost to the Australian community. The delegate proceeded to conclude that the requirements of 4007(1)(c) should not be waived, as granting a waiver in this case would result in an undue cost to the Australian community. The delegate concluded that cl 186.224 and cl 186.311 of Schedule 2 was not able to be met by the applicants. On 26 October 2015, the Tribunal, differently constituted, affirmed the decision under review. The MOC’s opinion at this time determined that the cost to the taxpayer of Nino’s care would be $3.2 million over his lifetime. The previously constituted Tribunal concluded on balance that the granting of the visa would not be unlikely to result in undue cost to the Australian community and was not satisfied that the granting of the visa would be unlikely to result in undue cost or undue prejudice within the terms of PIC 4007(2)(b). The Tribunal determined that PIC 4007(1)(c) should not be waived. On 27 February 2019, the Federal Circuit Court (FCC) dismissed a judicial review application. The applicant argued that the first Tribunal decision was infected by jurisdictional error and further, that an application for judicial review should be allowed to be lodged out of time. Additional arguments were put forward that a judicial review application was not lodged due to erroneous advice of the acting migration agents at the time, and that the review decision was infected by jurisdictional error due to the failure of the previously constituted Tribunal to disclose the existence of a nondisclosure certificate issued under s 375A of the Act.

Decision

Reasons for decision

Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for the visa.DECISION The Tribunal remits the application for Employer Nomination (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 Employer Nomination Scheme visa:·PIC 4007(2)(b) for the purposes of cl 186.224(2) of Schedule 2 to the Regulations.John CipollaSenior MemberATTACHMENTMigration Regulations 1994Schedule 44007(1) The applicant:(aa) if the applicant is in a class of persons specified by the Minister in an instrument in writing for this paragraph:(i)must undertake any medical assessment specified in the instrument; and(ii)must be assessed by the person specified in the instrument;unless a Medical Officer of the Commonwealth decides otherwise; and(ab) must comply with any request by a Medical Officer of the Commonwealth to undertake a medical assessment; and(a) is free from tuberculosis; and(b) is free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community; and(c) subject to subclause (2) — is free from a disease or condition in relation to which:(i)a person who has it would be likely to:(A)require health care or community services; or(B)meet the medical criteria for the provision of a community service;during the period described in subclause (1A); and(ii)the provision of the health care or community services would be likely to:(A)result in a significant cost to the Australian community in the areas of health care and community services; or(B)prejudice the access of an Australian citizen or permanent resident to health care or community services;regardless of whether the health care or community services will actually be used in connection with the applicant; and(d) if the applicant is a person from whom a Medical Officer of the Commonwealth has requested a signed undertaking to present himself or herself to a health authority in the State or Territory of intended residence in Australia for a follow-up medical assessment — has provided the undertaking.(1A)For subparagraph (1)(c)(i), the period is:(a) for an application for a permanent visa — the period commencing when the application is made; or(b) for an application for a temporary visa:(i)the period for which the Minister intends to grant the visa; or(ii)if the visa is of a subclass specified by the Minister in an instrument in writing for this subparagraph — the period commencing when the application is made.(1B)If:(a) the applicant applies for a temporary visa; and(b) the subclass being applied for is not specified by the Minister in an instrument in writing made for subparagraph (1A)(b)(ii);the reference in sub-subparagraph (1)(c)(ii)(A) to health care and community services does not include the health care and community services specified by the Minister in an instrument in writing made for this subclause.(2)The Minister may waive the requirements of paragraph (1)(c) if.(a) the applicant satisfies all other criteria for the grant of the visa applied for; and(b) the Minister is satisfied that the granting of the visa would be unlikely to result in:(i)undue cost to the Australian community; or(ii)undue prejudice to the access to health care or community services of an Australian citizen or permanent resident.

Ratio Decidendi

Legal Principle Established

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