Kashyap (Migration) - [2022] AATA 1007

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…

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.

Continue reading Kashyap (Migration)

Details

AGLC: Kashyap (Migration) [2022] AATA 1007
Case: [2022] AATA 1007
Decision Date: 8 March 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Subclass 186 Employer Nomination Scheme visa made by an applicant from India, along with three secondary applicants, who were residing in Tasmania. The primary dispute concerned whether the applicant met the health criteria under Public Interest Criterion (PIC) 4007, specifically in relation to a diagnosed condition of mild cognitive impairment, or Down Syndrome, in the applicant's eldest daughter, Ms K. The applicant contended that granting the visa would not result in an "undue cost" to the Australian community and that the relevant requirements could be waived.

The legal issues before the Tribunal were whether the applicant and secondary applicants met the health requirements of PIC 4007, and if not, whether the waiver provisions under PIC 4007(2)(b) were satisfied. PIC 4007(1)(c) requires an applicant to be free from a disease or condition that would likely necessitate health or community services, the provision of which would likely result in significant cost to the Australian community or prejudice access to such services for Australian citizens or permanent residents. The Tribunal had to determine if the potential costs associated with Ms K's condition constituted an "undue cost" and if there were compelling and compassionate circumstances warranting a waiver.

The Tribunal reasoned that while Ms K had a diagnosed condition requiring ongoing support, the evidence presented indicated that the projected costs to the Australian community were not "undue." This conclusion was based on several factors, including the applicant's financial independence, the family's contributions to the community, the provision of support for Ms K through the National Consistent Collection of Data (NCCD) program, and the family's ability to privately fund additional therapies such as speech pathology. The Tribunal also considered the compelling and compassionate circumstances, such as the family's strong social and community ties in Australia and the potential negative impact of relocation on the children. Applying the principles from cases like *Bui* and *Singh*, the Tribunal found that the cumulative circumstances were sufficient to satisfy the waiver requirements under PIC 4007(2)(b).

Consequently, the Tribunal remitted the application for reconsideration by the Minister, directing that the first applicant met the criteria under PIC 4007(2)(b) for the purposes of clause 186.224 of Schedule 2 to the Regulations, meaning the health requirement could be waived. The Minister was to consider the remaining criteria for the visa grant.

Orders

Orders of the court

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Background

Background to the litigation

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).

Evidence

Evidence Before The Court

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; andb.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?

Decision

Reasons for decision

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 conclusionAs 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.DECISIONThe 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 McMurranMemberATTACHMENTMigration Regulations 1994Schedule 44007(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.

Ratio Decidendi

Legal Principle Established

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