Lund (Migration)

[2020] AATA 3501

Lund (Migration) [2020] AATA 3501 (7 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jason Lund
Ms Anita Lund
Miss Sienna Rose Lund
Mr Ciaran James Lund
Mr Ewan Jake Lund

CASE NUMBER:  1802929

DIBP REFERENCE(S):  BCC2016/146957

COUNTRY OF REFERENCE:                   United Kingdom

MEMBER:R. Skaros

DATE:7 July 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for Employer Nomination (Permanent) visas for reconsideration, with the direction that the fourth named applicant (Mr Ciaran James Lund) meets the following criteria for a Subclass 186 - Employer Nomination Scheme visa:

·PIC 4007 for the purposes of cl.186.224(2) of Schedule 2 to the Regulations.

Statement made on 07 July 2020 at 5:06pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) Visa – Subclass 186 Employer Nomination Scheme – health requirement for secondary applicant – current Medical Officer of the Commonwealth opinion – updated medical reports – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 186.224; r 2.25

CASES

Ramlu v MIMIA [2005] FMCA 1735
Robinson v MIMIA (2005) 148 FCR 182       

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 2 February 2018 to refuse to grant the applicants Employer Nomination (Permanent) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 11 January 2016. The delegate refused to grant the visas as the fourth named applicant (Mr Ciaran Lund), who is a member of the family unit of the primary visa applicant (Mr Jason Lund) did not satisfy Public Interest Criterion (PIC) 4007(1)(c) for the purposes of cl.186.224(2) of Schedule 2 to the Migration Regulations 1994 (the Regulations).

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

4. The Tribunal notes that during the review, on 1 July 2019, the Department updated its guidelines regarding the health requirement, including the significant cost threshold and assessment period. There were also policy changes regarding the use of State Disability Service and National Disability Insurance Scheme (NDIS) costs which came into effect on 1 April 2020.

5. On 17 June 2020, the Tribunal invited the applicants to obtain a current opinion from a Medical Officer of the Commonwealth (MOC) in respect of Mr Ciaran Lund, which the Tribunal explained could be arranged on their behalf. The applicants were invited to provide any updated information, including medical or specialist reports regarding Mr Ciaran Lund’s condition which they wanted the MOC to consider.

6. On 22 June 2020, the applicants’ representative confirmed that the applicants wished to obtain a further medical opinion. Updated medical reports for Mr Ciaran Lund were also provided, which the Tribunal included in its request for a further opinion from the MOC.

7. On 30 June 2020, the Tribunal received the Opinion of a Review MOC advising that the Mr Ciaran Lund now meets the health requirements.

8. Given the favourable information received, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. Clause 186.224(2) requires that each member of the family unit of the applicant who is an applicant for a Subclass 186 visa satisfies PIC 4007.

11. The issue in this review is whether Mr Ciaran Lund, who is a member of the family unit of Mr Jason Lund (the applicant for the Subclass 186 visa) meets PIC 4007 as required by the criteria for the grant of the visa.

12. Public Interest Criterion 4007, as it applies to this case, is extracted in the attachment to this decision. It 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. This last requirement may be waived in certain circumstances. Mr Ciaran Lund in this case has a mild cognitive impairment.   

    Is the applicant free from the relevant diseases or conditions (PIC 4007(1)(a), (b), (c))?

13. Clauses 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.

14. Clause 4007(1)(c) requires the 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.

15. For specified temporary visas, certain specified health care and community services are excluded from this consideration: PIC 4007(1B). The requirement may also be waived in certain circumstances.

16. As the applicant in this case has applied for a permanent visa, the exemption provision in PIC 4007(1B) does not apply.

17. In determining whether a person meets PIC 4007(1)(a), (b) or (c), r.2.25A requires the Tribunal to seek the opinion of a Medical Officer of the Commonwealth (MOC) unless: 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 the application is for a permanent visa and made from a specified country and there is no information known to Immigration to the effect that the person may not meet those requirements. Where an opinion of a MOC is required, the Tribunal must take it be correct: r.2.25A(3).

    Is a MOC opinion required?

18. On the evidence before the Tribunal, a MOC opinion is required.  As noted above, the Tribunal must take the MOC opinion as correct, but must first be satisfied the MOC has applied the correct test in forming the opinion: Robinson v MIMIA (2005) 148 FCR 182 and Ramlu v MIMIA [2005] FMCA 1735. That is, 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, and the MOC must have applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition.

19. At the time of the delegate’s decision, the opinion of the MOC, dated 23 February 2017, indicated that Mr Ciaran Lund did not satisfy PIC 4007(1)(c)(ii)(A) on the basis that a hypothetical person with this condition, at the same severity as the applicant, would likely require health care or community services during the period specified, being a permanent stay, and that the provision of these services would result in a significant cost to the Australian community.

20. As noted above, changes were made to the policy regarding assessment of the health criterion and a current opinion, based on available medical reports detailing Mr Ciaran Lund’s condition, has been obtained from the Review MOC.

21. The opinion, dated 29 June 2020, states that Mr Ciaran Lund has been assessed against PIC 4007 and meets the health requirement for a permanent stay in Australia. It also notes that the opinion is based on available medical and radiological reports. The Tribunal is satisfied that the opinion is valid. Accordingly, based on the opinion of the MOC, the applicant satisfies PIC 4007.

22. Given the findings above, the appropriate course is to remit the application for the visas to the Minister to consider the remaining criteria for the grant of the visas.

    DECISION

23. The Tribunal remits the application for Employer Nomination (Permanent) visas for reconsideration, with the direction that the fourth named applicant (Mr Ciaran James Lund) meets the following criteria for a Subclass 186 - Employer Nomination Scheme visa:

    ·PIC 4007 for the purposes of cl.186.224(2) of Schedule 2 to the Regulations.

    R. Skaros

    
    

    Senior 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.