Gurung (Migration)

[2023] AATA 578

Gurung (Migration) [2023] AATA 578 (24 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Sunita Gurung
Mr Prem Bahadur Gurung

REPRESENTATIVE:  Mr Niraj Shrestha (MARN: 0745526)

CASE NUMBER:  2210299

HOME AFFAIRS REFERENCE(S):          BCC2021/1094929

MEMBER:Alison Mercer

DATE:24 February 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for reconsideration, with the direction that the applicants meet the following criteria for a subclass 190 visa:

·PIC 4005(1)(c) of Schedule 4 to the Regulations for the purposes of cl 190.216 of Schedule 2 to the Regulations.

Statement made on 24 February 2023 at 1:12pm

CATCHWORDS
MIGRATION – Skilled Nominated (Permanent) (Class SN) visa – Subclass 190 (Skilled – Nominated) – health criteria – severe chronic renal disease – kidney transplant – new MOC opinion – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 190.216; Schedule 4, PIC 4005

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicants Skilled Nominated (Permanent) subclass 190 (Skilled – Nominated) visas under s 65 of the Migration Act 1958 (Cth) (the Act). The applicants applied for the visas on 17 May 2021. The delegate refused to grant the visas on 1 July 2022.

2. The delegate made the decision on the basis that the first named applicant did not meet cl.190.216 of Schedule 2 to the Regulations, which required, amongst other things, that all applicants satisfied the health criteria in Public Interest Criterion 4005 (PIC 4005) of Schedule 4 of the Regulations. The delegate found that a Medical Officer of the Commonwealth (MOC) had provided an opinion on 9 September 2021 that the second named applicant (the first named applicant’s husband) did not meet PIC 4005(1)(c) because he had severe chronic renal disease due to IgA nephropathy and had commenced renal replacement services. The MOC assessed that the provision of services to a hypothetical person with the same condition as the applicant, at the same severity, would be likely to require long term specialist health care services, including but not limited to renal replacement and kidney transplant, and that the provision of such health care services would be likely to result in a significant prejudice to access to the Australian community in the areas of health care. The MOC noted that dialysis and renal transplantation were currently services in short supply in Australia, according to the Department of Health. The MOC considered that the applicant’s condition was likely to be permanent, and that provision of the identified health care and/or community services would be likely to result in a significant coset to the Australian community in the areas of health care and/or community services, and prejudice the access of Australian citizens and permanent residents to health care or community services. A second MOC opinion, provided after the applicants supplied additional material, reached the same conclusions on 15 February 2022.

3. The delegate also refused to grant the second named visa applicant a visa because he did not meet the secondary visa criteria requiring him to be a member of the family unit of a person who held a subclass 190 visa, and there was no evidence that he met the primary visa criteria in his own right.

4. The Tribunal received a review application from the applicants on 15 July 2022. It was accompanied by a copy of the delegate’s decision and an authority by which the applicants appointed a registered migration agent, Mr Niraj Shreshta, as their representative and authorised recipient for correspondence.

5. On 26 July 2022, the Tribunal invited the applicants to obtain a further MOC opinion, and to provide supporting material to do so, if they wished. On 28 August 2022, the applicants provided an authority to request a further MOC opinion and the fee for this. The Tribunal referred their request to the Department on 23 August 2022 and on 26 August 2022, an MOC determined again that the second named applicant did not meet PIC 4005(1)(c) due to his kidney condition.

6. On 23 January 2023, the Tribunal wrote to the applicants via their agent, pursuant to s.359A of the Act, to invite them to provide comments or a response to the MOC opinion of 26 August 2022, as it was potentially adverse to their case. They were requested to provide their comments or response by 7 February 2023.

7. On 3 February 2023, the applicants responded via their agent to advise that the second named applicant had undergone a kidney transplant in Nepal, and should now be regarded as meeting PIC 4005(1)(c).

8. On 7 February 2023, the Tribunal wrote to the applicants inviting them to request a new MOC opinion based on the above information, as the Tribunal did not have the legal power to override the MOC opinion of 26 August 2022, despite it being based on outdated information.

9. On 17 February 2023, the applicants and their agent provided additional medical information from the second named applicant’s medical specialists in Nepal, and an authority and fee to obtain a further MOC opinion. The Tribunal referred this to the Department on 20 February 2023.

10. On 24 February 2023, the Tribunal received a new MOC opinion dated 23 February 2023 in which the MOC found that the second named applicant satisfies the health requirement for a permanent stay in Australia based on the available medical and radiological results.

11. In light of the new evidence received, the Tribunal is satisfied that the criterion in dispute is met and has concluded that the matter should be remitted for reconsideration.

12. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicants on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

    DECISION

13. The Tribunal remits the application for reconsideration, with the direction that the applicants meet the following criteria for a subclass 190 visa:

    ·PIC 4005(1)(c) of Schedule 4 to the Regulations for the purposes of cl 190.216 of Schedule 2 to the Regulations.

    Alison Mercer
    Member