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

1. 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).

2. 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.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this review is whether the 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

6. 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).

7. 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.

8. 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.

9. 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.

10. 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.

11. Before the FCC and on appeal, the appellant contended, amongst other things, that the Tribunal’s failure to disclose the s 375A certificate was procedurally unfair because it prevented access to the information that had been used to determine the cost to the Australian community. The FCC did not find any jurisdictional error on this basis and concluded that even if the appellant had the breakdown information and provided submissions pertaining to it, it would not have made any difference to the final outcome.

12. This decision was the subject of an appeal to the Federal Court with the Federal Court determining as follows:

    The ground of appeal was made out demonstrating jurisdictional error in the Tribunal’s decision. The process in the Tribunal was procedurally unfair because there was no disclosure that the Minister had issued a certificate under s.375A preventing access to the information that had been used to determine the costs to the Australian community that were said to be likely for a person with the same condition as the appellant’s son. The Tribunal was not bound to treat the matters stated in the July Report as correct. It was just part of the material that might be considered in deciding whether to waive the requirements in cl.4007(1)(c). There was a realistic possibility that disclosure of the certificate would have led to scrutiny and production of documents that would have opened up possibilities that could realistically have resulted in a different outcome.

13. The current review before this Tribunal was initially set down for hearing on 27 August 2020.

14. On 3 August 2020 there was a request from the applicant’s representative. The request noted that the MOC opinion was out of date and that the policy relating to the assessment of costs associated with meeting the health requirement had changed significantly since the last MOC opinion had been obtained. The representative sought review of the MOC opinion and access under Freedom of Information to all the documents before the Tribunal, which was duly granted.

15. On 20 August 2020 evidence was provided to the Tribunal which indicated that the fee for a Review Medical Officer of the Commonwealth (RMOC review) had been paid by the applicant on 11 August 2020. The scheduled hearing was postponed to enable an RMOC opinion to be provided.

16. An RMOC opinion was provided on 9 September 2020. The RMOC applied the policy changes applicable to health criteria considerations from 1 July 2019. The RMOC concluded that “in my opinion, granting a visa to the above applicant for the assessed period of stay would not be likely to prejudice the access of an Australian citizen or permanent resident to health care or community services.”  

17. However, the RMOC concluded further that the applicant did not meet the requirements of PIC 4007(1)(c)(ii)(A) in Schedule 4 to the Regulations on the following basis:

    The applicant is a 17 year old person with:

    - Mild Down syndrome.

    Form and severity of the applicant's condition: the applicant has mild functional and cognitive impairment due to Down syndrome. In line with PIC 4007(1A)(a), the applicant was assessed as a hypothetical 10 year old person to reflect age at the time of the visa application. The applicant is independent with activities of daily living, however, requires support services, in particular regarding lifestyle and school education. Provision of services to a hypothetical person with the applicant's condition: A hypothetical person in Australia with the same condition as the applicant, at the same severity, would be likely to require ongoing support including but not limited to special education services. This condition is likely to be Permanent.

    .

    I consider that a hypothetical person with this disease or condition, at the same severity as the applicant, would be likely to require health care or community services during the period specified above.

    These services would be likely to include:

    Special education services

    Provision of these health care and/or community services would be likely to result in a significant cost to the Australian community in the areas of health care and/or community services.

18. The RMOC concluded that the cost of education services to the applicant’s son consisting of Commonwealth disability services of $265,556, State disability services of $140,000 and special education services of $371,000, totalled $774,536.

19. On 8 April 2021 the Tribunal, having determined that the s 375A certificate attached to the Departmental file was invalid, released both the certificate and the information the subject of the certificate to the applicant’s representative.

20. A response to the updated RMOC opinion was not provided until 16 April 2021 due to the representative being on a period of extended leave. The submission of 16 April 2021 sought that the RMOC opinion be returned to the MOC for review and assessment according to current law on the basis that the opinion was not made according to law, and did not take into account the costs for state disability services reflected in the April 2020 policy changes. This response from the applicant’s representative was then forwarded to the Department to be referred for reconsideration by an appropriate MOC.

21. On 20 May 2021 the Tribunal was advised by the Department that the health case had now been reassessed by a MOC who had provided a new opinion in relation to the health requirement applying the relevant policy considerations. The 19 May 2021 MOC review concluded that the grant of the visa would not be likely to prejudice the access of an Australian citizen or permanent resident to health care or community services, however, that the provision of special education services would be likely to result in a significant cost to the Australian community in the area of health care or community services. Further, it concluded that these costs over Nino’s lifetime would be $195,160.

22. On 20 May 2021 the Tribunal sent the applicant through her representative a s 359A letter inviting comment on the adverse MOC opinion of 19 May 2021.

23. On 24 May 2021 the applicant’s representative sought a breakdown of how the costs of the $195,160 were arrived at before they provided a response to the s 359A letter.

24. The Tribunal concluded that because of the significant effluxion of time in this review that this issue and other issues pertaining to the review would be best discussed at a review hearing. A hearing was scheduled for 19 July 2021.

25. Prior to the scheduled hearing the Tribunal received a pre-hearing submission from the applicant’s representative dated 1 July 2021 addressing why PIC 4007(1)(c)(ii)(A) should be waived in this case and suggesting that the Tribunal could give consideration to making a decision on the papers based on the evidence and submissions provided to it. 

26. The applicant’s representative noted that the costs had been calculated by the MOC on the basis of the hypothetical 10 year old child with 9 years of schooling ahead of them to age 18.

27. The submission noted, in respect of this calculation, the following:

    We therefore assume the annual cost attributed to the hypothetical person in the Review Opinion is  as follows:

    
    

    Service                Cost over nine years   Cost per annum

    
    Education support         $195,160                $21,684

    The latest version of Notes for Guidance for Disability, dated March 2021, costs education services for students with disabilities according to level of need, and ranges from $7,638 per annum (level 1) for students with the lowest support needs, to $58,294 per annum (level 6) for students with the most profound disabilities.

    A figure of $21,684 per annum falls between level 2 and level 3, and indicates a student with mild to moderate education support needs.

    This is in line with the Review Opinion's assessment of Nino as having a mild cognitive impairment and with full capacity for activities of daily living.

    As the Review Opinion notes, Nino has failed to satisfy sub-subparagraph PIC 4007(1)(c)(ii)(A) in Schedule 4 to the Regulations.

    Paragraph PIC 4007(2) in Schedule 4 to the Regulations (PIC 4007) notes that the Minister may waive the requirements of paragraph (1)(cl 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.

    The MOC found no evidence of prejudice to access of an Australian citizen or permanent resident to health care or community services. ²

    There is no evidence that the applicant does not satisfy all other criteria for the grant of the visa applied for.

    Consequently, in line with PIC 4007 (2)(b),  the Minister needs to be satisfied that the granting of the visa would be unlikely to result in undue cost to the Australian community in order to waive paragraph (1)(c) of PIC 4007.

    Nino is now 17 years old and is attending Marnebek School in Cranbourne, Melbourne, at his parents' expense. He attended Noble Park Secondary College, a regular secondary school, from Year 7, where he was mainstreamed. Marnebek School works with students on preparation for employment and focuses on life skills. His parents elected to send him there at their expense to complete his education, as his mainstream teachers at Noble Park suggested a final school year at Marnebek would better prepare him for future independence.

    Nino now has only two terms of education to complete.

    Nina's (sic) costs, assessed over the appropriate period from the date of application for the visa, namely ten years, amount to $195,160, which exceeds the 'significant cost' threshold of $49,000. Therefore, he failed to meet the health requirement as set out at PIC 4007.

    However, the only cost which can actually accrue in the event of the grant of the visa is for the half year of secondary education which remains to him.

    On the basis of the Review Opinion's assessment of Nina's (sic) costs, as discussed above, his costs for two terms, or half a year, amount to half of $21,684, namely $10,842.

    Policy states that

    Although 'undue' is not defined in migration law, the dictionary definition of undue is "unwarranted; excessive; too great", and a broad range of discretionary considerations may be taken into account in determining whether costs or prejudice to access are 'undue'.

    Since the costs which could arise as a result of the grant of the visa in Nina's (sic) circumstances fall well below the 'significant cost threshold', they cannot be considered to be 'undue' in his particular circumstances.

    In line with PIC 4007 (2)(b), the Minister can be satisfied that the granting of Nina's visa would be unlikely to result in undue cost to the Australian community.

    We therefore consider that Nino meets the requirements of PIC 4007 (2)(b) and request that the waiver be granted on the papers.

    Is the applicant free from the relevant diseases or conditions (PIC 4007(1)(a), (b), (c))?

28. Clauses 4007(1)(a) and (b) require the applicant to be free from tuberculosis and free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community.

29. Clause 4007(1)(c) requires the applicant be free from a disease or condition which would be likely to require health care or community services or which would meet the medical criteria for provision of a community service during the specified period, and provision of the health care or community services (regardless of whether it will actually be used in connection with the applicant) would be likely to: result in a significant cost to the Australian community in the areas of health care and community services; or prejudice access of an Australian citizen or permanent resident to health care or community services.

30. For specified temporary visas, certain specified health care and community services are excluded from this consideration: PIC 4007(1B). The requirement may also be waived in certain circumstances.

31. As the applicant in this case has applied for a permanent visa, the exemption provision in PIC 4007(1B) does not apply.

32. In determining whether a person meets PIC 4007(1)(a), (b) or (c), reg 2.25A requires the Tribunal to seek the opinion of a 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 to be correct: reg 2.25A(3).

33. 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.

34. There have been a number of assessments of Nino made by a MOC or RMOC over time. The Tribunal must have regard to the most recent assessment, and the outcome of that assessment, dated 19 May 2021, is that the applicant does not meet the health requirement. The MOC estimated that the cost to the Australian community of the services identified in the assessment (special education services) is likely to be $195,160. This is significantly less than the amounts estimated in the previous MOC and RMOC assessments and is clearly reflective of a change in Departmental Guidelines which have occurred since the visa application was lodged in 2013 with regard to the assessment of the period over which the relevant costs are to be calculated.

35. The Tribunal is satisfied that in this case the MOC opinion of 19 May 2021 has identified the medical condition to which the public interest criterion has been applied, and the form or level of the condition suffered by the applicant, namely Down Syndrome. Further, the MOC has applied statutory criteria by reference to a hypothetical person who suffers from that level or form of the condition. The Tribunal is satisfied therefore that the MOC has applied the correct test in forming the opinion that the applicant does not meet the health requirement, specifically PIC 4007(1)(c)(ii)(A).

1. Accordingly, based on the opinion of the MOC, the applicant does not satisfy PIC 4007(1)(c).

   Should the requirements of PIC 4007(1)(c) be waived?

2. The requirement in PIC 4007(1)(c) to be free of a disease or condition that would impact on health or community services, may be waived if, among other things, the decision maker is satisfied that the granting of the visa would be unlikely to result in either ‘undue cost’ to the Australian community or ‘undue prejudice’ to the access to health care or community services of an Australian citizen or permanent resident: 4007(2).

3. The evaluative judgment of whether the cost to the Australian community or prejudice to others is ‘undue’ may import considerations of compassionate or other circumstances: Bui v MIMA (1999) 85 FCR 134 (Bui) at 47. Over and above the consideration of the likelihood that cost or prejudice will be ‘undue’ there is also the discretionary element of the ministerial waiver. And within that discretion, compassionate circumstances or compelling circumstances may be relevant: Bui at 47. Department policy provides guidance on factors that may be relevant to this, including: the need for, and availability of, a live organ donor; an ability to access private health treatment; close family, social, emotional and community ties to Australia; the impact on any Australian citizen minor children; occupational skills of the applicant or family members; and the potential contribution to Australia by the applicant or family members.

4. The Tribunal accepts the MOC's assessment that the granting of a visa to Nino for the assessed period of stay would not be likely to prejudice access to health care or community services for an Australian citizen or permanent resident. The Tribunal therefore accepts that there is no undue prejudice in this case.

5. In relation to undue costs, it is not disputed that the MOC's assessed costs of $195,160 exceed the amount of $49,000 set out in the Department's policy guidelines on 'significant costs’ for the purposes of PIC 4007(1)(c). The Tribunal therefore turns to consider whether they are 'undue costs’ or not.

6. The Tribunal has had regard to the submission of 1 July 2021. That submission notes that the undue costs identified by the MOC pertained to special education support of $195,160. These costs have been calculated on the basis of the hypothetical 10 year old child with schooling ahead of them to aged 18 (a total of 8 years and not 9 as stated in the submission of 1 July 2021). Thus, the annual cost for the balance of the hypothetical 10 year old child’s education is $24,395 per annum.

7. The Tribunal accepts based on the evidence before it that the figure of $24,395 per annum falls between levels 2 and levels 3, indicative of a child with mild to moderate educational support needs.

8. The evidence before the Tribunal indicates that Nino is now in his final year of high school and has only 6 months before his secondary schooling is completed. Having regard to the annualised costs of $24,395 per annum the remainder of these costs are only $12,197.50.

9. The Tribunal agrees with the submission that these costs fall well below the significant cost threshold and that they are not undue.

10. The evidence before the Tribunal further indicates that the applicant and her husband have a sound asset position and that they provide any necessary financial support to their son. The evidence indicates that the applicant has acquired a range of skills in Australia including hairdressing, hairdressing salon management, management and computer science and she has also completed a Bachelor of English. Her husband has worked extensively as a travel consultant in Australia and is fluent in 4 languages. The evidence indicates that the applicant and her husband had been precluded from working from 2016 to 2020 due to the imposition of a Bridging E visa with no work rights, however, they were granted work rights in February 2021. The evidence indicates that hairdressing, in terms of skills shortages, is an occupation in demand across all Australian states. In terms of accumulated assets in Australia the applicant and her husband own a residential property in Victoria outright, with a current value of between $550,000-600,000. They have managed to retain savings of $53,000. They have accumulated superannuation and they have around $120,000 in cash assets that they have accumulated in Vietnam. The applicant and her husband during the extended period with no work rights were able to realise rental of AUD$17,000 from rental properties they own in Vietnam. They also have had access to a re-draw facility attached to their Australian residential property.  Thus, in the view of the Tribunal any undue cost argument is further mitigated by the skills and qualifications of the applicant and her husband and their financial assets in terms of cash and real property both in Australia and in Vietnam.

11. In a submission received by the Tribunal dated 12 July 2021 the applicant’s representative has provided evidence pertaining to the applicant, her husband and Nino’s close community ties in Australia. Evidence has also been provided pertaining to the significant volunteering the applicant has undertaken in the community and the value that has been attributed to that volunteering. 

12. For the reasons above, the Tribunal is satisfied that the costs in this case of education support are not undue. Accordingly, the Tribunal finds that the granting of the visa would be unlikely to result in undue cost or undue prejudice within the terms of PIC4007(2)(b). Therefore, PIC 4007(1)(c) may be waived subject to the applicant satisfying all other requirements for the visa.

13. 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

14. 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 Cipolla

    
    

    Senior Member

    ATTACHMENT

    Migration Regulations 1994

    Schedule 4

    4007(1)      The applicant:

    (aa)     if the applicant is in a class of persons specified by the Minister in an instrument in writing for this paragraph:

    (i)must undertake any medical assessment specified in the instrument; and

    (ii)must be assessed by the person specified in the instrument;

    unless a Medical Officer of the Commonwealth decides otherwise; and

    (ab)     must comply with any request by a Medical Officer of the Commonwealth to undertake a medical assessment; and

    (a)     is free from tuberculosis; and

    (b)     is free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community; and

    (c)      subject to subclause (2) — is free from a disease or condition in relation to which:

    (i)a person who has it would be likely to:

    (A)require health care or community services; or

    (B)meet the medical criteria for the provision of a community service;

    during the period described in subclause (1A); and

    (ii)the provision of the health care or community services would be likely to:

    (A)result in a significant cost to the Australian community in the areas of health care and community services; or

    (B)prejudice the access of an Australian citizen or permanent resident to health care or community services;

    regardless of whether the health care or community services will actually be used in connection with the applicant; and

    (d)     if the applicant is a person from whom a Medical Officer of the Commonwealth has requested a signed undertaking to present himself or herself to a health authority in the State or Territory of intended residence in Australia for a follow-up medical assessment — has provided the undertaking.

    (1A)For subparagraph (1)(c)(i), the period is:

    (a)     for an application for a permanent visa — the period commencing when the application is made; or

    (b)     for an application for a temporary visa:

    (i)the period for which the Minister intends to grant the visa; or

    (ii)if the visa is of a subclass specified by the Minister in an instrument in writing for this subparagraph — the period commencing when the application is made.

    (1B)If:

    (a)     the applicant applies for a temporary visa; and

    (b)     the subclass being applied for is not specified by the Minister in an instrument in writing made for subparagraph (1A)(b)(ii);

    the reference in sub-subparagraph (1)(c)(ii)(A) to health care and community services does not include the health care and community services specified by the Minister in an instrument in writing made for this subclause.

    (2)The Minister may waive the requirements of paragraph (1)(c) if.

    (a)     the applicant satisfies all other criteria for the grant of the visa applied for; and

    (b)     the Minister is satisfied that the granting of the visa would be unlikely to result in:

    (i)undue cost to the Australian community; or

    (ii)undue prejudice to the access to health care or community services of an Australian citizen or permanent resident.