DAVID (Migration) - [2019] AATA 2814

DAVID (Migration) [2019] AATA 2814 (28 February 2019)
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DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Dr Edward III Roque DAVID
Mrs Maria Etheliori Mariano David
Mr Miguel Mariano David
Ms Gabrielle Therese DAVID
CASE NUMBER:  1609989
DIBP REFERENCE(S):  BCC2014/3143349
COUNTRY OF REFERENCE:                  Philippines
MEMBER:Penelope Hunter
DATE:28 February 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for Employer Nomination (Permanent) visas for reconsideration, with the direction that the third named applicant, Miguel Mariano David, meets the following criteria for a Subclass 186 - Employer Nomination Scheme visa:
·PIC 4007(2)(b) for the purposes of cl.186.224 of Schedule 2 to the Regulations.

Statement made on 28 February 2019 at 4:55pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) visa – Subclass 186 Employer Nomination Scheme – health criteria – permanent visa application – son does not meet health criteria – applicant registered as medical practitioner with the Medical Board of Australia – skill shortage of medical practitioners – high income earner able to meet costs of son’s care – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994, Schedule 2, cl.186.224, Schedule 4, PIC 4007(2)(b), r 2.25A
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 on 29 June 2016 to refuse to grant the applicants Employer Nomination (Permanent) visas under s.65 of the Migration Act 1958 (the Act).
The visa applicants applied for the visas on 21 November 2014. The delegate refused to grant the visa as the first named applicant (now referred to as the applicant) did not satisfy cl.186.224(2) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4007 of Schedule 4 to the Regulations was not met by each member of the family unit of the applicant.
The first, second and third named applicants appeared before the Tribunal on 21 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Angela Murphy.
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.
Background
The applicant was a primary visa applicant for the grant of a subclass 186 Employer Nomination Scheme visa. The second named visa applicant is the wife of the applicant (applicant wife) and that the third main visa applicant is the son of the applicant (applicant son), the fourth named visa applicant is the daughter of the applicant (applicant daughter). The applicant wife, applicant son and applicant daughter have been included in the application as a member of the family unit of the applicant.
As part of the assessment for the grant of the visa all applicants were required to be assessed by the…

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.

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Details

Case: [2019] AATA 2814
Decision Date: 28 February 2019

CaseChat Overview and Summary

This matter concerned an application for an Employer Nomination (Permanent) visa, Subclass 186, by the applicant, David. The central dispute revolved around whether the applicant's son met the health criteria, specifically Public Interest Criterion (PIC) 4007, as required for the permanent visa. The decision was made by Penelope Hunter, a Member of the Tribunal.

The legal issues before the Tribunal were whether the applicant's son was free from tuberculosis, free from a disease or condition that posed a threat to public health or the Australian community, and free from a disease or condition that would likely require significant health care or community services, resulting in substantial cost to the Australian community or prejudice to the access of Australian citizens or permanent residents to such services. The Tribunal also considered whether the waiver provisions under PIC 4007(2) were applicable.

The Tribunal reasoned that while the applicant's son had been assessed as having moderate intellectual impairment, the specific requirements of PIC 4007(1)(a), (b), and (c) needed to be addressed. Crucially, the Tribunal noted that for permanent visa applications, the exemption in PIC 4007(1B) did not apply. The Tribunal found that the applicant's son met PIC 4007(2)(b) for the purposes of clause 186.224 of Schedule 2 to the Regulations, which relates to the waiver of health requirements.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the third applicant, Miguel Mariano David, met the specified criteria under PIC 4007(2)(b). The Tribunal indicated that the other visa applicants had met PIC 4007, and the Minister was to consider the remaining criteria for the visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In anticipation of the hearing following additional materials supplied, including submissions from the applicant’s agent;(a)Medical Board of Australia Certificate of Registration of the applicant.(b)Letter of support from Ag/Professor Patel.(c)Letter from Dr Russell Dale, paediatric neurologist.(d)School report for the applicant son, the Hills School 2018 stop(e)health waiver submission from the applicant.(f)Letter of support from the Filipino Chaplaincy of the Diocese of Parramatta.(g)PAYG summary for the applicant for the 2017 and 2018 financial year.(h)Statement of life insurance for the applicant.(i)Statement of First State Superannuation for the applicant.(j)Evidence of health insurance membership.(k)Qualifications of the applicant wife.(l)Letter of support from Dianne Ford, Nursing Unit Manager Auburn Hospital. (m)Letter of support from Dr Roslyn Crampton and Brett Thomas, Westmead and Auburn Hospital. CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this review is whether the applicant son meets Public Interest Criterion (PIC) 4007 as required by the criteria for the grant of the visa. Public Interest Criterion 4007, as it applies to this case, is extracted in the attachment to this decision. It requires a visa 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. The applicant son in this case has been assessed as having a moderate intellectual impairment on a background of congenital hydrocephalus with its sequelae. Is the applicant free from the relevant diseases or conditions (PIC 4007(1)(a), (b), (c))? 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. 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. 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. As the applicant in this case has applied for a permanent visa, the exemption provision in PIC 4007(1B) does not apply. In determining whether a person meets PIC 4007(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?

Decision

Reasons for decision

Given the findings above, and noting that the other visa applicants have been found to meet PIC 4007, 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 third named applicant Miguel Mariano David meets the following criteria for a Subclass 186 - Employer Nomination Scheme visa:·PIC 4007(2)(b) for the purposes of cl.186.224 of Schedule 2 to the Regulations.Penelope HunterMemberATTACHMENTMigration 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

The Tribunal remits the application for Employer Nomination (Permanent) visas for reconsideration, with the direction that the third named applicant Miguel Mariano David meets the following criteria for a Subclass 186 - Employer Nomination Scheme visa:·PIC 4007(2)(b) for the purposes of cl.186.224 of Schedule 2 to the Regulations.Penelope HunterMemberATTACHMENTMigration 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.