LEUNG (Migration)

[2020] AATA 3343

LEUNG (Migration) [2020] AATA 3343 (5 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Man Ting LEUNG
Mr Hong-yi LIOU

CASE NUMBER:  1913761

DIBP REFERENCE(S):  BCC2017/2259983

MEMBER:R.Skaros

DATE:5 August 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Regional Employer Nomination (Permanent) visas for reconsideration, with the direction that the second named applicant meets the following criteria for a Subclass 187 -  Regional Sponsored Migration Scheme visa:

·PIC 4005(1)(c)(ii)(A) for the purposes of cl.187.235(2) of Schedule 2 to the Regulations.

Statement made on 05 August 2020 at 3:26pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class EN) – Subclass 187 (Regional Sponsored Migration Scheme) – health criteria – two assessments by medical officers of commonwealth found second applicant did not meet requirements – threshold for significant costs updated since last assessment – costs associated with second applicant’s condition now fall below threshold – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), Schedule 2, cl 187.235(2), Schedule 4, criterion 4005(1)(c)(ii)(A)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 16 May 2019 to refuse to grant the applicants Regional Employer Nomination (Permanent) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 26 June 2017. The delegate refused to grant the visa on the basis that the first named applicant (the applicant) did not satisfy cl.187.235 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4005 of Schedule 4 to the Regulations was not met by the second named applicant.

3. The applicants were represented in relation to the review by their registered migration agent.

4. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicants on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the second named applicant, who is required under the Regulations to provide a MOC opinion, meets the requirements in PIC 4005(1)(c)(ii)(A).

7. Public interest criterion 4005(1)(c) requires the second named applicant be free from a disease or condition which would be likely to require health care or community services or which would meet the medical criteria for provision of a community service during the specified period; and  provision of the health care or community services (regardless of whether it will actually be used in connection with the applicant) would be likely to: result in a significant cost to the Australian community in the areas of health care and community services; or prejudice access of an Australian citizen or permanent resident to health care or community services.

8. On 21 July 2017 a Medical Officer of the Commonwealth (MOC) formed the opinion that the second named applicant did not meet the requirements in PIC 4005. In a further opinion of a MOC dated 6 February 2019, the second named applicant was again found not to meet PIC 4005(1)(c)(ii)(A).

9. On review, in a submission dated 4 June 2020, the applicants requested that a further opinion for the second named applicant be obtained from the MOC on the basis that the threshold for significant costs under the Department’s Procedures Advice Manual (PAM3) on Schedule 4 PIC 4005, had been updated since the making of the most recent MOC opinion. It was submitted that the costs associated with the second named applicant’s medical condition now fell below the new cost threshold specified as significant.

10. On 16 June 2020 the Tribunal wrote to the MOC and requested a further opinion.

11. The Tribunal received an opinion from the MOC dated 17 June 2020. The opinion, on Form 884: Opinion of a Review Medical Officer of the Commonwealth, indicated that the second named applicant, Honh-Yi Liou, has been assessed against PIC 4005 and meets the health requirement for a permanent stay in Australia.

12. Accordingly, based on the most recent opinion of the MOC, the Tribunal is satisfied that the second named applicant satisfies PIC 4005(1)(c)(ii)(A).

    Conclusion

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

    DECISION

14. The Tribunal remits the applications for  Regional Employer Nomination (Permanent) visas for reconsideration, with the direction that the second named applicant meets the following criteria for a Subclass 187 -  Regional Sponsored Migration Scheme visa:

    ·PIC 4005(1)(c)(ii)(A) for the purposes of cl.187.235(2) of Schedule 2 to the Regulations.

    R. Skaros
    

    Senior Member

    
    
    

    ATTACHMENT

    Migration Regulations 1994

    Schedule 4

    4005(1)         The applicant:

    (aa)if the applicant is in a class of persons specified by the Minister in an instrument in writing for this paragraph:

    (i)must undertake any medical assessment specified in the instrument; and

    (ii)must be assessed by the person specified in the instrument;

    unless a Medical Officer of the Commonwealth decides otherwise; and

    (ab)must comply with any request by a Medical Officer of the Commonwealth to undertake a medical assessment; and

    (a)is free from tuberculosis; and

    (b)is free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community; and

    (c)is free from a disease or condition in relation to which:

    (i)a person who has it would be likely to:

    (A)require health care or community services; or

    (B)meet the medical criteria for the provision of a community service;

    during the period described in subclause (2); and

    (ii)the provision of the health care or community services would be likely to:

    (A)result in a significant cost to the Australian community in the areas of health care and community services; or

    (B)prejudice the access of an Australian citizen or permanent resident to health care or community services;

    regardless of whether the health care or community services will actually be used in connection with the applicant; and

    (d)if the applicant is a person from whom a Medical Officer of the Commonwealth has requested a signed undertaking to present himself or herself to a health authority in the State or Territory of intended residence in Australia for a follow-up medical assessment — has provided the undertaking.

    (2)For subparagraph (1) (c) (i), the period is:

    (a)for an application for a permanent visa — the period commencing when the application is made; or

    (b)for an application for a temporary visa:

    (i)the period for which the Minister intends to grant the visa; or

    (ii)if the visa is of a subclass specified by the Minister in an instrument in writing for this subparagraph — the period commencing when the application is made.

    (3)If:

    (a)the applicant applies for a temporary visa; and

    (b)the subclass being applied for is not specified by the Minister in an instrument in writing made for subparagraph (2) (b) (ii);

    the reference in sub-subparagraph (1) (c) (ii) (A) to health care and community services does not include the health care and community services specified by the Minister in an instrument in writing made for this subclause.