Jani (Migration)

[2022] AATA 1888

Jani (Migration) [2022] AATA 1888 (21 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Hetal Chirag Jani
Mr Chiragkumar Narendrabhai Jani

CASE NUMBER:  2005855

HOME AFFAIRS REFERENCE(S):          BCC2019/4010601

MEMBER:Antonio Dronjic

DATE:21 April 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for Skilled Regional Sponsored (Provisional) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 489 - Skilled - Regional (Provisional) visa:

·PIC 4005(1) for the purposes of cl 489.226(1) of Schedule 2 to the Regulations.

Statement made on 21 April 2022 at 2:32pm

CATCHWORDS
MIGRATION – Skilled Regional Sponsored (Provisional) (Class SP) visa – Subclass 489 (Skilled – Regional (Provisional)) – health criteria – severe chronic renal disease – MOC opinion – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.25A; Schedule 2, cl 489.226; Schedule 4, PIC 4005

CASES
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 Home Affairs on 18 March 2020 to refuse to grant the applicants Skilled Regional Sponsored (Provisional) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 13 August 2019. The delegate refused to grant the visa on the basis that the first named applicant (now referred to as the applicant) did not satisfy cl 489.226(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4005 of Schedule 4 to the Regulations was not met.

3. The visa applicants were requested to undertake medical examinations and the results were referred to the Medical Officer of the Commonwealth (MOC) assessment. On 26 August 2019 the MOC provided his/her opinion that the primary applicant does not meet the health requirement prescribed in PIC 4005(1)(c)(ii)(A) as he was diagnosed with severe chronic renal disease. (the First MOC opinion)

4. On 7 January 2020, the second determination was made by the MOC with the same results.

5. The applicants sought review of the delegate’s decision on 23 March 2020.  A copy of the delegate’s decision accompanied the review applications.

6. On 9 June 2020, the third determination was made by the MOC with the same results.

7. On 31 March 2022, the Tribunal sent copies of previous MOC opinions, to the review applicants, pursuant to s 359A of the Act, inviting them to comment on or respond to that information. The invitation noted that, pursuant to reg 2.25A, the Tribunal must take an opinion of the Medical Officer of the Commonwealth to be correct. With the same letter, the applicants were offered an opportunity to obtain a further MOC opinion.

8. On 13 April 2022, the applicants requested further MOC opinion.

9. On 20 April 2022, the following email was received by the Tribunal from the Bupa Medical Via Services:

   We can confirm the AAT review request for JANI Hetal Chirag has now been assessed by a Senior Medical Officer of the Commonwealth and an outcome is now available in HAP.

   “Noted previous DNM decisions. The medical condition is a meet for current permanent visa application as assessed against the latest Notes for Guidance for Nephrological Conditions May 2021.”

   …

10. The form 884E (MOC opinion) dated 19 April 2022 was attached to the above email stating that the applicant, Ms Hetal Chirag Jani has been assessed against PIC 4005 and meets the health requirement for a permanent stay in Australia.

11. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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.

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

13. 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.

14. 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).

15. In determining whether a person meets PIC 4005(1)(a), (b) or (c) reg 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: reg 2.25A(3).

    Is a MOC opinion required?

16. 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.

17. The MOC opinion of 19 April 2022 states that that the applicant, Ms Hetal Chirag Jani has been assessed against PIC 4005 and meets the health requirement for a permanent stay in Australia.

18. The Tribunal considers that the period of assessment meets PIC 4005(2). It was indicated that 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” and set out the officer’s position number.

19. The Tribunal considers that the MOC opinion, dated 19 April 2022, addresses whether the applicant is free from a disease or condition in relation to which a person who has it would be likely to require health care or community services and that the opinion has been properly made.

20. Accordingly, based on the opinion of the MOC the Tribunal finds that the primary applicant Ms Hetal Chirag Jani satisfy PIC 4005(1).

21. Given the findings above, the appropriate course is for the Tribunal to remit the matter to the Minister for reconsideration of the remaining criteria for the visa.

    DECISION

22. The Tribunal remits the application for Skilled Regional Sponsored (Provisional) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 489 - Skilled - Regional (Provisional) visa:

    ·PIC 4005(1) for the purposes of cl 489.226(1) of Schedule 2 to the Regulations.

    Antonio Dronjic
    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.