Debinder (Migration)

[2024] AATA 2449

Debinder (Migration) [2024] AATA 2449 (30 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Debinder
Mr Gurvinder Singh
Miss Dilraj Kaur Gill

REPRESENTATIVE:  Mr Jujhar Bajwa (MARN: 0742209)

CASE NUMBER:  2303168

HOME AFFAIRS REFERENCE(S):          BCC2021/1684059

MEMBER:Deputy President J.L Redfern PSM

DATE:30 June 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for Skilled Work Regional (Provisional) (Class PS) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 491 - Skilled Work Regional (Provisional) visa:

·PIC 4005(1)(c)(ii)(A)for the purposes of cl 491.211 of Schedule 2 to the Regulations.

Statement made on 30 June 2024 at 7.05pm

CATCHWORDS
MIGRATION – Skilled Work Regional (Provisional) (Class PS) visa – Subclass 491 (Skilled Work Regional (Provisional)) – Accountant – health criteria – myeloid leukaemia – ‘significant cost’ to the Australian community – validity of the RMOC opinion – carer and disability payments excluded – period for assessment reduced – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 358, 363
Migration Regulations 1994 (Cth), Schedule 2, cl 491.211; Schedule 4, PIC 4005

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 Home Affairs on 2 March 2023 to refuse to grant the applicants Skilled Work Regional (Provisional) (Class PS) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 29 August 2021. The delegate refused to grant the visa on the basis that the first named applicant, Mrs Debinder, did not satisfy cl 491.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4005 of Schedule 4 to the Regulations was not met.

3. The applicants appeared before the Tribunal on 2 February 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Debinder. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The applicants were represented in relation to the review.

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

   BACKGROUND AND CONSIDERATION

5. The issue in this review is whether the visa applicant meets Public Interest Criterion (PIC) 4005 as required by the criteria for the grant of the visa. Public Interest Criterion 4005, as it applies to this case, is extracted in the attachment to this decision. It requires the applicant, in certain circumstances, to undergo medical assessment, and to be free of certain diseases or conditions that may impact on the community.

6. The applicants applied for the visas on 29 August 2021. The first named applicant, Mrs Debinder, is the primary applicant for the visa for the nominated occupation of Accountant. The delegate refused to grant the visa on the basis that the second named applicant, Mr Gurvinder Singh, did not satisfy cl 491.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4005 of Schedule 4 to the Regulations was not met.

7. The refusal was based on a report received by the Department dated 19 October 2021 from the Medical Officer of the Commonwealth (referred to in this decision as the MOC) concluding that Mr Gurvinder Singh, who has myeloid leukaemia, did not meet the health criteria. For an applicant to satisfy cl 491.211, each member of the family unit must satisfy the health requirement in para 4005. Given that Mr Gurvinder Singh is a member of Mrs Debinder family unit, her application was refused.

8. The applicants sought review of the refusal, and the Tribunal obtained an updated opinion from a MOC, referred to as the Review Medical Officer of the Commonwealth (RMOC), dated 11 May 2023. The RMOC found that the applicant did not satisfy PIC 4005 based on an assessment that certain medical services and pharmaceuticals would be needed by Mr Gurvinder Singh and that the provision of these services would be likely to result in a ‘significant cost’ to the Australian community in the areas of health care and/or community services. The estimated cost of these services was $87,650.

9. On reviewing the RMOC opinion, I formed the view that the opinion should be updated to include more recent information about the cost of pharmaceuticals provided by Mr Gurvinder Singh’s specialist, Dr Sonali Sadawarte, Staff Specialist Clinical Haematologist, Royal Hobart Hospital. The report was dated 18 December 2023. A further RMOC opinion was provided dated 27 February 2024. The opinion estimated that the cost for the provision of healthcare and/or community services that would be likely to result in the case of Mr Gurvinder Singh would be in the vicinity of $81,320. This was assessed as a significant cost for the purposes of PIC 4005 and the are MOC concluded that Mr Gurvinder Singh did not meet the health criteria. The costs set out in the RMOC opinion comprised medical services and pharmaceuticals over a period of 10 years.

10. I formed the preliminary view that this opinion was invalid because it made the assessment over a period of 10 years. By letter dated 17 April 2024 the Registry wrote to the Department seeking further submissions pursuant to s 358 (2) of the Act in relation to the period of assessment. The Department was also directed, pursuant to s 363(1)(d) of the Act, to obtain further a opinion from the RMOC in compliance with the Act, the Regulations and the relevant instruments. This request was also made in relation to an unrelated matter that raised the same legal issues.

11. By letter dated 30 May 2024, the Department responded to the invitation and advised that it considered that the relevant period in this matter, and in an unrelated matter raising similar issues, is five years from the grant of the primary visa holder’s visa. The reasoning, outlined in the letter, is as follows:

    ·Clause 4005(2) of Schedule 4 of the regulations specifies the period against which cl 4005(1)(c)(i) is to be considered. It distinguishes between three categories of visa, namely, permanent visas, temporary visas and temporary visas of a subclass specified by the Minister in an instrument in writing for the purposes of subparagraph 4005 (2)(b)(ii).

    ·For permanent visas and temporary visas of a subclass specified by the Minister in an instrument, cl 4005(1)(c)(i) is to be assessed by an open ended, commencing on the date the visa applicant applied for the visa.

    ·For other temporary visas, the relevant period is to be assessed by reference to the period for which the Minister to intends to grant the visa.

    ·A subclass 491 visa is a temporary visa, not a permanent visa, nor is it a visa that in a subclass specified by the Minister in instrument for the purposes of 4005 (2)(b)(ii) at the time the visa application was made.

    ·This is because IMMI 16/067, which commenced on 1 July 2016, continued to apply until the time of the application. As such, the accrued right to have the subclass 491 visa assessed by reference to IMMI 16/067 applied to the applicants.

    ·Pursuant to cl 491.512 of Schedule 2 to the Regulations, a subclass 491 visa is granted to a secondary visa applicant for a period of five years from the date of the grant of the primary visa holder’s visa. As such, the relevant period of assessment is five years, not open ended based on a permanent stay, as assessed by the Review MOC.

12. The opinion and reasoning in this letter, as summarised above, is in accordance with my view and is consistent with contentions raised in the Tribunal’s invitation to provide submissions.

13. Having regard to this opinion, the Department instructed the that the RMOC to undertake a further view and provide an opinion excluding the carer and disability payments and reducing the period of the assessment to 5 years. The result of this review was a reduction in the cost assessment as outlined above. The report, dated 4 June 2024, states that the applicant, Mr Gurvinder Singh, meets the health requirement.

    Findings

14. There is no dispute that all applicants in this case were required to undertake, and did in fact undertake, a medical assessment by a MOC. As such, the requirements in paras 4005(1)(aa) and (ab) are met.

15. There is no evidence that Mrs Debinder or any of her family have tuberculosis or 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. This was not raised by the delegate or the MOC, nor has it been raised by the RMOC. I therefore find that the requirements in paras 4005(1)(a) and (b) are met.

16. In this case, the delegate found that Mrs Debinder did not meet cl 491.211(3) because her spouse, Mr Gurvinder Singh, did not satisfy para 4005(1)(c) as he had chronic myeloid leukaemia, and his condition would be likely to require health care or community services during the relevant period which would be a ‘significant cost’ to the Australian community. This finding was based on a MOC opinion dated 19 October 2021. The subsequent RMOC opinions also found that Mr Gurvinder Singh does not meet PIC 4005. As such, the determinative issue in this review is whether Mr Gurvinder Singh meets the requirements of para 4005(1)(c).

17. The MOC and RMOCs provided in May 2023 and February 2024 were not valid because they made an assessment based on an open-ended period, in this case, based on 10 years. The most recent RMOC opinion is based on the assessment over a five-year period. This reduces the costs by half, such that the estimated costs are now less than $51,000.

18. The Department publishes guidelines to assist Department offices, medical offices and the Tribunal in making assessments about whether costs for the provision of healthcare and/or community services would be likely to result in a significant cost to the Australian community in the areas of healthcare and social community services for the purpose of PIC 4005. The Department has published a procedural instruction known as the Procedural Instruction for the Health Requirement. The nominated threshold in the Procedural Instruction for costs considered to be ‘significant’ is $51,000. The explanatory notes provided with the RMOC dated 4 June 2024 note that the estimated cost will be less than this.

19. I accept that the RMOC opinion is valid, and I therefore must take it to be correct.

20. Accordingly, I find that the second named applicant, Mr Gurvinder Singh, meets the health criteria set out in PIC 4005(1)(c)(ii)(A). The delegate was otherwise satisfied that other the applicants met the health requirements in PIC 4005(1)(c)(ii)(A). I therefore find that the first named applicant meets PIC 4005(1) (c)(ii)(A) for the purposes of cl 491.211of Schedule 2 to the Regulations.

    DECISION

21. The Tribunal remits the application for Skilled Work Regional (Provisional) (Class PS) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 491 - Skilled Work Regional (Provisional) visa:

    ·PIC 4005(1) (c)(ii)(A) for the purposes of cl 491.211of Schedule 2 to the Regulations.

    J.L Redfern PSM

    Deputy President

    
    

    ATTACHMENT

    Migration Regulations 1994

    Schedule 4

    4005(1)         The applicant:

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

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

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

    unless a Medical Officer of the Commonwealth decides otherwise; and

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

    (a)is free from tuberculosis; and

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

    (c)is free from a disease or condition in relation to which:

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

    (A)require health care or community services; or

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

    during the period described in subclause (2); and

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

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

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

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

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

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

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

    (b)for an application for a temporary visa:

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

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

    (3)If:

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

    (b)the subclass being applied for is not specified by the Minister in an instrument in writing made for subparagraph (2) (b) (ii);

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