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

1. 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).

2. 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.

3. Mr Hipolito appeared before the Tribunal on 8 October 2018 via video conference to give evidence and present arguments.

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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

6. 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.

7. 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.

8. 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.

9. The MOC’s opinion stated:

   The applicant is an 8 year old person with:

   -Moderate cognitive impairment

   Form 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 services

   State disability services

   Commonwealth disability services

   Residential care services

   Provision 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.

10. The health waiver information, forming part of the MOC’s opinion and provided to the Tribunal by Mr Hipolito, details that the estimated cost to the Australian community of the services that the applicant (Alan) is likely to access would be $3,072,000. The MOC also outlined that in their opinion, granting a visa to the applicant (Alan) for the assessed period of stay would not be likely to prejudice the access of an Australian citizen or permanent resident to health care or community services

11. 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 Alan did not satisfy PIC 4007, made a finding that the applicant did not meet the requirements of regulation 187.224(1) of the Migration Regulations. PIC 4007 is a one fails all fail criteria.

12. Mr Hipolito submitted an application for review with the Tribunal on 29 June 2016. After the review was constituted to a Member, he was given an opportunity to obtain a further opinion for Alan by a Review Medical Officer of the Commonwealth (RMOC) in June 2018.

13. On 9 August 2018, the Tribunal received a ‘Form 884: Opinion of a review medical officer of the Commonwealth’ from Bupa Medical Visa Services. The opinion was that the applicant, being, Alan Hipolito, does not meet the health requirement.

14. The opinion states:

    The applicant has been assessed against Public Interest Criterion (PIC) 4007 [see attached extract] for the period of a permanent stay in Australia.

    The applicant does not satisfy sub-subparagraph PIC 4007(1)(c)(ii)(A) in Schedule 4 to the Migration Regulations.

    The applicant is a 10 year old person with:  - Moderate intellectual impairment  Form and severity of the applicant’s condition: the applicant has moderately severe functional and intellectual impairment of unknown aetiology. He requires assistance with activities of daily living (more than the norm for his age) and supported education. Provision of services to a hypothetical person in Australia with the same conditions as the applicant and at the same severity: a hypothetical person in Australia with the same condition as the applicant, and the same severity, would be likely to require community services including but not limited to special education as a child, carer support, financial support as an adult, and state disability services. 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 services

    Commonwealth disability services

    State disability services

    Provision of these health care and/or 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.

    In preparing this opinion, I have had regard to the information available to date concerning the applicant, including, but not limited to the panel physician examination and activities of daily living assessment of 17 September 2015; reports from Millicent Mae Fronda-De Vera – development paediatric evaluation summary report (evaluation date 8 December 2015), summary of development evaluation (8 December 2015, summary of development evaluation (21 September 2012; mini-mental and activities of daily living assessments (8 December 2016); Documentation from Baguio City Special Education Centre – Educational Progress Report SY 2017-2018, and progress report school year June 2015-March 2016; psychological report (Rizza Manao 29 July 2015), report from D Frances XM Dimalamta (received date 23 July 2018) and correspondence from Alejandro Hipolito (5 October 2016, and date received 23 July 2018). Other documentation related to health insurance and finances was also provided but is not relevant to the Medical Officer of the Commonwealth or Review Medical of the Commonwealth providing an opinion in relation to meeting or not meeting the Health Requirement.

15. On 16 August 2018, the Tribunal wrote to Mr Hipolito, pursuant to s359A, inviting him to comment on information that could be the reason or part of the reason for affirming the decision under review, being the adverse RMOC opinion for Alan. Mr Hipolito provided a response which stated:

    The PIC 4007 my honest comment is I can cover my sons need. I am a painter and have fulltime job at Automotive Holdings Group Perth W.A.

    Last year I went to Durham School in Bayswater and quote me 5000’s a year for special education. And as for health Alan is physically fit I don’t think he need to go to health service I would probably get disability insurance that fits for him.

    My idea is has options my wife is also skilled she can operate cnc machine/lathe machine and it was done in south Korea. She could get a right trade certificate and find a good job.

    I saw some of my mates get their parents to look after their kids so they can work together. I would probably do same. Or let Alan study in Baguio city every once in a whilst its lot cheaper. So that only idea I probably as my wife’s mom to look after the kids and my elder son is turning 17 years old in May he’s also interested in culinary

    Anyway thank you all and I just let you know that I can support Alan. Need not worry about undue cost to the Australian community.

16. Documents supplied to the Tribunal in support of the application, which it has considered include:

    • A selection of photos of Alan participating in household tasks and playing with other children;
    • Pamphlet of a school bus service operated by the Western Australian Public Transport Authority;
    •  Medibank Private fee structure pamphlet;
    • PAYG payment summary for Mr Hipolito for the 2018 financial year reflecting a gross payment of $64,006;
    • PAYG payment summary for Mr Hipolito for the 2017 financial year reflecting a gross payment of $70,148;
    • PAYG payment summary for Mr Hipolito for the 2016 financial year reflecting a gross payment of $66,641;
    • PAYG payment summary for Mr Hipolito for the 2015 financial year reflecting a gross payment of $56,889;
    • PAYG payment summary for Mr Hipolito for the 2014 financial year reflecting a gross payment of $55,471;
    • PAYG payment summary for Mr Hipolito for the 2013 financial year reflecting a gross payment of $51,551;
    • Letter from Mr Hipolito dated 29 August 2018;
    • A selection of medical, physical and school reports regarding Alan ranging from 2015-2018 (also forwarded to the RMOC);
    • Letter from Mr Hipolito dated 28 July 2018;
    • Letter from Mr Hipolito dated 5 October 2016;
    • MOC opinion dated 18 January 2016.

    Is the applicant free from the relevant diseases or conditions (PIC 4007(1)(a), (b), (c))?

17. 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.

18. 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.

19. 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.

20. As the applicant in this case has applied for a permanent visa, the exemption provision in PIC 4007(1B) does not apply.

21. 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?

22. 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.

23. 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 and RMOC both meet the relevant requirements and are correct. Based on the MOC and RMOC opinions, the Tribunal is satisfied that the applicant (Alan) does not meet PIC 4007(1)(c).

    Evidence at hearing

24. Mr Hipolito outlined that he has been working and living in Australia alone, whilst his family members, his wife and children remain in the Philippines. Mr Hipolito told the Tribunal that he returns to the Philippines once per year for four weeks over the Christmas period to see his family. The Tribunal asked Mr Hipolito if he had any support networks in Australia such as family, friends or whether he was part of any community groups. Mr Hipolito said he did not have any family in Australia, nor was he part of any community groups.

25. Mr Hipolito told the Tribunal he believed his son Alan to be a normal boy and like every other child. He stated to the Tribunal that he looks normal, he’s aware of everything, he’s strong and physically healthy and does not take any medication. Mr Hipolito outlined that Alan can’t speak but is very caring in nature and can complete tasks in the household such as cooking rice, washing dishes along with preparing and clearing the dining table. Mr Hipolito provided photos at hearing of Alan undertaking the household tasks mentioned.

26. Mr Hipolito outlined that he did not believe that the MOC and the RMOC opinions were an accurate reflection of Alan and that every time he saw him, which was once per year when he returns to the Philippines, and based on what his wife told him, Alan was a healthy, happy, normal child that understands everything, although he does not speak.  Mr Hipolito re-iterated this numerous times to the Tribunal.

27. Mr Hipolitio did however, tell the Tribunal that in the Philippines there is individual support from the government, and Alan attends a special education school who he said was run by the Japanese and that Alan was doing very well at the school. He outlined that in terms of speech therapy they tried to seek out assistance for Alan, however, they have not been able to secure speech therapy sessions.

28. Mr Hipolito told the Tribunal, that in his opinion Alan would not be a burden to Australia and it would not cost $3,072,000. He stated that he would take care of all his needs and was in a financial position to do so given his employment. Mr Hioplito outlined to the Tribunal that he had obtained quotes from Medibank for private health insurance to cover the family which would include part cover for some of the therapies Alan would require. He outlined the quote was for $157.10 per month. He also outlined that he had contacted Stirling Speech Pathology and Allied Services, near his home, as Alan would require speech therapy and that the initial consultation for 1.5 hours would cost $250 and that for treatments thereafter would be charged at $75 for a half hour session and $95 for three quarters of an hour. He also stated that he would receive a 30% rebate back from Medibank private.  Mr Hipolitio also outlined to the Tribunal that he had visited the Durham School in Bayswater and he was quoted that special education schooling for Alan would cost $5000 per year. Mr Hipolito told the Tribunal that he would be able to cover these from his earnings and would not need to rely on government money for education and therapies.

29. Mr Hipolito told the Tribunal that if the visa was granted, that once his wife was here, she would obtain a trade qualification and would also work to help the family financially and would contribute towards covering any costs for Alan. He also outlined that his two other sons were very smart, and that they were doing really well at school and when they came to Australia that eventually they too would get good jobs and contribute and be good for Australia. He explained that his older son was particularly good at cooking and that his other son Joseph was very capable and would do well.

30. The Tribunal discussed with Mr Hipolito some of the medical reports on Alan, including how one of them said that Alan had the mental cognitive ability of a 3-year old. Mr Hipolito said that he thought his child appeared normal, and that he liked to play with cars and was very loving and caring.

31. The Tribunal asked Mr Hipolito if he or his wife had been told by medical professionals what care Alan would need as he grows older and into adulthood, such as whether Alan would be able to live independently. Mr Hipolito said he thought that when Alan was older he would be able gain employment and as far as he can see live independently. Mr Hipolito said that he believed Alan would be able to get employment doing a simple job. He gave an example of how he dismantled a scooter and how Alan assisted him by handing him screws. He said he was good with his hands and putting things together and he could also clean. Although the Tribunal asked Mr Hipolito several times if he believed Alan would be able to live alone as an adult, Mr Hipolito simply said that the family would ensure he would be cared for. The Tribunal asked who would look after Alan in later years, such as when he and his wife were no longer capable. Mr Hipolito said that his other sons would take over the responsibility for caring for Alan as they were aware of the situation. He said he understood the health requirement and that he was effectively in check mate, but that he could support Alan and that when he could not support Alan anymore, his sons would support Alan.

1. The Tribunal asked Mr Hipolito what his plan for care initially would be if his family were to come to Australia. Mr Hipolito said that initially his wife would undertake training to get a qualification probably in CNC as she has experience in that. He then went on to say that what he can bring are four health individuals to contribute to Australia.  He  then said that he would get his mother or mother-in-law to come to Australia to look after Alan as he was aware other families did this and the grandparents could come in on a visitor visa. The Tribunal again asked Mr Hipolito if there was anybody else in Australia or networks that could help him, he again said no.

2. The Tribunal asked what assets the family had. Mr Hipolito said that whilst he was in South Korea living and working, they bought some land. However, he had no intention to sell it as it is for the children. He said a church had offered to buy it from him in 2016; however, he declined as it’s a good asset to have. He said he also had a small house in the Philippines.

3. The Tribunal asked Mr Hipolito if his employer was still supportive, he said his employer is supportive and wants to keep him for as long as possible and they would seek another visa to keep him here. The Tribunal asked whether he meant another temporary work visa, which Mr Hipolito stated yes, they would apply for another visa for him.

4. Mr Hipolito told the Tribunal that Alan would have a better life in Australia and that he would like all his family to come to Australia so they can be together.

5. The hearing concluded.

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

6. 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).

7. 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’) at 47. 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: Bui at 47. Departmental policy guidance on the exercise of this discretion is contained in the Procedures Advice Manual (‘PAM3’). Broadly speaking, these relate to: family links in Australia and the impact on family members; occupational skills of the applicant or family members; assets or factors that may mitigate the costs or prejudice to access to care or services involved; available support from family or community groups; potential contribution to Australia by the applicant or family members; the immigration history of the applicant; other compelling and compassionate circumstances including location of the applicant and family members; and any other relevant factors.

8. No compelling or compassionate circumstances have been identified by the Tribunal and by Mr Hipolito on why PIC4007(1)(c) should be waived.

9. However, the Tribunal has considered other factors, in conjunction with the evidence provided, and makes the following findings.

10. The evidence before the Tribunal is that Mr Hipolito and his family unit do not have any family links in Australia, or any support from friends or community groups to provide assistance with the care of Alan if the family were to come to Australia. Mr Hipolito’s own evidence was he would need to enlist the help of family members in the Philippines to come to Australia on visitor visas to care for Alan, whilst he and his wife worked.

11. Mr Hipolito’s immigration history is sound, there have been no reported issues and he by all accounts has abided by the visa conditions of the two 457 visas he has so far held. As outlined previously, Mr Hipolito is currently living and working in Australia alone, whilst the rest of his family unit remain in the Philippines. This arrangement has been ongoing since 2012 when Mr Hipolito first came to Australia on a 457 visa, with him only returning to the Philippines once per year for a four week period. The Tribunal understands that such an arrangement is quite common in the Philippines because of the greater earning potential individuals have abroad. As such, one family member will live and work abroad whilst the rest of the family unit remains in the Philippines and is supported financially by the family member working overseas.

12. Mr Hipolito claimed he had the support of his employer, however, no evidence was provided to the Tribunal on what support that was, other than his verbal evidence that they would be willing to assist with future visa applications. Further, no evidence was provided regarding the impact to the business if Mr Hipolito were not able to obtain permanent residency.

13. The Tribunal acknowledges that Mr Hipolito is currently in gainful skilled employment in Australia and has been since 2012. If the visa were to be granted, the Tribunal would see no reason for that to discontinue. However, Mr Hipolito’s salary is not high. Nor is there any evidence before the Tribunal that his future earning potential is likely to significantly increase. Taking into consideration Mrs Hipolito’s earning potential, although verbal evidence was provided to the Tribunal that she has in the past had some semi-skilled work; before entering the Australian workforce she would be required to undergo training and obtain qualifications. It was claimed that she would obtain a trade certificate. The Tribunal is mindful that trade certificates can take one to two years to complete, which the family would need to find the finances to cover the cost of. Further, upon completion of a trade certificate the Tribunal is of the view that Mrs Hipolito’s earning potential is likely to be similar to that of Mr Hipolito, however, it would take a number of years to achieve his salary level given her initial lack of experience.

14. No evidence of assets held by the family was provided to the Tribunal, other than the verbal evidence provided by Mr Hipolito stating that he owned a plot of land and a small house in the Philippines, which he stated he did not intend to sell.

15. Mr Hipolito stated that he would be able to cover the costs of Alan’s care, and when he was no longer able, his other sons would take over that responsibility. Given Mr Hipolito’s other sons are still minors, the Tribunal does not consider it appropriate to speculate on the possible future ability for them to provide financial support for their brother Alan’s care.

16. Mr Hipolito stated to the Tribunal that Alan would have a better life in Australia and he wanted his family to come to Australia so they could all be together. The evidence before the Tribunal is that Alan is receiving adequate care in the Philippines, and that the separation of the family is one of economic choice, with the arrangement having been in place since 2012. Further, Mr Hipolito provided evidence that his employer would continue to support future applications for work visas, so there is the likelihood the arrangement he is currently enjoying can continue.

17. The Tribunal has considered all the circumstances of the Hipolito family cumulatively when considering whether granting the visa would be unlikely to result in undue cost to the Australian community.

18. As it stands, the current and future financial earning capacity of Mr and Mrs Hipolito is not significant and although it may be sufficient to pay for private health insurance, private school fees and some specialist and therapeutic appointments, it does not reflect a level that would be able to offset, in any considerable way, the likely cost to the Australian community resulting from Alan’s medical condition, especially throughout his adulthood.

19. For these reasons outlined, the Tribunal is not 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) cannot be waived.

20. As the applicant has not satisfied the requirements of PIC 4007, the decision under review must be affirmed.

    DECISION

21. The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) visas.

    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.