House (Migration)

[2019] AATA 3016

House (Migration) [2019] AATA 3016 (3 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Rebeccca Jayne House
Mr Aaron Ashley Wake
Mr Taylor John Wake
Miss Lani Adele Wake
Miss Ashlin Lacee Wake

CASE NUMBER:  1618016

DIBP REFERENCE(S):  BCC2015/3982938

MEMBER:Michelle East

DATE:3 May 2019

PLACE OF DECISION:  Perth

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

Statement made on 03 May 2019 at 2:11pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) visa – Subclass 187 – health criteria – secondary applicant does not meet health criteria – tribunal has no discretion – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994, Schedule 2, cl 187.235, Schedule 4, Public Interest Criterion (‘PIC’) 4005, r 2.25A

CASES
JP1 & Ors v MIAC [2008] FMCA 970
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 for review of decisions made by a delegate of the Minister for Immigration on 13 October 2016 to refuse to grant the applicants Regional Employer Nomination (Permanent) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 21 December 2015. The delegate refused to grant the visa on the basis that the first named applicant (now referred to as the applicant) did not satisfy clause 187.235 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4005 of Schedule 4 to the Regulations was not met.

3. The adult applicants appeared before the Tribunal on 11 April 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Dr Rajagopalan, an inflammatory bowel disease fellow from Royal Perth Hospital.

4. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this review is whether the visa applicant meets Public Interest Criterion (PIC) 4005 as required by the criteria for the grant of the visa. Public Interest Criterion 4005, 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. The applicant in this case has her partner, the second named applicant Mr Wake who must satisfy cl.187.235(2) in respect of the health criteria for PIC 4005.

7. A Medical Officer of the Commonwealth (MOC) has provided an updated opinion dated 1 March 2019 stating Mr Wake did not satisfy PIC 4005(1)(c)(ii)(A) because he has ‘Asymptomatic ulcerative colitis’ and will require long term medical care including but not limited to medical review and pharmaceutical therapy.

   Is the applicant free from the relevant diseases or conditions (PIC 4005(1)(a), (b), (c))?

8. Public interest criterion 4005(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.

9. Public interest criterion 4005(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 service are excluded from this consideration: PIC 4005(3).

10. As the applicant in this case has applied for a permanent visa, the exclusion provision in PIC 4005(3) does not apply.

11. In determining whether a person meets PIC 4005(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?

12. 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.

13. On 27 June 2016 a MOC provided a Form 884: Opinion of a Medical Officer of the Commonwealth.  In that report, the MOC stated Mr Wake has ‘Stable Crohn disease’ and would likely required periodic medical review and on-going immunomodulatory therapy indefinitely.

14. In anticipation of a hearing, the Tribunal wrote to the applicants giving them the opportunity to obtain a further MOC opinion in respect of Mr Wake.

15. A further MOC opinion was provided on 1 March 2019 and the contents of the report were put to the applicants pursuant to section 359AA of the Migration Act as being the reason or part of the reason for affirming the decision under review.

16. The opinion of 1 March 2019 states that Mr Wake does not satisfy PIC 4005(1)(c)(ii)(A) in Schedule 4 of the Regulations.  The condition identified is ‘asymptomatic ulcerative colitis’.  The MOC states: ‘the applicant has ulcerative colitis which initially presented as toxic megacolon.  The condition responded very well to biological pharmaceutical therapy and is now asymptomatic.  Ongoing treatment is required.  Provision of services to a hypothetical person in Australia with the same condition as the applicant and at the same severity: a hypothetical person in Australia with the same condition as the applicant, at the same severity would be likely to require long term medical review and pharmaceutical therapy as most people with this condition who respond favourably to treatment will require long term therapy.  This condition is likely to be Permanent’.

17. The MOC indicated that, in preparing the opinion, regard was had to information available to 1 March 2019 and includes but is not limited to: ‘The panel physician examination of 21 June 2016 and reports from Dr Armstrong (24 January 2019), Dr Chin (6 June 2017, 6 November 2017, 12 May 2015, 18 February 2014, 31 July 2018 and 21 January 2019), and Dr McElhom (two reports dated 1 February 2019)’.

18. Finally, the opinion notes the MOC’s position number and states the officer is a ‘Medical Officer of the Commonwealth for the purposes of providing an opinion on whether prescribed health criteria under the Migration Regulations 1994 are met’.  The Tribunal is satisfied the MOC applied the correct test.

19. The Tribunal accepts that the opinion of the MOC is valid.  The applicants’ representative made a submission that as there were no costings provided on the MOC opinion that it was not valid.  Court authority states that the MOC is not obliged to state what the significant costs would be in order for the MOC opinion to be valid: JP1 & Ors v MIAC [2008] FMCA 970. Furthermore, it is for the MOC to determine based on their own medical judgement as to whether a cost is significant. The MOC is not obliged to explain why a particular cost is considered to be a significant cost: JP1 & Ors v MIAC.

20. Based on the opinion of the MOC dated 1 March 2019, the Tribunal finds that a member of Ms House’s migrating family unit, her partner Mr Wake, does not satisfy PIC 4005(1)(c)(ii)(A) of Schedule 4 of the Regulations. It follows that she is not able to meet cl.187.235(2) of the Regulations which is a requirement for grant of the visa. Therefore the Tribunal finds Ms House does not meet cl.187.235 of the Regulations.

21. The Tribunal has significant sympathy for Ms House and her family.  She and Mr Wake both gave compelling evidence and the evidence of their specialist doctor was also highly informative.  Ms House is training to be an Olympic judge in her field of gymnastics in Australia.  Unfortunately though the Tribunal is without discretion and must accept the valid opinion of the MOC.

22. Ms House has only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry stream.  No claims have been made in respect of the other visa streams.  As the requirements that must be met by a person seeking the visa in the Direct Entry stream have not been met, the decision under review must be affirmed.

    DECISION

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

    Michelle East
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    Schedule 4

    4005(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)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 (2); 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.

    (2)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.

    (3)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 (2) (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.