Katyal (Migration) - [2024] AATA 2335

Katyal (Migration) [2024] AATA 2335 (28 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Varun Katyal
Ms Priyanka Katyal
REPRESENTATIVE:  Mr Pawan Kumar Bhambi (MARN: 0801321)
CASE NUMBER:  2102460
HOME AFFAIRS REFERENCE(S):                  BCC2018/5398544
MEMBER:Ian Berry
DATE:28 June 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) 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 clause 186.224 of Schedule 2 to the Regulations.

Statement made on 28 June 2024 at 4:27pm
CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – occupation of Cook – health requirements – Medical Officer of the Commonwealth assessment – state funded Early Intervention Program – developmental improvements – no prejudice to access to health care or community services – state government funding for disability services – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 186.223, 186.224; Schedule 4, Public Interest Criterion 4007
CASES
Bui v MIMA (1999) 85 FCR 134
Ramlu v MIMIA [2005] FMCA 1735
Robinson v MIMIA (2005) 148 FCR 182
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs (Department) on 9 February 2021 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (Act).
The applicants applied for the visas on 2 December 2018. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).
The criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.
In the present case, the first named applicant (applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Cook. However circumstances have changed in that the applicant is now employed both as a factory worker for Hanes Australasia Pty Ltd located south-west of Melbourne. The applicant commenced this position as a casual employee where he had the responsibility for caretaking the employer’s inventory. This occurred in April 2021. In February 2023, the applicant commenced full-time employment again in the position of an inventory manager/factory worker now earning an income between $65,000 and $70,000. Then income is derived partly through his working shift…

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 Katyal (Migration)

Details

AGLC: Katyal (Migration) [2024] AATA 2335
Case: [2024] AATA 2335
Decision Date: 28 June 2024

CaseChat Overview and Summary

This matter concerned an application for a Subclass 186 (Employer Nomination Scheme) visa. The applicant, identified as Mr. Katyal, sought to satisfy the health requirements stipulated by Public Interest Criterion (PIC) 4007, which is a prerequisite for this visa subclass. The core of the dispute revolved around whether Mr. Katyal met these health requirements, particularly in light of assessments by a Medical Officer of the Commonwealth (MOC) which indicated he did not.

The Tribunal was required to determine if the applicant met PIC 4007, as mandated by clause 186.224 of the Migration Regulations. This involved considering the MOC's opinions, the applicant's submissions for a health waiver, and various supporting documents related to the applicant's health, financial status, and employment. The Tribunal also had to assess whether the applicant's circumstances warranted a waiver of the health requirements, specifically whether granting the visa would be unlikely to result in undue cost to the Australian community or prejudice access to health care and community services for Australian citizens and permanent residents.

The Tribunal found that while the MOC had assessed the applicant as not meeting the health requirements, there was evidence of developmental improvements and ongoing state government funding for disability services. Crucially, the Tribunal considered that the applicant's condition was unlikely to result in undue prejudice to the access of Australian citizens or permanent residents to health care or community services. Consequently, the Tribunal concluded that the matter should be remitted for reconsideration, directing that the applicant meets PIC 4007(2)(b) for the purposes of clause 186.224.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant meets PIC 4007 which falls under clause 186.224 requiring each member of the family unit of the applicant satisfies PIC 4007. The Tribunal has carefully considered all the evidence previously provided to the delegate to the Department and this Tribunal, as well as the oral evidence provided by the applicants including the information and documents below:·PIC 4007 Health Waiver Form.·Form 884: opinion of a Medical Officer of the Commonwealth dated 17 September 2019 – the applicant does not meet the health requirement.·Health Waiver Information Dated 17 September 2019.·Form 884: opinion of a Medical Officer of the Commonwealth dated 8 May 2020 – the applicant does not meet the health requirement.·Health Waiver Information dated 25 November 2019·Health Waiver Information dated 8 May 2020.·PIC 4007 Health Waiver Submission – Part B – the Health Waiver Submission.·Email Department to applicant dated 29 January 2020 – recent medical/specialist reports provided to MOC.·Decision record made 9 February 2021.·Application For Permanent Employer-Sponsored or Nominated Visa made to December 2018.·The Applicant’s HostPlus superannuation balance statements including 31 December 2017.·The applicant’s Notices of Assessment for the years 2014/2015, 2015/2016, 2016/2017, 2017/2018, 2018/2019·The applicant’s PAYG payment summary for the years 2016, 2017, 2018, 2019·Applicants bank account balance summaries relevant to the 2016, 2017, 2018·The applicant’s individual tax return for the years 2008/2009, 2009/2010, 2010/2011, 2014/2015, 2015/2016, 2016/ 2017·Birth certificate of Master Katyal.·Checklist for transfer of cases to Health Waiver Team dated 16 October 2019.·Email dated 4 March 2020, applicant’s representative to the Department with information concerning the employment of the secondary applicant·Department to the applicant dated 16 October 2019 – invitation to comment on information received as part of a Subclass 186 (Employer Nomination Scheme) visa application.·Applicant – Personal particulars for assessment including character assessment form 80 bracket that dated 26 February 2020.·Secondary applicant Ms Katyal – Personal particulars for assessment including character assessment (form 80) dated 26 February 2020.·Applicant’s payslips for 2018, 2019 and 2020.·Employment agreement between the secondary applicant and her employer dated 27 February 2020. Further, employment agreement between the secondary applicant and her employer dated 5 March 2020.·Email dated 13 May 2020, from the Department (Employer Sponsored Program Delivery) to the applicant’s representative with attachments.·Applicant’s employer’s reference letter dated 2 June 2020.·Email dated 16 January 2020 from the applicant to the Department concerning seeking further information for community assistance.·Email dated 16 October 2019 from Department to applicant concerning the applicant not meeting the health requirements.·General employment agreement dated the 15 June 2014 between the applicant’s employer and the applicant.·General employment agreement between the employer and the applicant effective upon the grant of the applicant’s 186 work visa, executed 25 April 2018.·Department letter dated 21 January 2020 concern response to invitation to comment on information received as part of a Subclass 186 visa and request to waive PIC 4007.Is a MOC opinion required?

Decision

Reasons for decision

Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.DECISION The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) 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 clause 186.224 of Schedule 2 to the Regulations.Ian BerryMemberATTACHMENT A186.223(1) The position to which the application relates is the position:(2) The Minister has approved the nomination.(3) The nomination has not subsequently been withdrawn.(3A) Either:(a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or(b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.(4) The position is still available to the applicant.(5) The application for the visa is made no more than 6 months after the Minister approved the nomination.ATTACHMENT B4007(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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