Jamshaad (Migration) - [2020] AATA 96

Jamshaad (Migration) [2020] AATA 96 (22 January 2020)
DECISION RECORD
DIVISION:     Migration & Refugee Division
APPLICANT:  Master Kayban Moosa Jamshaad
CASE NUMBER:  1836612
DIBP REFERENCE(S):  BCC2018/2924850
COUNTRY OF REFERENCE:                   Maldives
MEMBER:Kate Millar
DATE:22 January 2020
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal remits the application for a Temporary Skills Shortage (Class GK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 482 (Temporary Skills Shortage) visa:
·PIC 4007(2)(b) for the purposes of cl.482.317 of Schedule 2 to the Regulations.

Statement made on 22 January 2020 at 4:44pm

CATCHWORDS
MIGRATION – Temporary Skills Shortage (Class GK) visa – Subclass 482 (Temporary Skills Shortage) – jurisdiction – legislative amendment – relevant provision repealed and replaced – amendment commenced the day application for review of delegate’s decision lodged – amendment applies to decisions made after commencement – previous version of provision applies – not a requirement to be sponsored by approved sponsor at time of application for review – health requirements – young child with cerebral palsy and haemophilia – public interest criterion – disease or condition likely to require health care or community services – significant cost to Australian community – social security benefits and certain subsidies for medication not included in calculation of cost – opinion from Medical Officer of Commonwealth – form and severity of condition – treatment and care – criterion may be waived if granting of visa unlikely to result in undue cost to Australian community – compassionate or compelling circumstances – temporary visa holder not eligible for national or state disability services – family meeting most costs – actual cost to Australian community minimal – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65, 140GB, 337, 338(2)(d)(i),
Migration Regulations 1994 (Cth), r 4.02(1AA), Schedule 2, cls 482.315(a), 482.317, Schedule 4, criterion 4007(1)(c), (2)(b)

Migration and Other Legislation Amending (Enhanced Integrity) Act 2018, Schedule 1, cl 5
CASES
Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182
Bui v MIMA (1999) 85 FCR 134
Kim v Minister for Immigration [2007] FMCA 166
Ramlu v MIMIA [2005] FMCA 1735
Robinson v MIMIA (2005) 148 FCR 182
Sharma v Minister for Immigration [2016] FCCA 1073
1412960 (Migration) [2016] AATA 4193

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

Kayban Jamshaad is three years old. He suffers from cerebral palsy and haemophilia, and the combination of these conditions result in a high level of specialist care needs. Kayban was born in Australia, and is a citizen of the Maldives.
Kayban’s mother, Ms Aishath Shizleen, is a social worker who works for Andersons Neurological and Developmental Services Pty Ltd (Andersons). On 4 August 2018 Ms Shizleen applied with her husband and three children for Temporary Skill Shortage (Class GK) visas on the basis of her employment with Andersons.
On 10 December 2018 a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs granted the visa to Ms Shizleen, her husband and their two older children, but refused…

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.

Keep reading for free

Create a free CaseChat account to read Jamshaad (Migration) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] AATA 96
Decision Date: 22 January 2020

CaseChat Overview and Summary

This matter concerned an application for review of a delegate's decision to refuse a Temporary Skills Shortage (Class GK) visa (Subclass 482) made by the applicant, Jamshaad, on behalf of Kayban. The dispute centred on whether the Tribunal had jurisdiction to hear the review and whether Kayban met the relevant health requirements for the visa.

The legal issues before the Tribunal were twofold. Firstly, it had to determine whether it possessed jurisdiction to hear the application for review, particularly in light of a legislative amendment that occurred after the delegate's decision but before the application for review was lodged. Secondly, the Tribunal was required to assess whether Kayban met Public Interest Criterion 4007, specifically concerning the likelihood of their medical condition requiring health care or community services, and whether this would result in a significant cost to the Australian community or prejudice access for citizens and permanent residents.

The Tribunal reasoned that the legislative amendment, which came into effect on the day the application for review was lodged, did not apply retrospectively to the delegate's decision. Therefore, the previous version of the provision governed the matter, and it was not a requirement for Kayban to be sponsored by an approved sponsor at the time of the application for review. Regarding the health requirements, the Tribunal considered the opinion of a Medical Officer of the Commonwealth concerning Kayban's condition, which was described as cerebral palsy and haemophilia. While this condition was likely to require health care and community services, the Tribunal found that certain costs, such as social security benefits and specific medication subsidies, were excluded from the calculation of cost to the Australian community under the relevant provisions. Furthermore, the Tribunal noted that Kayban, as a temporary visa holder, was not eligible for national or state disability services, and the family bore most of the costs. Consequently, the actual cost to the Australian community was deemed minimal, and the criterion could be waived if granting the visa was unlikely to result in undue cost.

The Tribunal concluded that it had jurisdiction to hear the matter and that the public interest criterion concerning health requirements could be waived. Accordingly, the decision under review was remitted to the delegate for reconsideration.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

As a result, the Tribunal finds that it is not a requirement for the grant of the visa that Kayban is sponsored by an approved sponsor at the time of the application for review. As a result, s.338(2)(d) does not apply. As Kayban meets the other requirements in s.338(2), the Tribunal has jurisdiction in this matter. CONSIDERATION OF CLAIMS AND EVIDENCE Kayban applied for a Subclass 482 visa on 4 August 2018. The criteria for a subclass 482 visa are set out in Part 482 of Schedule 2 to the Regulations. As Ms Shizleen meets the primary criteria, Kayban is only required to meet the secondary criteria set out in Part 482 to be granted the visa. The criteria at cl.482.317 include public interest criterion 4007 (PIC 4007). In general terms, PIC 4007 requires an applicant, in certain circumstances, to undergo a medical assessment, and to be free of certain diseases or conditions. A Medical Officer of the Commonwealth (MOC) conducts the medical assessment, and provides an opinion on whether the person meets the health requirements. If this assessment is validly made, the opinion must be taken as correct for the purposes of deciding whether Kayban meets PIC 4007 (r.2.25A). PIC 4007 requires the person to be free of particular conditions. Of the provisions in PIC 4007, in issue is whether Kayban meets PIC 4007(1)(c). Clause 4007(1)(c) requires an applicant to 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. Where the disease or condition is likely to require health care or community services, or which would meet the medical criteria for provision of a community service, the provision of the health care or community services (regardless of whether it will actually be used in connection with the applicant) a person will not meet PIC 4007 (1)(c) if the condition 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. This applies regardless of whether the health care or community services will actually be used in connection with the applicant. For specified temporary visas, certain health care and community services are excluded from this consideration (PIC 4007(1B)).[9] In this case the temporary visa Kayban is seeking is not specified in IMMI 16/067. As a result the health care and community services listed in the instrument IMMI11/073 are excluded from consideration. The costs excluded are social security payments, costs associated with issuing a Health Care Card or Pensioner Concession Card, and pharmaceuticals listed under the Pharmaceutical Benefits Scheme that, if ceased, would not be seriously detrimental to the applicant’s life or wellbeing. [9] This applies to temporary visas other than those specified by the Minister in Legislative Instrument IMMI 16/067. The specific health care and community services excluded are those specified by the Minister in IMMI11/073. The definition of “community services” in r.1.03 includes the provision of an Australian social security benefit, pension or allowance.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.