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

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).
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.
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.
In the present case, the first named applicant (the applicant) is seeking the visa in the Temporary Residence…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gurung (Migration)

Details

AGLC: Gurung (Migration) [2022] AATA 784
Case: [2022] AATA 784
Decision Date: 25 March 2022

CaseChat Overview and Summary

This matter concerned an appeal by Mr. Gurung (the applicant) against a decision regarding his application for a Subclass 186 Employer Nomination (Permanent) visa, specifically under the temporary residence transition stream. The central dispute revolved around whether the applicant met the health requirements stipulated by Public Interest Criterion (PIC) 4007 of the Migration Regulations 1994. The case was heard by the Administrative Appeals Tribunal.

The Tribunal was required to determine if the applicant was free from diseases or conditions that could pose a threat to public health, endanger the Australian community, or likely result in significant costs to the Australian community through the need for health or community services, or prejudice access to such services for Australian citizens and permanent residents. A key aspect of the determination involved considering the applicant's diagnosis of stable chronic myeloid leukaemia and whether the discretion to waive the health requirement could be exercised in his favour.

The Tribunal reasoned that while the opinion of a Medical Officer of the Commonwealth (MOC) is generally taken as correct in assessing health requirements, the regulations provide for a waiver of the requirement under PIC 4007(2) if the applicant meets all other visa criteria and the Minister is satisfied that granting the visa would be unlikely to result in undue cost or prejudice to access to health care. In this instance, the Tribunal noted that the applicant had a stable chronic myeloid leukaemia, and that he otherwise met the secondary criteria for the visa. The Tribunal also considered factors such as the applicant's compliance with treatment, lack of functional impairment, continued full-time work in a skill shortage sector, long residence and established ties, and access to savings.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met PIC 4007(2)(b) for the purposes of clause 186.224 of Schedule 2 to the Regulations, indicating that the health requirement had been waived.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 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. 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. 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. 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))? 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) 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?

Decision

Reasons for decision

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 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 McMurranMemberATTACHMENTMigration Regulations 1994Schedule 44007(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.

Ratio Decidendi

Legal Principle Established

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