Leona (Migration)

Leona (Migration) [2020] AATA 5305 (14 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Norman Tenerife Leona
Ms Aivie Grace Abellana
Master Xenon Ferzy Leona
Miss Xena Mae Leona
CASE NUMBER:  1811354
DIBP REFERENCE(S):  BCC2017/2237521
COUNTRY OF REFERENCE:                   Philippines
MEMBER:Karen Synon
DATE:14 December 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for Regional Employer Nomination (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 - Regional Sponsored Migration Scheme visa:
·PIC 4007 for the purposes of cl.187.224 of Schedule 2 to the Regulations.

Statement made on 14 December 2020 at 12:52pm
CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) visa – Subclass 187 (Regional Sponsored Migration Scheme – health criteria – health examinations out of date – current examinations provided to tribunal – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 187.224; Schedule 4, PIC 4007

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of decisions made by a delegate of the Minister for Immigration on 11 April 2018 to refuse to grant the applicants Regional Employer Nomination (Permanent) visas under s.65 of the Migration Act 1958 (the Act).
The visa applicants applied for the visas on 24 June 2017. The delegate refused to grant the visa as the first named applicant (now referred to as the applicant) did not satisfy cl.187.224 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4007 of Schedule 4 to the Regulations was not met on the basis that the second named applicant, Ms Aivie Grace Abellana, had not provided evidence of any attempts to arrange for a health examination despite numerous requests.
PIC 4007 is extracted as an attachment to this decision.
The applicants applied for review on 21 April 2018 and provided a copy of the primary decision.
The applicants were represented in relation to the review by their registered migration agent.
The matter was constituted on 14 April 2020.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Upon constitution it became clear that while all the applicants had subsequently undergone the requested health examinations these were (then) over 12 months old and therefore could no longer be relied upon. This was based on the following relevant advice from the Department:
Primary applicant - LEONA, Norman Tenerife…Auto cleared (met health) to a permanent standard 12 February 2018 – valid to 12 February 2019
Dependant applicant: ABELLANA, AIVIE GRACE…Met Health to a permanent standard 4 January 2019 – valid to 4 January 2020
Dependant applicant LEONA, Xenon Ferzy…Auto cleared (met health) to a permanent standard 21 February 2018 – valid to 21 February 2019
Dependant Applicant: LEONA, XENA MAE…Auto cleared (met health) to a permanent standard 21 February 2018 – valid to 21 February 2019.
On 17 April 2020 the Tribunal wrote to the applicants, via their representative advising them of this and requesting that all four applicants undertake new health examinations.
On 17 July 2020 the Department advised the Tribunal as relevantly follows:
LEONA, Norman Tenerife…recommend cleared 10 July 2020
ABELLANA, AIVIE GRACE… – outstanding
LEONA, Xenon Ferzy…recommend cleared 10 July 2020
LEONA, XENA MAE…Outstanding
On 11 August 2020 the Department relevantly advised the Tribunal:
RE: ABELLANA, AIVIE GRACE... The HAP indicates that on 27 July 2020, Ms Abellana’s health case was deferred pending further investigations for Tuberculosis. Please find attached a copy of the 884 Deferred letter for your convenience.
On 7 December 2020 the Department advised that ABELLANA, AIVIE GRACE’s health case was finalised as ‘Meets with Undertaking” on 6 November 2020 in accordance with PIC 4007(1)(d).
On 8 December 2020 the Tribunal contacted the applicants’ representative to request Aivie Grace Abellana’s undertaking.
On 11 December 2020 ABELLANA, AIVIE GRACE’s signed undertaking on Form 815 was provided.
Further, on 14 December 2020, a check of the Department’s Integrated Client Services Environment (ICSE) records confirmed that LEONA, XENA MAE had undergone a further health test (the first one expired on 21 February 2019) and was auto cleared on 17 July 2020.
Clause 187.224 requires
(1) The applicant satisfies public interest criterion 4007.
(2) Each member of the family unit of the applicant who is an applicant for a Subclass 187 visa satisfies public interest criterion 4007.
(3) Each member of the family unit of the applicant who is not an applicant for a Subclass 187 visa satisfies public interest criterion 4007 unless it would be unreasonable to require the member to undergo assessment in relation to the criterion.
On the basis of all the applicants undertaking further medical assessments and deemed to have met the health requirement, including ABELLANA, AIVIE GRACE providing a signed undertaking in accordance with PIC 4007 (1)(d), the Tribunal is satisfied that all applicants meet the requirements of PIC 4007.
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 Regional Employer Nomination (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 - Regional Sponsored Migration Scheme visa:
·PIC 4007 for the purposes of cl.187.224 of Schedule 2 to the Regulations.
Karen Synon

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.

[2020] AATA 5305

14 December 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Remedies

Jurisdiction