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

1. 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).

2. 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.

3. 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.

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 matter should be remitted for reconsideration.

   Background

6. 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.

7. As part of the assessment for the grant of the visa all applicants were required to be assessed by the Medical Officer of the Commonwealth (MOC). The assessment by the MOC of the applicant son dated 29 May 2015 found that he suffered from a moderate intellectual impairment, assessed in the moderate range of disability which was likely to be permanent. It was assessed that a hypothetical person with the condition in the form and severity of the applicant son would likely to require continued special education, income support as an adult, Commonwealth and State disability support, and residential support in the future. It was assessed that the provision of these healthcare and/or community services were likely to result in a significant cost to the Australian community in the areas of healthcare and/or community services. The likely costs were assessed as $2,703,800. Based on this assessment, the MOC found that the applicant son did not meet the health requirement

8. Submissions were made by the applicant to the Department in response to this information, these submissions included the provision of further medical information, financial information, evidence of the training and qualifications of the applicant, income salary and insurance information for the applicant. A further report was made by the MOC and, in an assessment dated 18 March 2016, it was again concluded that the applicant son did not meet the health requirement, the likely cost to the Australian community was assessed as $2,828,940.

9. The delegate who considered the application down the applicant son did not satisfy the criteria in PIC 4007(1)(c) and was not satisfied that there were reasons to waive the criteria. Accordingly, the delegate found the criteria in cl. 186.233 was not met by the applicant and refused the visa application. As the applicant did not meet the criteria for the grant of the visa, all other applicants were not a member of the family unit of the person who met the primary criteria therefore their visas were also refused.

   Tribunal application

10. The applicants applied to the Tribunal for a review of the delegate’s decision on 4 July 2016. They included with the application a copy of the decision of delegate.

11. On 9 November 2018 the tribunal wrote to the applicants inquiring whether they wished for a further opinion of a MOC the obtained. On 16 November 2018, advice was received from the representative for the applicants that they did not wish to obtain a further opinion.

12. 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

13. 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))?

14. 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.

15. 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.

16. 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.

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

18. 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?

19. 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.

20. Two MOCS have been finalised in relation to the applicant son (dated 29 May 2015 and 18 March 2016), with the most recent MOC stating that the earlier one is to be disregarded as the 18 March 2016 opinion is based on the most up-to-date medical information.

21. The applicants were invited to obtain a further MOC prior to the Tribunal hearing, which they declined. The Tribunal confirmed at the hearing that they were satisfied that there had been no change in the applicant son’s condition since the opinion of 18 March 2016 was issued. The Tribunal further discussed with them the content of the opinion and they confirmed that they did not dispute any of the information contained in the opinion. The Tribunal invited submissions as to whether it was a valid opinion and no challenge was raised by the applicants or their representative.

22. The Tribunal is satisfied that the MOC opinion of 16 March 2018 is valid. The MOC states that in preparing the opinion that they have had regard to the information available concerning the applicant son, including but not limited to the visa medical assessment and associated examinations and the reports from Paediatrician Dr G Vizcarra. The applicants have not suggested that the MOC did not review available reports. The MOC has identified the nature of health and community services including special education services, Commonwealth disability services, State disability services and residential care services. Further the MOC has assessed the statutory criteria by reference to the hypothetical person test and considered that the provision of these services would likely result in significant cost to the Australian community in the areas of healthcare and/ or community services. The Tribunal has also considered that the opinion also states that the applicant has been assessed against PIC 4007 for a period of permanent stay in Australia. This is the correct period in relation to the visa for which the applicant has applied. Additionally, it was indicated on the opinion that 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” and the opinion also set out the officer’s position number. The applicants have not disputed the costs as assessed by the MOC.

23. Based on the opinion of the MOC, the Tribunal is satisfied that the applicant son does not meet PIC 4007(1)(c).

    Should the requirements of PIC4007(1)(c) be waived?

24. 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).

25. 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. Departmental policy guidance on the exercise of this discretion is contained in the Procedures Advice Manual (‘PAM3’). Broadly speaking, these relate to: the skills and qualifications and experience of all applicants, whether the nominated occupation is one in demand (refer to the Skilled Shortage List),whether the family is already settled or proposes to settle in a remote, rural or regional area and the extent to which the visa applicant and/or their family may be able to mitigate potential costs/prejudice to access issues identified by a MOC when assessing the health waiver applicant against the health requirement; other compelling and compassionate circumstances and any other relevant factors.

26. Decision-makers can, and in some circumstances must, have regard to policy. However, it is important for decision makers to recognise that, absent a statutory duty or binding ministerial direction, they are not bound by policy or interpretative guidelines and must ensure that any policy or guidelines that they rely upon are consistent with the law and are not applied as an inflexible rule of universal application. The Tribunal thus considered the circumstances of the applicant family.

    The skills and qualifications and experience of all adult applicants

27. The Tribunal accepts from the evidence that the applicant is highly skilled. He has obtained qualifications as a doctor of medicine, undertaken a post graduate medical internship, and received qualifications as an internal medical physician in the Philippines. In Australia he has also obtained a Diploma of Child Health and undertaken the AMC MCQ and Clinical Examination. The applicant holds a certificate of registration as a medical practitioner with the Medical Board of Australia. His curriculum vitae records that he has approximately 20 years medical experiences and he has been employed as a Hospitalist or Career Medical Officer at Auburn Hospital since 2011. The Tribunal has had regard to the letters of reference supplied and the oral evidence of Ms Murphy and accepts that the applicant is a valuable member of staff at Auburn Hospital, that he is well respected, and plays an important role in patient care, that he takes and active role in teaching in ward rounds and supervising junior medical officers. It is also accepted that during the period of his employment at Auburn Hospital considerable time has been invested by the Hospital in the training and professional development of the applicant. The applicant has a proficient command of English, his employment at Auburn Hospital will continue for the next couple of years and it is accepted that he has good ongoing prospects of employment in Australia. These factors of the applicant, it is accepted, are favourable to the waiver. 

28. The other adult family member, the applicant wife also holds tertiary qualifications from the Philippines, being a Bachelor of Science. She has previously worked as a university research associate until 2000. She does not work and is the primary carer of the applicant son and daughter. It is accepted that she also has proficient English language abilities. She indicated at the hearing that she has undertaken some vocation training in Australia and that as her children get older she could there was the possibility that she could undertake some part time employment. The applicant wife is educated, however the Tribunal is mindful that she has not undertaken employment since 2000 and will be limited in her employment in the future due to her carer responsibilities.

    Whether the nominated occupation is one in demand

29. Submissions have been received that doctors are in short supply and listed on different occupations lists at both a State and Federal level. The nominated occupation of the applicant is a Resident Medical Officer. It is accepted that this occupation is on the Short –term Skilled Occupation List, IMMI 18/051 (Specification of Occupations and Assessing Authorities) Instrument 2018. It is accepted from the letters of reference supplied that the applicant performs an essential role in his workplace, and the evidence demonstrates that he would be difficult to replace. In making this finding the Tribunal accepts the evidence of Ms Murphy, the Auburn Hospital Patient Flow Manager, that when the applicant is not available the hospital may have to get several specialists to cover his shift. The evidence was presented that the role the applicant fulfils at Auburn Hospital of Hospitalist was similar to a Medical Officer in Charge, but unique to Auburn Hospital. He oversees all patients at the hospital in the area of general medicine, surgery and paediatrics. As a staff doctor employed by the hospital he would be the first responder and team leader in the event of a medical emergency at the hospital, until relevant consulting specialists could be contacted and attend. The supporting material provided by the general manager of Auburn Hospital and the nursing unit manager, document that the applicant undertakes an essential service at Auburn Hospital. The professional references and letters of support also corroborate the evidence of the applicant regarding his major contribution to hospital activities. He is the chairman of the committee looking after junior medical officers, also on the commit that oversights the process for hospital personnel to respond to deteriorating staff. Additionally the applicant had initiated the program of electronic medical records into the hospital and electronic records for the administration of medication. According to the applicant’s employer and colleagues he provides an important service not only to Auburn Hospital but the general community. These are also factors in favour of the waiver.

    Whether the family is already settled or proposes to settle in a remote, rural or regional area

30. The applicant family currently live in metropolitan Sydney, the applicant is being sponsored by his employer Auburn Hospital. The applicant son and applicant daughter are enrolled in schools in Sydney. The Tribunal raised their settlement intentions at the hearing and they do not propose to settle in a remote rural or region area of Australia.

    The extent to which the visa applicant and their family may be able to mitigate the potential costs identified by a MOC

31. The applicants do not have any family in Australia. The applicant has a sister in the Philippines but his parents and twin brother and family reside in the United States. They do have a close network of friends, many of whom are medical specialists and former school classmates who provide social support.

32. The letter of Dr Crampton and Mr Thompson sets out that the applicant currently has all $176,464. With overtime and other bonuses and entitlements the PAYG summaries submitted for the applicant for the last two financial years indicate that he has consistently earned over $215,000, and tax in excess of $74,000. The applicant also has life insurance and superannuation for his future needs and that of his family. In addition he has top cover private medical insurance. Copies of all the relevant policies were submitted to the Tribunal.

1. The Tribunal explored with the applicant and applicant wife the current ongoing costs for the applicant son’s care. Consistent with the medical report provided by Dr Dale, they advised that he had not had a seizure for several years. His only ongoing medication was his anti-seizure medication. The applicant son has annual check-ups with his paediatric specialists, however other than this there are no current ongoing medical expenses. He does not engaged in any physio-therapy or any other form of occupational therapy. The applicant and applicant wife current attend to all his care needs, they do not engage outside carers for assistance or respite and do not engage any other disability services. Other than his school there are no special activities undertaken by the applicant son. The applicant pays a special levy of $5000 towards the applicant son’s schooling. It was also submitted with the applicant in a high earning bracket the family are able to mitigate potential costs and access issues identified by MOC.

2. It is accepted that the applicant earns a high income and has a potential to continue to earn at this level. Currently, he remains the only adult family member earning an income and this must be utilised to support all of the applicant family. The Tribunal acknowledges that many of the costs of the applicants son’s care needs to date have been met by the applicant wife remaining his primary carer. Submissions were also provided that according to their culture the applicants intend to meet the primary care needs of the applicant son within their family. The Tribunal has considered that the tax paid by the applicant over the next 20 years of his career will put back into the economy a significant portion of the estimated costs of the MOC. With his medical qualifications and knowledge it is accepted that the applicant engaged proactively with his son’s condition to ameliorate the need for future assistance. The Tribunal also notes that the applicant and applicant wife own land in the Philippines and some shares that could be accessed for financial support. Tribunal is satisfied that they have some ability to mitigate the potential costs of the applicant son’s care.

   Whether there are any other compassionate or compelling circumstances for the exercise of the waiver

3. The applicants have been living in Australia for 13 years and are well settled. Although they do not have any family in Australia, they are active members and supported by their church community. The Tribunal has had regard to the letter of support provided by the Filipino Chaplaincy of the Diocese of Parramatta, regarding the perceived value of the applicants to the church community.

4. It is accepted that the applicant may not be able to secure comparable employment in the Philippines. The applicant has acknowledged that he would obtain employment in the medical field in the Philippines however he submitted that he had not specialised in any particular area of medicine at the level that he currently operates, he chose not to complete a specialty and instead continue in the role of hospitalist at the Auburn Hospital. The evidence is that there is no similar position available at hospitals in the Philippines and he would have to return to study to complete a specialty or accept a position at a lower level if he returned home. Both outcomes would affect his ability to provide financially for his family.

5. The applicant son is now 15 and has spent 13 years living in Australia. His first language in English and he does not speak Tagalog, and if he is required to return to the Philippines it would be exceptionally challenging for him as Tagalog is widely used. This would be alienating to the applicant son and could undermine the gains that he has made in his education and development in Australia. There is limited special education schools available in the Philippines and those of good quality have long waiting lists and are hard to access. There were no support units in public and private mainstream schools and he would have to go to an Independent special school to get an education. The applicants had concerns that the applicant son would be able to continue his education if they returned. Further in post-school employment the opportunities for those with disabilities to engage in the workplace were further limited. Currently the applicant son had the opportunity through his current school to progress through to vocational education and supported employment in certain environments such as a café. Evidence was also presented that individuals with a disability such as the applicant son are not so readily accepted in the community in the applicant’s home country and that access to basic disability services, particularly in the area of public transport was limited.

6. The applicant daughter was born in Australia. She has started school in Australia and speaks English. All her community and social connections were in Australia.

7. The MOC has also assessed that the granting of the visa to the applicant son would not be likely to prejudice the access to an Australian citizen or permanent resident to health care or community services. There is no evidence that the applicant son would not satisfy PIC 4007(2)(b)(ii)

8. The Tribunal is satisfied that there is a combination of compassionate and compelling circumstances that would weigh in favour of the granting of the visa.

   Conclusion

9. Considering all the circumstances and the evidence before it, the Tribunal has concluded that although the potential costs of the applicant son’s condition are significant, it is satisfied that the grant of the visa is unlikely to result in under costs to the Australian community, when all the circumstances are taken in to account.

10. For these reasons, the Tribunal is satisfied that the granting of the visa to the applicant son 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.

11. 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

12. 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 Hunter

    
    

    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.