Gurung (Migration)

[2022] AATA 784

Gurung (Migration) [2022] AATA 784 (25 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sudip Gurung
Ms Mamata Thapa Gurung

REPRESENTATIVE:  Mr Abdul Hasib Khan (MARN: 0427601)

CASE NUMBER:  1909764

HOME AFFAIRS REFERENCE(S):          BCC2017/1710898

COUNTRY OF REFERENCE:                   Nepal

MEMBER:Alan McMurran

DATE:25 March 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for  Employer Nomination (Permanent) visas for reconsideration, with the direction that the first named applicant 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 25 March 2022 at 6:57pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – cook – health requirements – disease or condition likely to result in significant cost to Australian community – stable chronic myeloid leukaemia –  opinion of medical officer of commonwealth taken as correct – discretion to waive requirement – unlikely to result in undue cost to community – compliance with and response to treatment – no functional impairment and continued full-time work in sector with skill shortage – long residence and established social and community ties – access to savings – no significant information about availability of treatment in home country – members of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 186.224, 186.311, Schedule 4, criterion 4007(1)(c)(ii)(A), (2)(b)(i)

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 lodged 18 April 2019 for review of a decision made by a delegate of the Minister for Home Affairs on 8 April 2019 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visas on 13 May 2017. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme). The primary applicant is a 38 year old citizen of the Federal Democratic Republic of Nepal, and the secondary applicant is the primary applicant’s spouse and member of the family unit.

3. The criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Cook (ANZSCO 351411).The applicant’s sponsor is a registered Australian corporation, Crestkey Pty Ltd t/as Calypso Café, in the ACT (“the sponsor / nominator”).

5. The delegate refused to grant the visas because the applicant did not meet cl 186.224(1) of Schedule 2 to the Regulations because the applicant did not meet public interest criterion 4007 (“PIC 4007”). PIC 4007 requires that the applicant, having been assessed by a Medical Officer of the Commonwealth (“MOC”), is free from a disease or condition likely to result in significant cost to the Australian community in the areas of health care and community services.[1]

   [1] 4007(1)(c)(ii)(A)

6. Both applicants appeared before the Tribunal on 14 March 2022 to give evidence and present arguments. The Tribunal received oral evidence from the primary review applicant and from the secondary applicant. The hearing was conducted virtually using MS Teams and in accordance with the Tribunal’s COVID-19 Practice Direction. The Tribunal determined this was the most appropriate method for providing a mechanism of review that is fair, just, economical, informal, and quick, and in accordance with its statutory objective.

7. No concern was raised as to the format for the hearing. No extension of time or adjournment request was sought and the applicant was ready to proceed. No technical issues communicating were discerned during the hearing.

8. The applicants were represented in relation to the review by a migration agent who also appeared for the hearing and made submissions.

9. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this review is whether the visa applicant meets PIC 4007, also referred to as ‘the health requirement’, for the grant of the visa. PIC 4007, as it applies to this case, is extracted in the attachment to this decision.

11. It requires the applicant, in certain circumstances, to undergo medical assessment, and to be free of certain diseases or conditions that may impact on an Australian citizen and permanent resident, both as to available services and to cost.

12. There is a discretion to waive the requirement where the applicant satisfies all other criteria for the grant of the visa and the Minister is satisfied that the decision would be unlikely to result in undue cost or undue prejudice to access to health care or community services of an Australian citizen or permanent resident.

13. The applicant in this case has a condition diagnosed as stable myeloid leukemia. The delegate found on the basis of a MOC opinion that the health requirement should not be waived.

    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) and (c), reg 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: reg 2.25A(3).

    Is a MOC opinion required?

19. On the evidence before the Tribunal, a MOC opinion is required. The application is not for a temporary visa and is not made from a specified country.

20. There is information before the Department and the Tribunal that the applicant may not meet the health criteria requirements.

21. 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.

22. To be correct, 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. 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 suffered by the applicant.

23. In this instance the MOC has provided two opinions:

    ·28 December 2017 – the MOC identifies the applicant as a 34 year old person with a stable form of Chronic Myeloid Leukemia (in remission) – assessed as to form and severity against a hypothetical person with the same condition and severity and which is ‘likely to be permanent’; costs for pharmaceuticals and medical services are assessed as ‘significant’ at $1,232,100.

    ·5 March 2019 – the MOC identifies the same condition as a stable form of Chronic Myeloid Leukemia – assessed as to form and severity against a hypothetical person with the same condition and severity and which is ‘likely to be permanent’; costs for pharmaceuticals and medical services are assessed as ‘significant’ and have increased to $1,958,040.   

24. Invited by the Tribunal to update the opinions and at the request of the applicants, the Review Medical Officer of the Commonwealth (“RMOC”) opined:

    ·14 January 2022 - The applicant was assessed as a 33 year old person to reflect his age at the time of the visa application. The applicant’s condition is identified as a chronic form of Chronic Myeloid Leukemia, ‘stable and well controlled while being managed with pharmaceutical treatment including immunomodulatory therapy’. The RMOC opined that a hypothetical person with the same condition and severity and which is ‘likely to be permanent’ would ‘be likely’ to require long term specialist health care services and ongoing pharmaceutical treatment. The RMOC assessed the likely cost for medical services and pharmaceuticals for the relevant period from May 2017 to May 2027 at $424,200.

25. All three opinions found that the applicant was free from tuberculosis or condition being a threat to public health in Australia or a danger to the Australian community, and that granting the applicant a visa would not be likely to prejudice access by an Australian citizen or permanent resident to health care or community services.

26. On 1 July 2019, the Department updated its policy for assessing the health criteria. In particular, the new policy raised the threshold level for ‘significant costs’ from $40,000 to $49,000 for all cases. As of 1 September 2021, the policy threshold for the level of costs regarded as ‘significant’ was increased to $51,000.

27. For permanent and provisional visa applicants only, who have a permanent condition,[2] as in this instance, policy reduced the assessment period from ‘lifelong costs’ to costs for a maximum period of 10 years.[3] When assessing those costs, the Tribunal understands that the RMOC in this instance has estimated those costs for a period up to the maximum of 10 years, commencing from the time of visa application.

    [2] Meaning (Policy) the applicant has a condition that is permanent and the course of the disease is inevitable or reasonably predictable (65% likelihood) beyond the five year period – in these circumstances, the applicant would be assessed for a maximum of 10 years.

    [3] Policy – Migration Regulations Sch4 - 4005-4007 - The health PIC - Sch4/4005-4007 - The health requirement - The MOC Assessment - Significant costs (re-issued 01/07/2019).

28. As indicated, the Tribunal must take the RMOC opinion as correct. The Tribunal finds the RMOC has applied the correct test, referred to above. The Tribunal further finds that the cost estimated by the RMOC at $424,200 exceeds the policy guide of $51,000 as to the estimate of ‘significant costs’, otherwise not defined.

29. The Tribunal finds therefore that the provision of specialist health care services as stated by the RMOC are likely to result in a significant cost to the Australian community regardless of whether the specialist health care services will actually be used in connection with the applicant.

30. Accordingly, based on the opinion of the RMOC, the applicant does not satisfy PIC 4007(1) (c)(ii)(A) and therefore does not meet PIC 4007(1)(c).

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

31. 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).

32. 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’). 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 [4].

    [4] Bui at 47

33. Department policy provides guidance on factors that may be relevant to this, including: the need for and availability of access to private health treatment; close family, social, emotional and community ties to Australia; the impact on any Australian citizen and minor children; occupational skills of the applicant or family members; the applicant’s immigration history; factors that may mitigate the costs or prejudice to access to care or services involved; and the potential contribution to Australia by the applicant or family members. Other possible compassionate circumstances or compelling circumstances that may weigh in the evaluative judgment in a particular case are not limited.

    Is there ‘undue prejudice’ to the access to health care or community services of an Australian citizen or permanent resident?[5]

    [5] PIC 4007 (2)(b)(ii)

34. The RMOC has opined (as did the MOC) that there is no ‘undue prejudice’ to the access to health care or community services of an Australian citizen or permanent resident. The Tribunal must accept that opinion and does not consider that issue further.

    Is there ‘undue cost’ to the Australian community?[6]

    [6] PIC 4007 (2)(b)(i)

35. The Tribunal has considered the following factors in its evaluation of the possible circumstances of ‘undue cost’ and which may weigh in consideration of the exercise of the waiver in PIC 4007 and whether the requirement in this instance might be waived.

36. Following the hearing the applicant was asked by the Tribunal to provide any further information considered relevant to address the ‘undue cost’ consideration.

37. On 18 March 2022, the applicant provided further multiple submissions, which included:

    ·Financial information on tax and superannuation and personal assets, supported by statement from an accountant;

    ·Life expectancy submission as to time for calculation and cost to community

    ·Skill shortage

    ·Bank statement and personal asset valuations

    The Tribunal refers to these submissions in the reasons provided below.

    Access to and availability of private health treatment

38. The applicant gave evidence that he was first diagnosed with the condition following a visit to his GP in April 2017. Since that time, the applicant has spent a total of two weeks in hospital and under the supervision of a treating specialist, Dr Bennett from Canberra Hospital, who has treated the applicant since his first diagnosis in 2017 and regularly reported on his condition. Dr Bennett’s reports were made available to the MOC and to the RMOC.

39. On 6 December 2017, Dr Bennett produced a report for the MOC where he describes the condition as “incurable without a blood/bone marrow stem cell transplant, however this treatment is no longer necessary in the vast majority of individuals with this disease since the advent of target tyrosine kinase inhibitors...in the early 2000s”. He continues that “It is presumed  that patients with this condition will go on to lead normal and productive lives so long as they are adherent to the prescribed treatment and show an appropriate response to therapy which is the case in the vast majority of individuals.”

40. The doctor reported that the applicant had shown an “early haematological response with normalisation of his blood counts and he continues to work full-time”. He estimated that the research-based 10 year overall progression-free survival rate for the condition was 82%.

41. The treating specialist produced similar reports for review on 12 December 2018, 25 February 2020, 3 June 2020, and 28 September 2021 (most recent). In the most recent report, the doctor states the applicant “has no functional impairment and clinical plan should continue.” All 5 reports indicate that since initial diagnosis in 2017, the applicant has continued to work full-time, has stabilised under the treatment plan with “Good compliance with medications. Continues to have major molecular response.”

42. The reports also reflect on life expectancy. The reports indicated at commencement in 2017, a life expectancy of 10 years. Halfway through that period by September 2021, the expectancy calculates a further 4.67 years. This is the remaining period for the purpose of meeting the current policy 10-year guideline.[7]

    [7] Paragraph 26 above refers

43. The Tribunal asked the applicant questions about his current treatment and medication plan. He states he has access to the specialist (Dr. Bennett) at Canberra Hospital for review about every 6 months, now by telephone consultation, with blood test results. He continues the current treatment/medication plan prescribed, which is a daily ‘Dasatinib’ inhibitor tablet. No other active treatment or medication is involved. He purchases one bottle per month of the tablets, which he says he is told he will need to take for the rest of his life. He says otherwise, he is asymptomatic for the condition.

44. He was asked about the costs involved. He said he covers the cost of reviews by Dr Bennett and blood tests. The tablets under the PBS guide are charged at $42.50 per bottle per month. He said the actual cost of one bottle of the tablets without PBS is $3,247.11. Calculated over the remaining 4.67 years (57 months), the accumulated cost will be $2,422.50 to the applicant, and (unsubsidised) $185,085.27 against the PBS (Commonwealth funded) cost.

45. The applicant said that other than for the initial diagnosis and two weeks in hospital in 2017, the condition has had no other effect on his daily life before the diagnosis, that he has continued to work full time as a cook for his employer, and that no other treatment or medication has been recommended or prescribed other than the tablet. He said the life expectancy is calculated in 10 year cycles and he is more than halfway through the first calculation. In 2027, the life expectation will be re-calibrated to 10 years for that cycle, and so on, as confirmed in the medical reports as to overall life expectancy and ‘normality’ in terms of daily living.

46. The Tribunal finds on this evidence that the applicant has a stable condition which is treatable and currently supported by access to an appropriate treating specialist who regularly (twice yearly) reports to the applicant on progress and treatment. The likely cost of the treatment on current estimates will be at least $185,085.27 against the PBS.

47. The Tribunal attributes some weight to this consideration in favour of exercising the waiver.

    Family, social and emotional and community ties

1. The applicant has been in Australia since 2008, first as a student then working full time since 2015 as a cook.

2. The Tribunal is satisfied that the applicant has established community ties, especially among the local Nepalese community. The applicant gave evidence he is vice president of the Tamu Sama Association in Canberra/Queanbeyan which organises an annual Nepalese festival and which attracts large numbers of visitors from the local community.

3. He is also responsible for organising the local Holy Festival for the Indian and Nepalese community and which attracts around 250 people for the event. The festival books Queanbeyan Park from the local council and he is part of the organising committee.

4. The applicant is also a member of the local Nepalese football club, where he plays and coaches

5. These community connections by the applicant demonstrate a commitment to social interaction and involvement and the Tribunal places some weight on this information.

   Effect on Australian citizen or permanent resident and minor children

6. The applicant has two minor children, aged 2.9 years and 5 months. The children are part of the family unit, and there is no evidence or suggestion that the family will not remain as a family unit.

7. The children are very young and have yet to form significant relationships outside the family. The Tribunal is mindful that if the applicant is compelled to return to Nepal the family will remain together and there is no evidence the children will be significantly impacted.

8. The Tribunal places some weight on the consideration that the children will be minimally impacted by the family remaining together and returning to Nepal. The applicant has family in Nepal including his brother and sister-in-law and parents, who are supportive in that environment.

   Occupational skills of the applicant or family members

9. The Tribunal is mindful that the applicant works in an industry where there is a notable skill shortage. The applicant is supported by his employer and regarded as dedicated and very experienced.

10. The secondary applicant works full-time as a bookkeeper, and commenced the employment in 2015, save for periods of maternity leave. The secondary applicant’s mother is currently on a visitor visa staying with the family in Queanbeyan, and to assist the applicants with looking after the children.

11. The Tribunal places some weight on the applicants’ continued employment over many years, and the family support. The secondary applicant also has a maternal cousin living in Sydney who is a permanent resident, and with whom she is in close contact.

    The applicant’s immigration history

12. The applicant has complied with his previous visa conditions and there is no evidence before the Tribunal of any concerns raised as to his visa activity over approximately 14 years. The applicant held a Subclass 457 visa  from March 2015 until ceasing in 2019 and brought the current application in May 2017. He said in evidence he had married in 2011, and as he was now well-established in Australia, sought to make Australia the family’s permanent home.

13. He used his student years to obtain firstly accounting qualifications, and then certificate III in cookery, and certificate IV in hospitality.

14. There is nothing in the information available to the Tribunal which demonstrates any issue or which might be the basis for concern as to the applicant’s immigration history and reasons for supporting the application.

    Factors that may mitigate the costs or prejudice to access to care or services involved

15. The applicants rely upon their financial circumstances offsetting the predicted ‘undue’ costs estimated by the RMOC. This is based upon the applicants’ projected joint earnings and tax payments, savings, and personal assets. The recent submissions show the accountant’s estimates of tax contributions by both applicants[8]. It is estimated that for the balance of the relevant period from 2017-2027, the applicant’s total annual salary[9] is $691,381 with estimated tax of $125,861calculated at current ATO rates. The applicant’s superannuation for the period is calculated at $73,647.

    [8] MKA & Associates 16 March 2022

    [9] At earnings $54,728,$54,331,$55,139,$57,158 respectively for each of the years 2017-2020;

16. Similarly, the earnings for the secondary applicant[10] in the same period total $544,150 with total tax payable of $77,452 with superannuation of $58,737.

    [10] Based on her salary of $44,150

17. The applicant has submitted in evidence the ATO assessments for each applicant for the calculation for the relevant period over 10 years. The applicant has submitted as current (16 March 2022) CBA statement of the applicant’s current savings which total $100,615.08.

18. The applicants have submitted joint assets comprising a 2017 Mazda motor vehicle and personal jewellery, total value at February 2022 of $47,000. The applicant has provided copies of his current superannuation savings which total $62,361.71.

19. The Tribunal concludes from the applicant’s financial information available, which it accepts, that both applicants have full-time employment and independent means, access to a reasonable sum in cash savings and the ability to support themselves without any other government assistance. The evidence also demonstrates a consistent pattern of regular full-time employment over a number of years, without interruption and in circumstances where both applicants are supported by their respective employers and where both have indicated a genuine intention to continue working as previously.

20. The Tribunal finds that the employment and financial outcomes described above are a significant offset to what otherwise might be some considerable cost to the community. As already found in the MOC and RMOC opinions, there is no anticipated prejudice to access to care or services involved.

    The potential contribution to Australia by the applicant or family members

21. The Tribunal accepts that the applicants have demonstrated significant community and family ties to Australia and are making a contribution to the local Nepalese community which is also benefiting the local Canberra and Australian community with regard to the applicant’s activities as an organiser and promoter of festivals and local sporting events.

    Other relevant factors

22. The Tribunal has looked closely at the medical aspects of the applicant’s diagnosed condition, his successful response to treatment and his ability to continue working and leading a normal lifestyle. He says he is not impeded in any way, participates in life as he did before the diagnosis, and fully supports his family.

23. The Department’s policy guidelines reflect that in assessing whether there is a basis to waive the 4007 health criteria, decision-makers should take into account any compelling and compassionate circumstances of the applicants, for example, close family links to Australia and/or reasons why the family would find it difficult to return to their home country.[11]

    [11] Policy – Migration Regulations - Sch4/4005-4007 – The health requirement - Health waivers – The PIC 4007 health waiver – what does ‘undue’ mean? (re-issue date 14/10/2016).

24. What is ‘compelling and compassionate’ will vary in each case. The Tribunal asked the applicant why he would not want to return to Nepal with his family. He responded simply saying he will “probably die”, as the access to the same health services and available medication as in Australia is simply not available. The Tribunal was unable to find any significant information as to the availability of the same treatment for the condition in Nepal. It appears however, that the applicant’s current treatment is effective, though that is not so in every case and for some, the only other available treatment is stem cell transplant, which is “the only way to actually cure CML, but there can be serious complications. For this reason, transplants are typically only done if medications aren’t effective.”[12]

    [12] - Medically reviewed by Christina Chun, MPH — Written by Stephanie Pierce — Updated on August 27, 2019

25. There is no evidence as to the cost of such alternative treatment and which is not contemplated as the applicant has responded well to the use of inhibitors and is still young, in a chronic phase of the condition, and on the available medical evidence is currently in remission.

26. The applicant told the Tribunal at hearing that even without  the condition, he wants to remain in Australia where he has established his family. He said it would be very difficult for his family in Nepal to support them on their return,  as he would have no employment, no access to suitable and effective medication and would find it very difficult to adjust after living in Australia for 13 years. This submission is supported by the psychological evidence tendered in support, illustrating the anxiety and stress occasioned by the uncertainty of this outcome.

27. The Tribunal finds these submissions are compelling within the framework of the legislation and the criterion for PIC 4007.

    Summary

28. 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’.

29. The Tribunal also accepts that there remains a degree of uncertainty about the future in terms of what cost may be involved for the applicant’s condition. It is not an easy calculation to foresee and may vary significantly depending upon happenstance. Overall, the Tribunal is satisfied that:

    ·The applicant is a skilled cook, working in a sought after occupation with an acknowledged skill shortage;

    ·The applicant has lived in Australia, principally in the Queanbeyan / ACT area for the best part of 14 years;

    ·The applicant has established his wife and now two young children in that environment since 2011 and they have integrated well into the community with both applicants employed and actively involved in local community activities;

    ·The applicant’s condition has not progressed beyond the initial chronic phase and his specialist gives a positive diagnosis over a lengthy period.

    ·The applicants have access to independent financial means in the form of their savings to date which total in excess of $200,000.

30. 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 further treatments such as a transplant, at some point in the future, they are not undue given the applicant’s personal circumstances.

31. Weighing the possible future circumstances for the applicant against the actual present circumstances, the Tribunal finds that  the weight of evidence favours a waiver of the requirements in PIC 400791)(c), and that the costs to the Australian community are not ‘undue’ given the applicant’s personal circumstances.

32. For these reasons, the Tribunal is satisfied that the granting of the visa 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.

    Second named applicant

33. The second named applicant was found not to meet cl.186.311 as she was not the member of the family unit of a person who holds a Subclass 186 visa, granted on the basis of satisfying the primary criteria.

34. Given the findings above and noting that the PIC 4007 requirement for the first named applicant has been waived and noting the second named applicant otherwise meets the secondary criteria in cl.186.311, the appropriate course is to remit the application for the visa to the Minister, to consider the remaining criteria for the visa.

    DECISION

35. The Tribunal remits the application for  Employer Nomination (Permanent) visas for reconsideration, with the direction that the first named applicant 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.

    Alan McMurran

    
    

    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.