Hipolito (Migration) - [2018] AATA 5390

Hipolito (Migration) [2018] AATA 5390 (22 November 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Alejandro Barlis Hipolito
Mr Alan Lacbawan Hipolito
Mr Joseph Lacbawan Hipolito
Mr Degar Lacbawan Hipolito
Ms Josefa Lacbawan Hipolito
CASE NUMBER:  1610380
DIBP REFERENCE(S):  BCC2015/2851598
COUNTRY OF REFERENCE:                  Philippines
MEMBER:Cathrine Burnett-Wake
DATE:22 November 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) visas.
Statement made on 22 November 2018 at 9:12am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – health criteria – moderate intellectual impairment – waiver of requirement – cost to Australian community – applicant’s financial and earning capacity – access to family support – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.25A; Schedule 2, cl 187.224, Schedule 4, PIC 4007
CASES
Bui v MIMA (1999) 85 FCR 134
Robinson v MIMIA (2005) 148 FCR 182
Ramlu v MIMIA [2005] FMCA 1735
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 29 June 2016 to refuse to grant the applicants Regional Employer Nomination (Permanent) visas under s.65 of the Migration Act 1958 (the Act).
The visa applicants applied for the visas on 30 September 2015. The delegate refused to grant the visa as the first named applicant (now referred to as Mr Hipolito) did not satisfy cl.187.224 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4007 of Schedule 4 to the Regulations was not met.
Mr Hipolito appeared before the Tribunal on 8 October 2018 via video conference to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the visa applicant meets Public Interest Criterion (PIC) 4007 as required by the criteria for the grant of the visa. Public Interest Criterion 4007, as it applies to this case, is extracted in the attachment to this decision. It requires the applicant, in certain circumstances, to undergo medical assessment, and to be free of certain diseases or conditions that may impact on the community. This last requirement may be waived in certain circumstances. The applicant in this case Master Alan Lacbawan Hipolito (Alan), who is a migrating family member of Mr Hipolito’s family unit, and who is residing in the Philippines. On 18 January 2016, Alan was assessed by a Medical Officer of the Commonwealth (MOC) as not meeting PIC4007(1)(c). The delegate also decided not to waive PIC4007(1)(c) as they were not satisfied that the significant costs identified were outweighed by mitigating factors and/or compassionate and compelling circumstances.
Background
Mr Hipolito was first granted a subclass 457 visa on 8 June 2012, which was valid until 8 June 2016. A…

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.

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Details

Case: [2018] AATA 5390
Decision Date: 22 November 2018

CaseChat Overview and Summary

This matter concerned an appeal to the Administrative Appeals Tribunal regarding the refusal of a Regional Employer Nomination (Permanent) visa (Subclass 187). The applicant, Master Alan Lacbawan Hipolito, was a migrating family member of Mr Hipolito, who held a Subclass 457 visa and had been nominated for the permanent visa. The core of the dispute centred on whether Alan met Public Interest Criterion (PIC) 4007, specifically concerning his health.

The Tribunal was required to determine if Alan met PIC 4007(1)(c), which mandates that an applicant be free from a disease or condition that would likely require health or community services resulting in significant cost to the Australian community or prejudice access to such services for Australian citizens or permanent residents. The Tribunal also considered whether the waiver provision under PIC 4007(2) should apply, which allows for the waiver of this criterion if granting the visa would be unlikely to result in undue cost to the Australian community or undue prejudice to access to services.

The Medical Officer of the Commonwealth assessed Alan as having moderate cognitive impairment due to a global developmental disorder, including mild intellectual impairment and severe language delay. This condition was likely to be permanent and would necessitate special education services, state disability services, carer payment and allowance, disability support pension, and supported accommodation in adulthood, leading to significant costs for the Australian community. The Tribunal found that the delegate had correctly determined that these identified significant costs were not outweighed by mitigating factors or compassionate and compelling circumstances, and therefore the waiver was not granted.

Consequently, as Alan did not satisfy the requirements of PIC 4007, the Tribunal affirmed the decision not to grant the Regional Employer Nomination (Permanent) visa.

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 decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this review is whether the visa applicant meets Public Interest Criterion (PIC) 4007 as required by the criteria for the grant of the visa. Public Interest Criterion 4007, as it applies to this case, is extracted in the attachment to this decision. It requires the applicant, in certain circumstances, to undergo medical assessment, and to be free of certain diseases or conditions that may impact on the community. This last requirement may be waived in certain circumstances. The applicant in this case Master Alan Lacbawan Hipolito (Alan), who is a migrating family member of Mr Hipolito’s family unit, and who is residing in the Philippines. On 18 January 2016, Alan was assessed by a Medical Officer of the Commonwealth (MOC) as not meeting PIC4007(1)(c). The delegate also decided not to waive PIC4007(1)(c) as they were not satisfied that the significant costs identified were outweighed by mitigating factors and/or compassionate and compelling circumstances. Background Mr Hipolito was first granted a subclass 457 visa on 8 June 2012, which was valid until 8 June 2016. A subsequent 457 visa was granted on 27 July 2016, which is valid until 27 July 2020. Mr Hipolito’s 457 visas have been granted on the basis of his employment as an Automotive Spray Painter with Automotive Holdings Group Limited, who have also nominated him for this Regional Employer Nomination (Permanent) visa under review. Mr Hipolito’s dependant family members were not attached as secondary applicants to his 457 visas, they have remained in the Philippines. However, they were attached as secondary applicants to the Regional Employer Nomination (Permanent) visa. The grant of a Subclass 187 visa requires an applicant to meet the health requirements along with other regulatory criteria in order for the visa to be granted. On 18 January 2016, a Medical Officer of the Commonwealth (MOC) assessed Alan as not meeting the health requirement. The MOC’s opinion stated:The applicant is an 8 year old person with:-Moderate cognitive impairmentForm and severity of the applicant’s condition: The applicant has moderate cognitive impairment due to global development disorder where there is mild intellectual impairment associated with severe language delay. He has difficulty communicating verbal and requires assistance with some aspects of personal care. He requires special education program and ongoing occupational and speech therapy. Provision of services to a hypothetical person with the applicants condition: It is likely that a hypothetical person with a condition of this form and severity will be eligible for special education services, state disability services, carer payment and allowance, disability support pension and supported accommodation in adulthood. This condition is likely to be permanent. I consider that a hypothetical person with this disease or condition, at the same severity as the applicant, would be likely to require health care or community services during the period specified above.These services would be likely to include:Special education servicesState disability servicesCommonwealth disability servicesResidential care servicesProvision of these health care and/r community services would be likely to result in a significant cost to the Australian community in the areas of health care and/or community services.

Decision

Reasons for decision

As the applicant has not satisfied the requirements of PIC 4007, the decision under review must be affirmed.DECISION The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) visas.ATTACHMENTMigration 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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