Manpreet Singh (Migration) - [2023] AATA 4186

Manpreet Singh (Migration) [2023] AATA 4186 (13 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Manpreet Singh
Mrs Jaspreet Kour
Master Ekam Singh Maan
Master Fateh Singh Maan
REPRESENTATIVE:  Mr Yadav Harsh (MARN: 2117646)
CASE NUMBER:  2016717
HOME AFFAIRS REFERENCE(S):          BCC2018/4696452
MEMBER:Katie Malyon
DATE:13 November 2023
PLACE OF DECISION:  Sydney
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

cl 186.224(2) of Schedule 2 to the Regulations.

Statement made on 13 November 2023 at 11:00 am
CATCHWORDS
MIGRATION – Employer Nomination (Permanent) Visa – Subclass 186 Employer Nomination Scheme – health requirement waiver for secondary applicant – undue cost to the Australian community – medical assessment waiver – compassionate or compelling circumstances – capacity to mitigate the potential costs – recalculation of cost estimates – occupations in demand – contribution to the community – decision under review remitted
LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cl 186.224; Public Interest Criterion 4007; r 2.25
CASES
Bui v MIMA [1999] FCR 118
Ramlu v MIMIA [2005] FMCA 1735
Robinson v MIMIA (2005) 148 FCR 182
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
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 on 9 November 2020 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants - Indian nationals Manpreet Singh, his wife Jaspreet Kour and the couple’s twin sons, 8½ year old Ekam Singh Maan and Fateh Singh Maan - applied for the visas on 25 October 2018. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).
Criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (Cth) (the 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.
BACKGROUND
In this case, the first named applicant Manpreet Singh, is seeking the visa in the Temporary Residence Transition stream to continue working in the nominated position of Vegetable Grower ANZSCO 121221 with his employer and the sponsor of his Subclass 457 visa, Sydney Hydro Pty Ltd (the Company).
The…

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 Manpreet Singh (Migration)

Details

AGLC: Manpreet Singh (Migration) [2023] AATA 4186
Case: [2023] AATA 4186
Decision Date: 13 November 2023

CaseChat Overview and Summary

This matter concerned a review by the Administrative Appeals Tribunal of a decision concerning the Subclass 186 Employer Nomination Scheme visa application by Manpreet Singh, with Ekam Singh Maan listed as a secondary applicant. The core dispute revolved around whether Ekam Maan met the health requirement under Public Interest Criterion (PIC) 4007, specifically concerning a diagnosis of Mild Cognitive Impairment, which the delegate had found he did not satisfy.

The Tribunal was required to determine if Ekam Maan was free from diseases or conditions that could pose a threat to public health or the Australian community, or that would likely require health or community services resulting in significant cost to the Australian community or prejudice access for citizens and permanent residents. The Tribunal also had to consider whether the PIC 4007 requirement could be waived, given that the exemption for temporary visas did not apply to this permanent visa application. A key legal issue was the extent to which the Tribunal could consider circumstances at the time of the decision, rather than solely at the time of the visa application, when recalculating cost estimates.

The Tribunal reasoned that while Medical Officer of Commonwealth (MOC) opinions are generally taken as correct, it must first be satisfied that the MOC applied the correct statutory criteria. In recalculating the potential costs to the Australian community, the Tribunal considered the applicant's circumstances at the time of the decision, as permitted by case law. Despite a recalculation reducing the estimated costs to $103,020, this amount still significantly exceeded the policy threshold of $51,000 for a "significant cost." However, the Tribunal also considered a paediatrician's report which indicated Ekam Maan's condition required minimal support, that his parents were committed to private therapy, and that he was otherwise healthy and progressing well, suggesting a potential for a waiver.

Ultimately, the Tribunal concluded that the matter should be remitted for reconsideration. This was based on the Tribunal's recalculation of the estimated costs to the Australian community and its consideration of the professional reports detailing Ekam Maan's current health status and the level of support he required.

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 this review is whether the third named applicant, Ekam Singh Maan, meets PIC 4007 as required by the criteria for the grant of the visa. PIC 4007 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. In this case, the delegate found that, having regard to the First MOC Opinion, Ekam Singh Maan did not satisfy PIC 4007 on the basis he being a person with Mild Cognitive Impairment. Is Ekam Maan free from the relevant diseases or conditions: PIC 4007(1)(a), (b), (c)? Clauses 4007(1)(a) and (b) of Schedule 4 to the Regulations require Ekam Maan, as a member of the primary applicant’s family unit, to be not only free from tuberculosis but also free from a disease or condition that is, or may result in him being, a threat to public health in Australia or a danger to the Australian community. Clause 4007(1)(c) requires Ekam Maan 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 it would prejudice the 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). The requirement may also be waived in certain circumstances. As Ekam Maan has applied for a Subclass 186 Employer Nomination Scheme permanent visa, the exemption provision in PIC 4007(1B) does not apply in this case. In determining whether a person meets PIC 4007(1)(a), (b) or (c) of Schedule 4 to the Regulations, reg 2.25A requires the Tribunal to seek the opinion of a 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: reg 2.25A(3).Is a MOC opinion required? On the evidence before the Tribunal, a MOC opinion is required. As noted above, the Tribunal must take the MOC opinion as correct, but it 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. The MOC’s opinion must identify the medical condition to which the PIC has been applied, and the form or level of the condition suffered by the applicant and, further, the MOC must have applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition.

Decision

Reasons for decision

Having regard to the fact that Ekam Maan will be 9 years old in just 3 months and based on its recalculation of cost estimates of the provision of healthcare and special community services as at the time of this decision, the Tribunal has recalculated the total cost to the Australian community of $103,989 as set out in Table 2 below: Table 2 - Ekam Maan’s likely required health care or community services (as at the time of this decision) The Tribunal acknowledges that MOCs and RMOCs are required to make their assessment as at the time of visa application, in this case, 25 October 2018. However, mindful of dicta in the Full Federal Court’s decision in Bui’s case referred to above, it is relevant for the Tribunal to consider the applicants’ circumstances at the time of this decision. Accordingly, the Tribunal has estimated costs for Commonwealth disability services and NSW Special Education services as being reduced to $103,020. As noted above, consistent with immigration policy since September 2021 and as set out PAM 3, the current threshold for the level of costs regarded as significant is $51,000. The Tribunal’s recalculation of actual costs for Commonwealth disability services and Special education services as at the time of its decision has reduced the costs set out in the Third MOC Opinion from $164,760 to an estimated total cost of $103,020. However, this recalculation of costs is more than double the significant cost of $51,000 identified in policy and, accordingly, it is necessary for the Tribunal to proactively decide whether this is an appropriate case to waive the PIC requirements. Health of Ekam Maan The Tribunal has considered the professional reports provided and which comment on the condition experienced by Ekam Maan that led to the delegate’s finding that he does not satisfy PIC 4007(1)(c)(ii)(A) of Schedule 2 to the Regulations. In his letter of 30 August 2023, Paediatrician Dr Kumar Duraisamy who works with Kids Health Space in Oran Park provides the following summary: “Ekam is an 8 year old boy was diagnosed with Autism spectrum disorder level two with progression to level one now, which requires minimal support and has mild language developmental delay . It is unfortunate Ekam was unable to receive the Australian Government Free early interventional support services due to the pending permanent resident visa.However, I see Parent (sic) have taken significant effort and provide him regular speech therapy privately and admitted Ekam to a school which offers a great support. As a result, Ekam has showed significant improvement in his development, behaviour and learning. At present he has been progressing well towards achieving a level of independent self-care daily functioning. Having said that, Ekam still would benefit from regular speech therapies which parents are happy to pay privately and not seek help from NDIS.I believe Ekam has a good group of close friends and that helps for his social skill development. Ekam feels happy when he is around his friends and vice versa. By definition of Health - “physical, psychological and social wellbeing“- currently Ekam is remaining healthy and progressing well. Ekam current level of Autism and speech delay thus require minimal support and, in my opinion, doesn’t cost much costs of public health services. Ekam at present is well looked after by his parents, school teachers, friends and therapists and continuing this care would help his future growth and psychological well being.”…

Ratio Decidendi

Legal Principle Established

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