Deocades (Migration)

[2019] AATA 6100

Deocades (Migration) [2019] AATA 6100 (11 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jose marie Deocades
Mr Leomar Deocades
Mr Josemarie Jr Deocades

CASE NUMBER:  1702503

DIBP REFERENCE(S):  BCC2015/2415648

COUNTRY OF REFERENCE:                   Philippines

MEMBER:Peter Emmerton

DATE:11 October 2019

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for Regional Employer Nomination (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 - Regional Sponsored Migration Scheme visa:

·PIC 4007(1)(c) for the purposes of cl.187.224 of Schedule 2 to the Regulations.

Statement made on 11 October 2019 at 10:32am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – health criteria – disease or condition likely to require health care or community services – non-migrating spouse died before review of refusal – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5F, 65

Migration Regulations 1994 (Cth), Schedule 2, cl 187.224, Schedule 4, criterion 4007(1)(c)

CASES

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 7 February 2017 to refuse to grant the applicants Regional Employer Nomination (Permanent) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 20 August 2015. The delegate refused to grant the visas as the first named applicant (now referred to as the applicant) did not satisfy cl.187.224 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.

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 visa applicant 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 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. The applicant in this case was unable to satisfy the delegate that he was able to meet PIC 4007 because his non migrating spouse and therefore a member of his family unit was assessed by a Medical officer of the Commonwealth as not meeting paragraph 4007 (1)(c) on 25 October 2016.

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

6. 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.

7. 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.

8. 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.

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

10. 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?

11. On the evidence before the Tribunal, a MOC opinion was required at the time of application.  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. The Tribunal is satisfied that the correct test was applied by the MOC.

12. The Tribunal finds that this is no longer the dispositive issue as evidence has been presented to the Tribunal in support of the fact that the applicant Mr Deocades and his wife Mrs Deocades, his non-migrating spouse, are no longer in a Spousal relationship as defined by Section 5F.

13. ‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as husband and wife to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d). In forming an opinion about these matters, regard may be had to all of the circumstances of the relationship. This may include evidence of the financial and social aspects and the nature of the visa applicant’s household and their commitment to each other as set out in r.1.15A(3).

14. The Tribunal is satisfied that Mr Deocades the primary applicant and Mrs Deocades are no longer in a spouse relationship as defined by s.5F of the Act. Nor is Mrs Deocades a member of Mr Deocades family unit. This circumstance has come about as a result of the death of Mrs Deocades which took place post the initial visa application and prior to this review by the AAT.

15. The Tribunal has been provided with written documentation which it accepts as substantive evidence that Mrs Deocades is deceased. The first document, a Death Certificate signed by Dr Raymond L. Espinosa M.D. states that the time of death was 12-06am, 29 August 2017 in the city of San Fernando, Phillipines. The second document is a receipt for services from a Funeral Home dated 7 September 2017 relating to Mrs Deocades.

16. Accordingly the Tribunal accepts that Mrs Deocades is no longer a member of the applicant’s family unit. Subsequently the primary applicant Mr Deocades satisfies the requirements of Public Interest Criteria 4007(1)(c).

17. 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

18. The Tribunal remits the application for  Regional Employer Nomination (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 -  Regional Sponsored Migration Scheme visa:

    ·PIC 4007(1)(c) for the purposes of cl.187.224 of Schedule 2 to the Regulations.

    Peter Emmerton

    
    

    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.