ESQUIBEL (Migration)

ESQUIBEL (Migration) [2018] AATA 2715 (22 June 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr ATILANO GAYAS ESQUIBEL
Mrs GIOVANNA FERNANDEZ ESQUIBEL
Master ATHELO MIGUEL ESQUIBEL
Miss ATHENA BEATRIZ ESQUIBEL
Master ATHELSTAN GENE ESQUIBEL
CASE NUMBER:  1600584
DIBP REFERENCE(S):  BCC2014/1348572
COUNTRY OF REFERENCE:                  Philippines
MEMBER:John Cipolla
DATE:22 June 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the applications for employer nomination (permanent) visas for reconsideration, with the direction that the first named applicant meets the following criterion 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 22 June 2018 at 10:22am

CATCHWORDS
Migration – Employer Nomination (Permanent) visa – Subclass 186 Employer Nomination Scheme – Health criteria – Review Medical Officer of the Commonwealth opinion – Slow progression of medical condition – Strong support from community, work and friends – Family’s willingness to provide transplant – Family contribution to medical expenses – Fund medical costs from savings – 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 PIC4007

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 5 January 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 31 May 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 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.
The applicant appeared before the Tribunal via video conferencing facilities in Darwin on 18 June 2018 to give evidence and present arguments. The Tribunal also took evidence from the applicant’s wife and employer Mr Adam Ferguson.
The applicant was represented in relation to the review by his registered migration agent who attended the review hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the 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 assessed by a Medical Officer of the Commonwealth (MOC) as not satisfying sub-subparagraphs PIC 4007(1)(c)(ii)(A) and 4007(1)(c)(ii)(B), on the basis of severe chronic renal disease. The delegate decided not to waive the requirements of paragraph PIC 4007(1)(c), stating ‘I am not satisfied that the significant cost identified is outweighed by mitigating factors and/or compassionate and compelling circumstances’.
Background
The applicant is a 43-year-old man from the Philippines. The applicant travelled to Australia with his wife and then two children (a third child was born in Australia) as the holder of a Subclass 457 Long Stay Business visa in 2011. The applicant was sponsored by Halikos Roofing in the Northern Territory. The evidence indicates that the applicant was employed as a Roof Plumber. The evidence indicates that the business that nominated the applicant for the Subclass 457 visa then proceeded to lodge an application to sponsor the applicant permanently for a Subclass 186 visa, the visa application that is the subject of this review.
The grant of a Subclass 186 visa requires an applicant to meet the health requirements along with other regulatory criteria in order for the visa to be granted. On 6 October 2015 a Medical Officer of the Commonwealth (MOC) assessed the applicant as not meeting the health requirement. Recourse to the MOC decision record indicates that the MOC formed the following view, that the applicant was a 40-year-old man with advanced chronic renal disease and that there was an expectation of ongoing progression in the applicant’s renal function which may require a renal transplant and pre-transplantation renal analysis, a condition that is likely to be progressive. The MOC determined that these healthcare services would likely result in a significant cost to the Australian community in the areas of health care and community services and prejudice the access of an Australian citizen or permanent resident to healthcare or community services. As has been noted above the Departmental delegate considered whether to waive the requirements of paragraph 4007(1)(c) but was not satisfied that the significant cost identified was outweighed by mitigating factors and/or compassionate and compelling circumstances, and, as the applicant did not satisfy Public Interest Criterion 4007, made a finding that the applicant did not meet the requirements of regulation 186.224(1) of the Migration Regulations.
The applicant submitted an application for review with the Tribunal on 19 January 2016. After the review was constituted to a Member, the applicant was given an opportunity to obtain a further opinion by a Review Medical Officer of the Commonwealth (RMOC) in October 2017.
On 13 November 2017 the RMOC concluded that the applicant was a 42-year-old man with severe chronic renal disease. The report noted that the applicants condition had remained stable over the past few years but was likely to progress in the longer term to a stage where he will require renal replacement therapy and that this would likely result in a significant prejudice to access to the Australian community in the area of health care. The RMOC noted that dialysis and renal transplantation was currently in short supply and if the applicant was required to access such services it would seriously disadvantage current Australian citizens and permanent residents. The RMOC concluded that the condition was likely to be progressive and that the applicant would require medical services, organ transplantation and dialysis.
On 24 November 2017 the Tribunal wrote to the applicant inviting the applicant to comment on information that could be the reason or part of the reason for affirming the decision under review. The applicant provided a response including medical reports which have been duly considered by the Tribunal.
The Tribunal again wrote to the applicant on 16 March 2018 asking the applicant whether he wished to pursue a further RMOC opinion on the basis of this new medical evidence that have been provided to the Tribunal in response to its letter of 24 November 2017. The applicant decided to proceed with a further RMOC review.
On 10 May 2018 the RMOC noted that the applicant had severe chronic renal disease and that the provision of services to a hypothetical person in Australia with the same condition as the applicant and at the same severity would be likely to require long-term specialist healthcare services including but not limited to renal replacement services in a kidney transplant. The RMOC noted that the condition was likely to be progressive.
During the course of the review, the applicant provided the Tribunal with a substantial amount of supporting documentation, including:
·A Medical Report dated 25 August 2017 from Dr Paul Lawton, a nephrologist at the Darwin Private Hospital.
·A further medical report from Dr Paul Lawton dated 4 December 2017.
·Testimony from the applicant’s sister in British Columbia stating that in the event that her brother, the applicant, required a kidney transplant that she would be a willing donor. Testimony from the applicant’s sister resident in the Philippines advising that she would be willing to be a kidney donor for the applicant in the event that he required a kidney transplant in the future.
·Testimony from the applicant’s wife advising that in the event that the applicant required a kidney transplant in the future that she would be willing to be a kidney donor.
·Testimony from the applicant’s long-term employer Halikos Group noting that the applicant had been employed with them since November 2011, that he was seen to be a hard-working and valuable member of the team and was now running the Truss Section. The letter notes that the applicant’s position was permanent and full-time and that his knowledge and experience and expertise in the area was invaluable to the operation of the business. This letter was provided by Katy Jackson, Senior Human Resources Advisor.
·Evidence pertaining to the applicant’s income in his current position.
·Evidence pertaining to the applicant’s private health insurance coverage for him and his family with BUPA Australia.
After setting out the applicant’s relevant medical history, Dr Lawton concluded in his report:
Mr Atiliano Esquibel has continued to be my patient since his diagnosis of chronic kidney disease over 3 years ago. During that time, and currently, he has had excellent blood pressure control and his chronic kidney disease has not progressed. He remains well.
The slow/absent rate of progression over this time suggests that his renal prognosis is better than I originally thought: I now no longer know when he is going to progress to end-stage kidney disease.
I note the opinion of the medical officer of the Commonwealth, dated 22 November 2017, that Mr Esquibel has a progressive condition that is likely to require renal replacement therapy in the future. I agree, but note that the opinion refers to the need for renal replacement services and kidney transplantation. This is neither clear nor entirely accurate. Mr Esquibel has 2 potential live kidney donors and looks forward to a pre-emptive live donor kidney transplant when necessary. I agree that the costs of alive donor kidney transplant operation and post-operative care in Australia would exceed the significant threshold of $40,000.
The opinion also goes on to say”I consider the provision of healthcare services… Would also be likely to result in a significant prejudice to the access to the Australian community in the area of healthcare. This is because dialysis and renal transplantation based on advice from the Department of Health is currently in a service in short supply; that is, there are already insufficient resources available to meet current national demand and failure to obtain required access to this service would be likely to seriously disadvantage current Australian citizens and permanent residents.
This is not true for the proposed treatment for Mr Esquibel (a pre-emptive live donor kidney transplant from a close family member), even though it is true for dialysis services and decreased donor kidney transplantation (“on the waiting list”). I note that the document”Notes for guidance for Medical Officers of the Commonwealth of Australia: Financial Implications and Consideration of Prejudice of Access to Services Associated with Nephrological conditions,9 November 2016 is deficient, as it does not delineate the difference in prejudice to access the health services arising from these different circumstances. I’m not aware of any waiting list for live donor kidney transplantation in Australia, beyond scheduling requirements around clinically indicated treatments.
In summary, I believe that the opinion of the Medical Officer of the Commonwealth dated 22^nd of November 2017 regarding MrEsquibel’s application is in error, and should be reconsidered”.
As has been noted the Tribunal conducted a review hearing on 18 June 2018 at which time the applicant, his wife and his employer gave evidence.
At the outset of the review hearing the Tribunal explained in detail the process of merits review and identify the relevant issues for consideration in the review.
The applicant gave his name and date of birth. The applicant advised that he worked as a Roofing Plumber and that he arrived in Australia in October 2011 as the holder of a Subclass 457 visa sponsored by Halikos in the company’s roofing and development division. The applicant advised that he worked as the holder of this visa for the company for a period of 4 years and that the company decided to sponsor him for a permanent Subclass 186 visa.
The Tribunal asked the applicant about his educational and employment background. The applicant advised that he travelled from the Philippines to Canada where he worked for 2 years to learn to be a roofer and that as a result of this experience he was certified as a carpenter. The applicant advised that he was proficient in putting all types of roofing structures together and that he had worked in roofing in the Philippines.
The Tribunal asked the applicant how long he had been seeing a nephrologist. The applicant advised that after he underwent an examination by a medical officer of the Commonwealth that his underlying kidney issue was detected for the first time and that he had been consulting with a nephrologist since the initial diagnosis. The applicant stated that he had a sister in Canada who was willing to be a live kidney donor in the event that down the track he needed transplantation. The applicant stated that he and his sister were surgically compatible. The applicant stated that as a consequence of the diagnosis he was on daily medication. The applicant stated that he had private medical insurance for he and his family that covered him in Australia with BUPA.
The Tribunal asked the applicant whether his wife had worked in Australia and whether she possessed qualifications. He advised that his wife was a registered nurse in the Philippines and that she had worked for a pathology lab during the time that the family had been in Australia. He advised that his wife was seeking to have her nursing qualifications from the Philippines recognised in Australia.
The Tribunal asked the applicant about his children. The applicant advised that he had 3 children, a daughter aged 12, son aged 8, both of these children were attending primary school in Darwin and were making sound academic progress. He advised that he also had a 3-year-old son who was currently staying home with his wife but would be going to preschool from next year. The applicant stated that his children had settled well into Australian life and the Australian education system and that his 12 year-old daughter had recently been selected to participate in the Tournament of Minds.
The Tribunal asked the applicant about his immediate family composition. The applicant advised that his father was deceased, that his mother was resident in the Philippines, that his sister was a permanent resident of Canada residing in Vancouver, another sister was resident in the Philippines and a brother was a citizen of Canada also residing in Vancouver.
The Tribunal asked the applicant about his progression in his employment with Halikos. The applicant stated that he had progressed well in his employment and had been given additional responsibilities. The applicant stated that he worked well independently and that he also oversaw younger staff working in the business. The applicant advised that he was responsible for the materials and the products that the business generated.
The Tribunal asked the applicant whether his siblings resident in Canada would be able to make any contribution to the costs of kidney transplantation surgery in the future if it became necessary and he advised that they were both willing to make a financial contribution to the costs and the applicant added that he was also saving for the possibility of future surgery so that he can meet the relevant costs.
The Tribunal took evidence from Mr Adam Ferguson, a Manager with the Halicos Group. Mr Ferguson advised the Tribunal that he had been working for the company for a period of 6 years and he advised that the company was one of the Northern Territory’s largest developers of shopping centres, residential properties and commercial properties including high-rise. He advised that the company was involved in the manufacture and installation of steel framed roofing systems and wall frames along with fencing, guttering, and commercial structures. Mr Ferguson advised the Tribunal that the applicant was currently overseeing the Enduraframe system for the company.
Mr Ferguson advised that in the 24 years that he had been in the construction business there were only 3 people with the requisite skills to be able to competently perform all the relevant tasks required in the business and that the applicant was one of these people. He described the applicant as being a special and unique person with an ability to work hard manually and physically. He advised that the applicant was proficient in the use of all manufacturing machinery.
The Tribunal asked Mr Ferguson what impact there would be on the company if the applicant was not able to maintain employment with the business. Mr Ferguson advised that the loss of the applicant would be devastating for the business. Mr Ferguson stated to find somebody with the applicant’s skill set would be almost impossible particularly in the Northern Territory. Mr Ferguson advised that the business had been looking for additional suitable applicant’s to put steel frames together for the past 2 years with limited success. Mr Ferguson described the applicant as a unique person, and advised that there is not one other person on the factory floor that is able to get products together as competently as the applicant. Mr Ferguson stated that the applicant was proficient in both manufacturing and installation. He advised that the applicant had recently obtained a forklift ticket so that he could load large manufactured components for transportation without damage. Mr Ferguson stated that the applicant comes to work every day at 7am, he never has time off and that his work ethic is extremely high that the applicant is very fit and that the contribution that he makes to the business is outstanding.
The Tribunal took evidence from the applicant’s wife. The Tribunal asked the applicant’s wife about her qualifications. She advised that she had worked as a registered nurse in the Philippines and had undergraduate qualifications. She advised that she had worked for a time in Australia as a pathology collector. She advised that it was her plan to have her nursing qualifications recognised in Australia which will require a further 2 years of study so that she can work as a nurse in this country.
The Tribunal asked the witness about her husband state of health. She advised that her husband was very well and very fit and that he has a very solid work ethic. The Tribunal asked the witness about how her children had integrated into Australian society. She advised that her two elder children were doing extremely well at school and that they have a close circle of friends.
The Tribunal asked the applicant whether there was any further evidence that he wanted to provide. The applicant stated that from the day that his underlying kidney problem was diagnosed he had been feeling very well. The applicant stated that he had no symptoms. The applicant stated that the diagnosis had not acted upon his ability to work or to meet his parental responsibilities. The applicant stated that he was closely involved in umpiring basketball in Darwin and that he also played basketball as well.

The Tribunal asked the applicant’s representative, Mr Handberg whether he wanted to make any comments. Mr Handberg stated that the applicant since coming to Australia had made a solid contribution in his employment, and was very active in the Northern Territory community particularly in basketball as an umpire and player. Mr Handberg added that the applicant’s family home was recently destroyed in a typhoon in the Philippines and there is nothing for the applicant and his family to return to, photographic evidence corroborative of this was provided to the Tribunal. The hearing concluded.
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?
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.
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. The Tribunal is satisfied that the opinion of the MOC meets the relevant requirements and is correct. Based on that opinion, the Tribunal is satisfied that the applicant does not meet PIC 4007(1)(c).
Should the requirements of PIC4007(1)(c) be waived?
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).
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 at [46]-[47], where the Full Court held:
46 … There are obviously broad judgments to be made in determining what amounts to "undue cost" and "undue prejudice". Reading together the criteria in Item 4007(1)(c)(i) and the criterion for waiver in 4007(2)(b)(i) it is apparent that the occasion for the exercise of the waiver will only arise where it is already established that the cost to Australia, if the visa is granted, is likely to be "significant". The Minister will therefore need to be satisfied that a likely "significant" cost will nevertheless not be "undue". In the former determination he or she is evidently to be bound by the opinion of a Medical Officer of the Commonwealth.
47 The evaluative judgment whether the cost to the Australian community or prejudice to others, if the visa is granted, is "undue" may import consideration of compassionate or other circumstances. It may be to Australia's benefit in moral or other terms to admit a person even though it could be anticipated that such a person will make some significant call upon health and community services. There may be circumstances of a "compelling" character, not included in the "compassionate" category that mandate such an outcome. But over and above the consideration of the likelihood that cost or prejudice will be "undue" there is the discretionary element of the ministerial waiver. And within that discretion compassionate circumstances or the more widely expressed "compelling circumstances" may properly have a part to play.
The Tribunal is able to have regard to any guidance that may be available in relation to legislative provisions containing such terms, such as those given in Departmental guidelines, but it must not treat such guidance as determinative and must always have regard to the terms of the legislation and the individual circumstances of the case.
Departmental guidelines in relation to the PIC 4007 health waiver state[1]:
What does ‘undue’ mean
Although ‘undue’ is not defined in migration law:
·the dictionary definition of undue is “unwarranted; excessive; too great” and
·the courts have indicated that a broad range of discretionary considerations can be taken into account in determining whether costs or prejudice to access are “undue”, which, in a given case, may include mitigation of costs or service, or consideration of compelling and compassionate circumstances.
[1] PAM3 – Migration Regulations Sch4 - 4005-4007 - The health PIC - Sch4/4005-4007 - The health requirement -Health Waivers -The PIC 4007 Health Waiver (re-issued 14/10/2016).
What to take into account
Given the broad range of discretionary considerations that can be taken into account, the individual circumstances of the visa applicant need to be considered in coming to a conclusion about whether the granting of the visa would be unlikely to result in undue cost or undue prejudice to access.
Each health waiver case must be considered on its merits – with all relevant factors taken into account, including any compelling and/or compassionate circumstances that warrant a waiver being exercised (for example, close family links to Australia and/or reasons why the family would find it difficult to return to their home country).
When making a waiver decision, section 65 delegates should consider the following policy guidelines for the relevant type of visa being processed - as the nature of the individual circumstances involved are likely to vary depending on the type of visa that has been applied for (even though the same PIC applies). …
88.5 The role of the MOC
A MOC opinion and the waiver costing advice must be taken into account when making a waiver decision. This includes the MOC’s advice as to the likely costs to the Australian community in the areas of health care and community services, and the extent of any prejudice to the access to health care or community services of an Australian citizen or permanent resident if the visa applicant were to be granted the visa. It is, however, the s65 delegate’s decision as to whether granting the visa would result in ‘undue’ costs or prejudice to access.
In relation to prejudice to access, the guidelines state:
Prejudice to access - factors afforded weight under policy
If the MOC has identified the applicant is likely to require organ transplantation, consideration should be given by the delegate as to whether the organ could be provided through live donation (for example, kidney, liver, bone marrow) or if the donation would need to be from a deceased donor (for example, heart, lungs):
·live donation: consideration should be given to evidence that the applicant has a family member (preferably in Australia or migrating) who is willing to donate (directly or through paired kidney donation). Alternatively, advice from the treating specialist/doctor that it would be unlikely that the applicant would be placed on a transplant list can be considered.
·deceased donor: consideration would only be able to be given to a statement from the treating specialist/doctor that it would be unlikely that the application would be placed on a transplant list.
In relation to consideration of the health waiver for certain skilled and business visas, the guidelines also state relevant factors which are afforded significant weight:[2]
In considering whether the granting of the visa to the applicant would be unlikely to result in 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, under policy, delegates should give significant weight to the following:
·the skills and qualifications and experience of all applicants, as appropriate - for example, the occupational skills, qualifications, English language ability, work history and/or future employment prospects of the main applicant and any adult family members
·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.
[2] PAM3 – Migration Regulations Sch4 - 4005-4007 - The health PIC - Sch4/4005-4007 - The health requirement -Health Waivers - PIC 4007 waivers for certain skilled and business visas (re-issued 14/10/2016).
The Tribunal accepts that it must take into account the applicant’s individual circumstances in determining whether the likely costs of providing health services to the applicant to the Australian community are undue.
On the basis of the evidence provided by the applicants throughout the review and at the hearing, the Tribunal is satisfied that:
·The applicant is a skilled Roofing Plumber who has worked in that occupation for his nominating employer in Darwin in the Northern Territory for in excess of six years;
·The applicant and his wife and children have lived in Darwin since October 2011. The applicant has earned the respect of his employer and is seen as an indispensable part of the business. The applicant’s wife has worked as a pathology collector and has overseas nursing qualifications and wants to have them recognised in Australia so that she is able to work as a nurse in Australia. The applicant’s two older children are doing well at school and are well integrated in Australia. The applicant is involved in refereeing basketball in the Northern Territory and also plays basketball and is active in the sporting community in Darwin. The evidence before the Tribunal indicates that the applicant has garnered strong support from his community, work, colleagues and friends;
·The applicant is well and has excellent blood pressure and his chronic kidney disease has not progressed. The slow rate of progression indicates that the applicant’s renal prognosis is better than originally thought. The MOC view of the need for renal dialysis services or a kidney transplant is, according to Dr Lawton, neither clear or entirely accurate. As the applicants treating nephrologist the Tribunal places considerable weight on the report of Dr Lawton dated 4 December 2017;
·The applicant’s sister in Canada and his sister in the Philippines are both willing and likely to be able to provide a kidney for the applicant should he require a renal transplant in the future; and
·The applicant is willing and able to fund the costs of a prospective kidney transplant through his savings and with the financial support of his two siblings resident in Canada.
On the basis of these findings, the Tribunal is satisfied that while the costs to the Australian community might be significant should the applicant require a kidney transplant, at some point in the future, they are not undue given the applicant’s personal circumstances.
Prejudice to access
The MOC assessment states that the applicant would prejudice the access to community health or other services of Australian citizens or permanent residents should he continue to reside in Australia.
The Tribunal notes that it has accepted that the evidence establishes that the applicant is unlikely to require kidney transplant in the foreseeable future as he is well and stable and Dr Lawton has concluded that the progression of his disease is slow. The evidence further indicates that if the applicant was to need a kidney transplant in the future he would be able have access to a kidney donation from his two sisters and that through his own savings and the financial contribution of his two siblings both resident in Canada, he would be able to meet the costs of such surgery. Accordingly, while the MOC has correctly determined the question of prejudice to access on the basis that the services could be accessed, it may well be that it is unnecessary for that to happen in this case.
For these reasons, the Tribunal is satisfied that the granting of a visa to the applicant would be unlikely to result in undue cost or undue prejudice within the terms of PIC 4007(2)(b). Therefore PIC 4007(1)(c) may be waived subject to the applicants satisfying all other requirements for the visa.
Given the findings above, and noting that the other 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 applications for employer nomination (permanent) visas for reconsideration, with the direction that the first named applicant meets the following criterion 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.
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.

[2018] AATA 2715

22 June 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Appeal