Kashyap (Migration)

Kashyap (Migration) [2022] AATA 1007 (8 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Puneet Kashyap
Mrs Renu Chaudhary
Miss Nandini Kashyap
Miss Katyayni Kashyap
REPRESENTATIVE:  Mr George William Lombard
CASE NUMBER:  1909753
HOME AFFAIRS REFERENCE(S):          BCC2016/3190373
COUNTRY OF REFERENCE:                   India
MEMBER:Alan McMurran
DATE:8 March 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for Employer Nomination (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 – Employer Nomination Scheme visa:
·PIC 4007(2)(b) for the purposes of cl 186.224 of Schedule 2 to the Regulations.

Statement made on 08 March 2022 at 11:52am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – health criteria – mild cognitive impairment – Down Syndrome – RMOC opinion – ‘significant cost’ to the Australian community in the areas of health care and community services – special education services – waiver of requirement – any ‘undue cost’ to the Australian community – funding for a Teacher Aide through the NCCD program – compelling and compassionate circumstances – family links in Australia – effect of Tribunal’s decision on the children – financial independence – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.25A; Schedule 2, cl 186.224; Schedule 4, PIC 4007
CASES
Bui v MIMA (1999) 85 FCR 134
Ramlu v MIMIA [2005] FMCA 1735
Robinson v MIMIA (2005) 148 FCR 182
Singh v Minister for Immigration and Border Protection [2016] FCA 156
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application lodged 23 May 2019 for review of decisions made by a delegate of the Minister for Home Affairs on 4 April 2019 to refuse to grant the applicants Employer Nomination (Permanent) visas under s 65 of the Migration Act 1958 (Cth) (the Act).The visa applicants applied for the visas on 26 September 2016.
The delegate refused to grant the visas as the first named primary applicant (hereafter referred to as the applicant) did not satisfy cl 186.224 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the health criteria in public interest criterion 4007 (referred to in these reasons as PIC 4007) of Schedule 4 to the Regulations was not met.
The applicants appeared before the Tribunal on 1 March 2022 to give evidence and present arguments. The Tribunal received oral evidence from the applicant. The second-named applicant, Mrs Chaudhary, also gave evidence.
The hearing was conducted virtually using MS Teams and in accordance with the Tribunal’s COVID-19 Practice Direction for providing a mechanism of review that is fair, just, economical, informal and quick. No concern was raised as to the format for the hearing. No extension of time or adjournment request was sought and the applicant was ready to proceed. No technical issues communicating were discerned during the hearing which took approximately one and a half hours to complete.
The applicants were given a further opportunity to make any additional submissions after the hearing, should they choose to do so and before the Tribunal finalised its decision.
The applicants were represented in relation to the review by their solicitors who attended the hearing and made oral submissions.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Background
The applicant, who is a citizen of India, and the three secondary applicants are all members of the same family unit, and currently reside in Launceston, Tasmania.
The applicant has applied for permanent residency; a Subclass 186 visa. The applicant has been sponsored for the occupation of Corporate Services Manager by his nominator and employer, Nico Pty Ltd ATF the Nicholas Family Trust (‘Nico’). The nominator titles the occupation as ‘Operations Manager’.
The applicant has been in Australia on a full time basis since early 2012. The applicant obtained a Masters’ degree from UNSW in Sydney in 2013, before relocating to Tasmania to commence employment with Nico in 2014, as a full time operations manager of four McDonald’s restaurants in Tasmania’s North and West.
The nomination application by Nico remains current pending the outcome of this review and application. The secondary applicants are all members of the applicant’s family unit.
The third named secondary applicant, referred to herein as ‘Ms K’, is the applicant’s eldest daughter, now aged 12. This applicant has a diagnosed condition of ‘mild cognitive impairment’, otherwise referred to as Down Syndrome. The diagnosis is likely to remain a lifetime condition, and may require ongoing supervision and clinical management, as well as specialised training and supervision during childhood.
The second-named applicant is the applicant’s spouse and came to Australia in mid-2012 and is a qualified teacher. Ms K was born in India. The second child, referred to herein as ‘Ms N’, was born in Australia and is currently aged 6 years. Ms K lived in India with her parents until age 2. Both children have resided in Australia since 2012. They attend schools in Launceston and live with their parents.
The applicants seek to make Australia their permanent home. The applicant has applied for this review principally on the basis that there is no undue cost to the Australian community occasioned by the current decision of the Review Medical Officer of the Commonwealth (RMOC), and that the requirements of PIC 4007(1)(c) might be waived.
The Tribunal must consider all elements for the application of the relevant condition, not only the question of whether the condition might be waived.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the visa applicant meets PIC 4007 as required by the criteria for the grant of the visa. PIC 4007, as it applies to this case, is extracted in the attachment to this decision.
The criteria 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.
As indicated, PIC 4007(2) provides for waiver of the requirement in PIC 4007(1)(c) if, among other things, 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)(b).
The Tribunal has available the Department’s file and the Tribunal’s file containing in excess of 2000 pages of information, some of which has been duplicated. It is not necessary in these reasons to refer to every submitted item, but all items of evidence have been considered. The Tribunal places significant weight on information obtained from the hearing, Departmental policy, and the Act and Regulations themselves.
The applicant provided post-hearing submissions on 7 March 2022, as referred to below.
Is the applicant free from the relevant diseases or conditions (PIC 4007(1)(a), (b), (c))?
PIC 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.
PIC 4007(1)(c) requires:
a.the applicant be free from a disease or condition in relation to which the applicant who has the disease or condition would be likely to require health care or community services; or would be likely to meet the medical criteria for provision of a community service during the period commencing when the application is made; and
b.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:
i.result in a significant cost to the Australian community in the areas of health care and community services; or
ii.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 services are excluded from this consideration: PIC 4007(1B). As the applicant in this case has applied for a permanent visa, the exemption provision in PIC 4007(1B) does not apply.
The requirement may also be waived in certain circumstances specified in PIC 4007(2), dealt with below.
In determining whether a person meets PIC 4007(1)(a), (b) or (c), reg 2.25A requires the Tribunal to seek the opinion of a Medical Officer of the Commonwealth (MOC), and which might be updated, as in this instance, by the RMOC, unless:
a.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
b.the application is for a permanent visa and made from a specified country and
c.there is no information known to Immigration to the effect that the person may not meet those requirements.
Is a MOC opinion required?
Where an opinion of the MOC, as updated by the RMOC, is required, the Tribunal must take that opinion to be correct: reg 2.25A(3).
On the evidence before this Tribunal, a MOC opinion is required. The application is not for a temporary visa and is not made for a permanent visa from a specified country.
A MOC opinion was provided as required.[1] The MOC opinion in this instance has been updated by the RMOC.[2] As noted above, subject to what follows, the Tribunal must take the RMOC opinion as correct.
Has the RMOC opinion in this instance applied the correct test?
[1] First MOC opinion made November 2017.
[2] RMOC opinion dated 4 February 2022.
The Tribunal must be satisfied the RMOC has applied the correct test in forming the opinion: Robinson v MIMIA (2005) 148 FCR 182 and Ramlu v MIMIA [2005] FMCA 1735. To be ‘correct’, 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.
The RMOC must have applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition. The RMOC has identified the applicant, Ms K, as suffering from ‘Mild Down Syndrome’ and states:
The applicant is a 12 year old person with: - Mild Down syndrome.
Form and severity of the applicant's condition: the applicant has mild functional and cognitive impairment due to Down syndrome as evidenced by developmental delay particularly for speech & language. The applicant requires additional support at school in the form of a learning assistant to improve speech & language development, cognition and social skills. For the purpose of a RMOC and in line with PIC 4007(1A)(a), the applicant was assessed as a 6 year old person to reflect their age at the time of the visa application. 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 disability support services including but not limited to: special education 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.
As stated by the RMOC, PIC 4007(1)(c)(i) requires that the period during which health care or community services are provided is calculated from the period commencing when the application is made.[3] That period commenced here on 26 September 2016, when Ms K was 6 years old.
[3] PIC 4007(1A)(a).
The provision of the health care or community services in a particular case must result in an opinion by the RMOC that the provision of related health care services would be likely to result in ‘significant cost’[4] to the Australian community in the areas of health care and community services. The term ‘significant cost’ is not defined in the Regulations.
[4] PIC 4007(1)(c)(ii)(A).
On 1 July 2019, the Department updated its policy for assessing the health criteria. In particular, the new policy raised the threshold level for ‘significant costs’ from AU$40,000 to AU$49,000 for all cases. As of 1 September 2021, the policy threshold for the level of costs regarded as ‘significant’ was increased to AU$51,000.
For permanent and provisional visa applicants only, who have a permanent condition,[5] as in this instance, policy reduced the assessment period from ‘lifelong costs’ to costs for a maximum period of 10 years.[6] When assessing those costs, the RMOC in this instance should estimate those costs for a period up to the maximum of 10 years.
[5] Meaning (Policy) the applicant has a condition that is permanent and the course of the disease is inevitable or reasonably predictable (65% likelihood) beyond the five year period – in these circumstances, the applicant would be assessed for a maximum of 10 years.
[6] Policy – Migration Regulations Sch4 - 4005-4007 - The health PIC - Sch4/4005-4007 - The health requirement - The MOC Assessment - Significant costs (re-issued 01/07/2019).
The RMOC assessed the costs in this instance from the time of application over a 10-year period (Sep 2016 to Sep 2026) and which estimate includes health and community services (classed as ‘special education services’) calculated at AU$176,630. No breakdown for the calculation is provided. The Tribunal understands that the RMOC has considered the provision of services for the hypothetical equivalent to include all services, not limited to ‘special education services’.
The RMOC opinion represents a significant reduction from two prior MOC estimates on 6 December 2016 of AU$2,623,526, and the MOC opinion on 29 June 2018 of potential costs of AU$3,814,540.
The RMOC determined that there was no prejudice to the access to health care or community services of an Australian citizen or permanent resident.[7]
[7] PIC 4007(2)(b)(ii).
There is no breakdown of the potential costs reported by the RMOC. The Tribunal finds, however, on this evidence that the RMOC opinion has applied the correct test and must be accepted.
Accordingly, based on the opinion of the RMOC, the applicant does not satisfy PIC 4007(1)(c).
Should the requirements of PIC 4007(1)(c) be waived?
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: PIC 4007(2).
The evaluative judgement 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.
Department policy provides guidance on factors that may be relevant to this, including: the need for, and availability of, a live organ donor; an ability to access private health treatment; close family, social, emotional and community ties to Australia; the impact on any Australian citizen minor children; occupational skills of the applicant or family members; and the potential contribution to Australia by the applicant or family members.
Save for the consideration of an organ donor, which is not relevant in this case, the other discretionary considerations are relevant.
Is the granting of the visa unlikely to result in undue cost or undue prejudice within the terms of PIC 4007(2)(b)?
The RMOC has opined (as did the MOC) that there is no ‘undue prejudice’ to the access to health care or community services of an Australian citizen or permanent resident. The Tribunal must accept that opinion and does not consider that issue further.
The applicant has made a number of submissions concerning ‘undue cost’, bearing in mind the policy threshold is now AU$51,000 and the RMOC estimate well in excess of that figure at AU$176,630.
At the hearing, the Tribunal took the opportunity to raise a number of matters with the applicant. The applicant explained his family and visa history. He said he had some family in Australia, as his wife’s sister lives in Brisbane and is a permanent resident. He said he has cousins living in Sydney who are also permanent residents. The applicant came to Australia in 2006 and again in 2008 on two short business trips, while employed full-time as a senior operations manager for McDonald’s India (North and East). The applicant returned to Australia on a student visa on 6 January 2012 and has remained on subsequent substantive temporary working visas with his family since that time.
The Tribunal discussed the applicant’s educational background. The applicant obtained a Bachelor of Commerce from the University of Delhi, together with a Diploma in Hotel Management from the Delhi Institute of Hotel Management, both awarded in 1999. In 2012, the applicant enrolled in the Australian Graduate School of Management, UNSW, for his MBA awarded in 2013. The applicant was recognised during his studies in Sydney as having excelled in his particular course at UNSW. The Tribunal accepts the applicant’s qualifications, evidenced by the related awards and certificates produced.
In the employment sphere, the applicant has worked continually in India as senior operations manager for McDonald’s from January 1999 until coming to Australia in early 2012. In 2010, the applicant was selected by McDonald’s for a mid-management development program conducted in Shanghai, China. The applicant also represented the UNSW Graduate School at business conferences in the USA in 2012 and India in 2013, while still an MBA student.
The Tribunal put to the applicant that his extensive experience and qualifications in which he had excelled would mean he had reasonable expectations of continued employment with McDonald’s, should he return to India with his family. The applicant responded that after 10 years living in Australia, it would not be straightforward to find similar or equivalent employment with McDonald’s in India. He said the franchised operations are privately held in India (‘silo operations’) and employment opportunities would depend upon availability for positions in these privately owned organisations. He said there was no assurance of transfer from an Australian McDonald’s organisation to an equivalent organisation or position in India. He said it would be difficult to obtain employment in his current role should he relocate back to his home country.
The applicant’s current employer, Nico, supports the applicant’s continued employment in Australia. Its owner and director, Mr Steven Nicholas, was available to give evidence, but was not called upon by the Tribunal, which already had the benefit of his written statement. In 2017, the director wrote that the applicant was ‘a very valued member of our organisation, since joining our team we have experienced record sales and guest count growth, this has enabled us to expand our restaurant teams and offer more opportunities for personal development to our people.’ The director repeated this submission in February 2022, noting the applicant’s salary had increased to AU$160,000 per annum as compared to an industry equivalent salary of AU$83,000.
The Tribunal accepts that the applicant is a very valued employee and that the sponsor desires to keep him employed in the role he has been performing since 2014. The evidence is that the applicant controls four McDonald’s restaurants across the North and West of Tasmania, each employing up to 150 local employees.

The applicant was asked about his personal finances. He said he is currently on a package of AU$155,000 per annum, plus superannuation. He is also eligible for an annual performance bonus up to AU$15,000 and said that he has received a bonus for each of the last two years of approximately AU$10,000. He also receives a car allowance. His total package on that basis is between AU$155,000 and AU$165,000–AU$170,000 per annum, depending upon the bonus and excluding superannuation.
He said he has no assets in Australia other than personal bank accounts he shares with his wife, his superannuation which is accumulating, and some jewellery. The applicant has produced evidence of the current bank accounts and balances. He said it is too difficult and expensive to purchase property in Australia while on a temporary visa, and where mortgage rates are significantly higher for non-citizens. The family currently rents in Launceston. He said he has assets in India which include an expected inheritance, a house, some additional jewellery, and all of which has been valued for these proceedings. Accepting those values, the applicant’s assets in India total approximately AU$270,000, but which may not be readily transferrable to assist the family in Australia. The applicant said their joint assets in Australia total approximately AU$110,000, of which AU$68,000 is in bank accounts.
He said he meets all the family’s monthly expenses from his income, which includes their daily living expenses, private school fees for each of the children, who attend separate schools, and for the children’s extra-curricular activities. The activities cover speech therapy for Ms K, swimming and music lessons for both, and drama and gym lessons. The exceptional costs for Ms K’s speech therapy total AU$1,400 per annum for individual consults, which the family pays. The family has private medical insurance through Medibank, which does not include reimbursement for speech therapy.
The applicant was asked about costs incurred for Ms K since the time of application in 2016. The applicant maintains that the family has met all associated expenses for their daughter without any encumbrance upon the public health system and without financial compensation, other than a school subsidy under a Commonwealth government program referred to below.
Ms K attends Scotch Oakburn College, which caters for students of all abilities, and provides teacher aides, subsidised by the Commonwealth government. The annual subsidy for a teacher aide for the school is AU$13,000 per annum. This subsidy applies to all teacher aides who attend the school and who assist other children, as well as Ms K.
The school has provided a letter for the Tribunal dated 21 January 2022. The letter states:
the dollar amount of the support funding that the college receives from the Commonwealth government for [Ms K] is approximately $13,000 per annum. This is received under the NCCD program. Funded support for all students eligible for adjustments to learning programs through NCCD falls into 3 levels: Extensive, Substantial or Supplementary. [Ms K] is eligible for support at the Substantial level.
We use this funding primarily for employment of a Learning Assistant (Teacher Aide) to support [Ms K] in her learning.
It is anticipated that the amount of this support will continue to be the same annually in middle and senior school years. [Ms K] moves into the middle school (year 6) this year.
Based on this information, the approximate cost of continued Commonwealth government support under this program would be in the order of AU$78,000 for one supported Teacher Aide since September 2016. Ms K has been enrolled at the school for the whole of that period. The Tribunal notes, however, that it is not the entirety of that amount which has been dedicated for support for the applicant’s child alone, as the Teacher Aide engaged by the school is available for employment for all students as the school deems fit.
The NCCD[8] program enables the Commonwealth government to calculate any disability loading for recurrent funding for eligible schools. Categories for the loading calculation include physical, cognitive, sensory and social/emotional.[9] There is no evidence before the Tribunal as to the amount Scotch Oakburn College has calculated for its total requirements for the funding. It is provided however for many students, not exclusively for the applicant’s child.
[8] NCCD - National Consistent Collection of Data.
[9] >
A letter from the school produced in evidence and dated 3 November 2021 states that:
[Ms K] has an Individual Learning Plan (as do 119 students across our junior school campus) and is supported in this with one of the class Learning Assistants who also works with a number of other students on ILP’s. Shared support time for the students is 20 hours per week. Approximately half of this time could be seen as primarily allocated to [Ms K]. …[Ms K is making] significant progress in all aspects of her personal and academic development.
There is no indication as to what actual proportion of time and cost will be required to continue providing support for Ms K’s cognitive development over the remaining three and a half years until September 2026. It could be estimated however that at the current rate of approximately AU$6,500 per annum that cost would eventually be around AU$22,750 from the NCCD program. If totalled over 10 years, the cost under that program for the applicant’s child would be in the order of AU$65,000. The Tribunal notes, however, that this is somewhat speculative, as it would depend upon a reliable estimate of costs already incurred under the program as apportioned to Ms K, which is not available, and what might be anticipated by the school as her progress and cognitive ability continues to improve and how much the cost estimate may vary.
The applicant maintains that for the remainder of the calculation period for the associated costs of Ms K until September 2026, there will be no additional cost burden other than continuing provision of the Teacher Aide funding through the Commonwealth government NCCD program. The requirement for that continued funding and enabling provision for appropriation of necessary school resourcing is entirely within the control of the school concerned. That in turn is a matter for assessment by the school of the student’s progress and individual requirements. According to the evidence produced for the applicant and in support from Scotch Oakburn College, Ms K’s academic progress is within the middle range of her cohort at the school and she is keeping up with her peers. There is no evidence that the applicant will not continue or be able to maintain the family’s current level of support for all the child’s other funding requirements until September 2026.
A further letter of assessment and expert report dated 14 January 2022 from Ms K’s treating private speech pathologist confirms positive developments demonstrating a ‘normal’ range assessment for her age. Other than speech development and training towards remediating possible cognitive deficits, there are no other diagnosed conditions or anticipated treatments in evidence likely to require significant expenditure, or which could not be managed privately by the family.
The applicant outlined the current annual expenditure for Ms K, over and above private school fees, as follows: swimming lessons AU$600; drama classes AU$400; gym classes AU$300; and music lessons AU$1,400. These expenses are aligned with the ordinary expenses parents might expect to incur for their school-aged children for such activities. The only additional expense in this instance, as pointed to above, is the speech therapy for Ms K.
Mrs Chaudhary gave evidence of her own full-time employment as a Teacher’s Aide and provided a copy of her employment contract. Mrs Chaudhary is a qualified teacher in India and stated she intends to pursue advancing her qualifications for teaching in Australia. Her additional income supplements the family’s assets and she intends to remain employed full-time for the remainder of the designated period since lodgement of the application. Her employment contract continues until her Subclass 482 visa expires on 29 November 2023, and she receives (gross) AU$912.60 per week, plus superannuation. She said the children are now of an age where she can return to the workforce full-time while they are at school.
Following the hearing, the applicant submitted a cost-benefit analysis for an estimated 10 year period. The analysis summarised overall ‘benefits’ for the applicants remaining in Australia at AU$950,000, which included reasonably anticipated income tax payable of $460,000, and assets accumulated at AU$490,000 (including superannuation). The applicants submitted a letter from their accountant who has estimated the tax payable, assuming continued employment over a 10-year period.
Against this, costs were estimated at AU$85,729 comprising AU$78,000 for school funding and AU$7,729 for speech therapy. The overall ‘benefit’ which outweighs cost is therefore submitted to be net AU$864,271. As already noted by the Tribunal, the school’s estimate of school funding for Ms K is approximately half of the school’s provision, as it does not all go to her, which means the actual cost for school funding and which the applicants cannot control but benefit from, is in the order of AU$39,000. A letter from the speech pathologist was submitted estimating the total amount reported above for speech therapy, including regular progress reviews, until Ms K reaches 25 years.
The Tribunal accepts these estimates, noting that they are contingent on unknown events, such as continued employment and Ms K’s development and progress.
The applicant also submitted details of contributions made by the family to the community in the form of charitable donations raised for ‘StepUp’ and for the Leukemia Foundation, where Ms K personally raised close to AU$2,500.
On returning to India, the applicant submitted the following. That it would be difficult for the parents to obtain employment, and that the family has become socially adjusted and committed to an Australian lifestyle after 10 years, initially in Sydney, and then in Launceston, and it would be ‘difficult to navigate’ an Indian lifestyle. Both children attend schools in Australia and are well-adjusted, and the second child, Ms N, has never lived in India. The children, although they will not be separated by returning as a family unit, will be negatively impacted by a differing school system, the language and having to adjust socially.
The applicant said finding a job with another McDonald’s for whom the applicant has always worked will be difficult. He said the franchises in India operate ‘in silos’ unlike Australia and he does not have contacts there anymore. He contributes to the local community in Launceston through charitable foundations such as working with Ronald McDonald House and with the Down Syndrome Association, where he is well-known and respected and who have also provided a letter of support, as has the local member for Bass.
The Tribunal accepts that the applicant makes a considerable contribution to the local Launceston community, is well-known and respected and has independent financial means to support his family and Ms K in particular. The Tribunal has had regard to the joint statement from the applicants made 20 February 2022, and to which the Tribunal attaches some considerable weight. The submission invites the question as to what more could the applicants do in order to reduce the likelihood of any ‘undue cost’ to the Australian community given their personal circumstances, their proven efforts to date in managing the support of Ms K to limit any such costs, and the evidence provided in support of likely reduced costs over the remaining period ending September 2026.
Their migration agent submits in support of the applicants’ evidence that on any reasonable objective assessment, the costs already incurred and the likely further costs remaining for the period are not ‘undue’. The agent relies on all submissions to date, touched upon in these reasons and discussed with the applicants in detail.
The solicitor points to what is said to be ‘compelling’ reasons including the applicants’ strong attachments to their community, their charitable contributions voluntarily and through their respective employments. The solicitor also refers to the applicant’s critical role in his employer’s eyes and to the highly-successful business he has helped to grow. He also refers to the substantial tax payable by the applicant which, over the 10-year period, will be approximately AU$460,000, and which sum is substantial in itself. The representative submits that these reasons are cumulatively relevant for consideration in the process and within the framework for ‘compelling’ reasons as anticipated by the reasoning in the case of Bui.
Consideration of ‘compelling and/or compassionate’ circumstances is usually based on express provisions in the Act or the Regulations. However, there are circumstances where these considerations are implied in the Regulations, for example, in the proper approach to the exercise of some discretions. As submitted by the representative, these include the discretion to waive the health criterion[10] (as implied by the case law).
[10] PIC 4007(2)(b)(i)–(ii).
The Department’s policy guidelines reflect that in assessing whether there is a basis to waive the PIC 4007 health criteria, decision-makers should take into account any compelling and compassionate circumstances of the applicants, for example, close family links to Australia and/or reasons why the family would find it difficult to return to their home country.[11] Finally, the Tribunal notes that in order to be ‘compelling’ the objective information available should drive the decision-maker ‘irresistibly’[12] to the point that he or she feels compelled to a particular outcome, and which in all the circumstances is the most logical, correct and preferable decision.
[11] Policy – Migration Regulations - Sch4/4005-4007 – The health requirement - Health waivers – The PIC 4007 health waiver – what does ‘undue’ mean? (re-issue date 14/10/2016).
[12] ‘M64/2015 v Minister for Immigration and Border Protection (2015) 90 ALJR 197, where the plurality (French CJ, Bell, Keane and Gordon JJ) said at [31]: the state of mind required of the Minister (or a delegate) must be reached by reference to “reasons” that are “compelling”; that is, those reasons must “force or drive the decision-maker” “irresistibly” to be satisfied that “special consideration” should be given to granting the particular application.’ – as quoted in Singh v Minister for Immigration and Border Protection [2016] FCA 156 at [23] per North J.
The Tribunal has considered compassionate circumstances or compelling circumstances which may be relevant.[13] These include family links in Australia where Mrs Chaudhary refers to her sister who lives in Brisbane and with whom she is very close and speaks with ‘every day’. Her hope is that her children will spend time with their cousin as they grow older and be able to visit one another. She says her daughter, Ms K, has an interest in cooking and becoming a chef, and she harbours the prospect of one day opening a restaurant with her.
[13] Bui at [47].
The Tribunal has listened to the concerns raised by the parents about the impact on the children occasioned by relocating back to India. The Tribunal places significant weight on the effect of its decisions upon children and those who are unable to speak for themselves during the process.
The Tribunal finds that both parents have considerable occupational skills and employment opportunities which they are actively and successfully pursuing. The Tribunal also places some weight on the evidence presented in this instance about their employment, its sustainability and financial viability and longer term prospects, supported by the respective employers of each of the parents.
The Tribunal has listened to and accepted the mitigating factors presented sincerely and articulately by both parents and supported by the submissions. Those factors include their past and future financial independence, their voluntary contributions and commitment to the local community, and the fact that there are likely to be only limited costs for the remaining three and a half years of the relevant period until September 2026, attributed in part to the applicants providing unassisted private speech therapy for Ms K, and through the NCCD program, the costs of which are partly offset as submitted and explained above.
The Tribunal finds in the circumstances that those past and future costs as found by the RMOC and which the Tribunal must accept, are not ‘undue’, and will be offset in considerable measure by the steps being taken by the applicants themselves as set out above.
Summary – in conclusion
As already indicated, but for the amounts set out in these reasons, the Tribunal is of the view that it is unlikely the Australian community would bear the costs of health services for Ms K, if a visa were granted to her, due to the financial independence of the applicants and the other offsetting factors.
However, even if that were not the case, the Tribunal having considered all of the circumstances canvassed, both individually and cumulatively as set out above, is satisfied that the grant of the visa to Ms K is unlikely to result in an ‘undue cost’ to the Australian community and that the evidence submitted is ‘compelling’ in the sense referenced in Singh. The Tribunal therefore concludes that subparagraph (i) of PIC 4007(2)(b) is met.
As already noted, the MOC has concluded that granting the visa would not be likely to prejudice the access of an Australian citizen or permanent resident to health care or community services. Subparagraph (ii) of PIC 4007(2)(b) is also met.
As the requirements of PIC 4007(2)(b) subparagraphs (i) and (ii) are both met, the requirements of PIC 4007(2)(b) are met. For these reasons, the Tribunal is satisfied that the granting of the visa would be unlikely to result in undue cost or undue prejudice within the terms of PIC 4007(2)(b).
Therefore, PIC 4007(1)(c) may be waived subject to the applicant satisfying all other requirements for the visa.
Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for the visa.
DECISION
The Tribunal remits the application for Employer Nomination (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 – Employer Nomination Scheme visa:
·PIC 4007(2)(b) for the purposes of cl 186.224 of Schedule 2 to the Regulations.
Alan McMurran

Member
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.

[2022] AATA 1007

8 March 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction