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

1. 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).

2. 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).

3. 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

4. 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).

5. The delegate refused to grant the visas on the basis Mr Singh did not meet cl 186.224 of Schedule 2 to the Regulations because Public Interest Criterion (PIC) 4007 was not satisfied.  This arose as ones of Mr Singh’s sons, the third named applicant Ekam Singh Maan, was assessed by a Medical Officer of the Commonwealth (MOC) on 15 August 2019 (the First MOC Opinion) as not satisfying PIC 4007(1)(c)(ii)(A) due to the fact that he had been assessed as being a person with Mild Cognitive Impairment.  The delegate decided not to waive the requirements of PIC 4007(1)(c) on the basis that a waiver would likely result in significant, undue cost to the Australian community in the areas of health care and/or community services.

6. Following refusal of the applicants’ Subclass 186 visa application, they sought review of the delegate’s decision by the Tribunal.

   The Tribunal’s s 359A letter and an invitation to obtain a further MOC opinion

7. On 1 August 2023, the Tribunal wrote to the applicants under s 359A of the Act and invited them to comment on or respond to information in the First MOC Opinion that Ekam Maan does not meet PIC 4007(1)(c)(ii)(A) of Schedule 4 to the Regulations.

8. The Tribunal informed the applicants that this information is relevant to the review because cl 186.224 in Schedule 2 to the Regulations requires that Ekam Maan meets PIC 4007 and that, if this criterion is not met, the visa cannot be granted. As such, the Tribunal must affirm the decision under review unless the Tribunal decides to waive this requirement. In addition, the Tribunal informed the applicants that given the passage of nearly 4 years since the MOC’s opinion of 15 August 2019, it could arrange for a further opinion to be obtained.

9. On 7 August 2023, Mr Singh responded to the Tribunal’s letter and requested a further MOC opinion.  Unfortunately, no updated specialist’s reports were provided to the Review Medical Office of the Commonwealth (RMOC).  On 15 August 2023, the Tribunal received a new MOC opinion dated 15 August 2023 (the Second MOC Opinion). The Second MOC Opinion assessed Ekam Maan against PIC 4007 and, again, found that he did not meet PIC 4007(1)(c)(ii)(A). 

10. Subsequently, on 22 August 2023 the Tribunal invited the applicants to attend a hearing on 13 September 2023. In a separate letter of the same date, it also invited them consistent with s 359A of the Act to comment on the unfavourable outcome of the Second MOC Opinion

11. Prior to the hearing, the newly appointed representative - registered migration agent, Mr Yadav Harsh - provided the Tribunal with a detailed submission together with an extensive range of documentation including:

    1)Statutory Declaration from Mr Singh and his wife Mrs Kour sworn 12 September 2023;

    2)signed letters from health professionals treating Ekam Maan:

    a)    Dr Kumar Duraisamy, Consultant Paediatrician with Kids Health Space, Oran Park dated 30 August 2023;

    b)    Dr Pankaj Garg, Paediatrician with Darcy Road Specialists dated 30 August 2023 including a copy of Dr Garg’s earlier letter of 11 January 2020; and,

    c)    Sarah Prestipino, Speech Pathologist at Blacktown Speech Pathology dated 30 August 2023 with attached copies of her Client Progress Reports dated 27 March 2020 and 7 July 2020 together with selected receipts for payment of weekly speech pathology therapy services dated 18 July 2020, 23 January 2021, 24 April 2021, 6 August 2021, 30 October 2021, 26 November 2022, 4 March 2023, 22 April 2023, 6 July 2023, 26 August 2023, 2 September 2023 and 9 September 2023;

    3)documentation from Kemps Creek Public School and NSW Education in relation to Ekam Maan:

    a)    letter from Assistant Principal Support, Ms Tracie Gough;

    b)    School Reports for: the year ended 9 December 2020; Semesters 1 and 2 in 2021; and, Semesters 1 and 2 in 2022;

    c)    awards including: Principal’s Award – Safe and Respectful Learning dated 7 December 2020; Certificates for Completion of 2020 and 2021 NSW Premier’s Reading Challenge; Certificate Personal Achievement dated 15 December 2021; Certificate for Outstanding Commitment to Learning dated 14 December 2022; Merit Certificates dated 25 March 2022, 23 May 2022, 5 September 2022; and, Kemps Creek’s 2023 Citizenship Award; and,

    d)    multiple Tax Invoices and Receipts issued by NSW Department of Education - Temporary Residents Program from 13 February 2021 to 4 September 2023 for Ekam Maan’s education fees of $1,400 per term (that is, $5,600 per annum);

    4)evidence of Private Health Insurance with BUPA dating from 11 April 2016;

    5)Medicare claims history for Ekam Maan;

    6)evidence of the ability of Mr Singh and his wife to fund any expenses relating to ongoing treatment for their son Ekam Maan:

    a)    Confidentiality Agreement made between Mrs Kour and Empowering Disability Partners Pty Ltd (Empowering Disability Partners) dated 7 September 2023 confirming her employment with Empowering Disability Partners as a Disability Care Worker;

    b)    [Bank 1] Bank Statements summaries for each of Mr Singh and Mrs Kour confirming current bank balances respectively of $[amount] and $[amount];

    c)    ATO Income Tax records for Mr Singh and Mrs Kour downloaded from the ATO’s website;

    d)    evidence of the recent transfer of funds totalling $68,000 from family and friends - Iqubal Singh Brar, Sukhdeep Singh Athwal, Lakhvinder Singh Brar, Sukvinder Bhullar, Gurvinder Singh and Verinder Singh Saggu - to the bank accounts of Mr Singh and Mrs Kour;

    e)    Affidavit from Gurjant Singh and his wife Harbans Kour, the parents of Mr Singh (the grandparents of Ekam Maan) dated 6 September 2023 sworn in Rajisthan, India;

    f)     evidence of Gurjant Singh’s net worth in India as confirmed in a signed Statement issued by Chartered Accountant Sheril Gupta dated 4 September 2023 in relation to agricultural land and residential property in Sri Ganganagar, Rajasthan as well as gold jewellery and cash totalling Rs 3,31,27,200 (AUD $626,561);[1] and,  

    [1] Currency Converter | Foreign Exchange Rates | OANDA

    g)    evidence of Mr Singh’s net worth in India as confirmed by a Statement issued by Chartered Accountant Sheril Gupta dated 4 September 2023 in relation to agricultural land and gold jewellery totalling Rs 2,90,27,000 (AUD $549,011);[2]   

    [2] Ibid

    7)Statutory Declarations confirming ongoing financial support for the applicants from:

    a)    Sukhdeep Singh Athwal sworn 4 September 2023 together with the biodata page of his Australian passport issued 17 October 2022 evidencing his signature and evidence of his [Bank 2] bank balance of $[amount].  Mr Athwal is Mrs Kour’s bother, so he is Ekam Maan's uncle,

    b)    Sukvinder Singh Bhullar sworn 11 September 2023 together with the biodata page of his Australian passport issued 11 November 2015 evidencing his signature;

    c)    Iqubal Singh Brar sworn 7 September 2023 together with the biodata page of his Australian passport issued 4 Sept 2020 evidencing his signature;

    d)    Lakhvinder Singh Brar sworn 5 September 2023 together with the biodata page of his Australian passport issued 1 May 2016 evidencing his signature;

    e)    Verinder Singh Saggu sworn 5 September 2023 together with the biodata page of his Australian passport issued 14 November 2018 evidencing his signature;

    f)     Gurvinder Singh worn 6 September 2023 together with the biodata page of his Australian passport issued 18 February 2019 evidencing his signature; and,

    8)signed letter of support and Statutory Declarations confirming ongoing support for the applicants from:

    a)    Mandiner Singh Banwait, Secretary of the Sri Guru Singh Sabha (Sikh Association of Sydney) ABN 78 698 593 613; and,

    b)    David Refalo, the Company’s Director dated 7 September 2023 together with Mr Refalo’s NSW Driver’s Licence evidencing his signature;

    c)    Ms Charanjit Kaur; and,

    d)    Zoya Mohammed.

    Evidence set out in the documentation provided prior to the hearing is discussed below. 

    Hearing – 13 September 2023

12. The applicants appeared before the Tribunal on 13 September 2023 to give evidence and present arguments.  The Tribunal also received oral evidence from: the Company’s Director David Refalo; Ms Charanjit Kaur, a personal friend of the applicants who works as a Disability Worker and who is also the mother of an autistic child; and, Sukhdeep Singh Athwal.  As noted above, Mr Athwal is the brother of the second named applicant Mrs Jaspreet Kour.  The Tribunal found all witnesses to be credible.  The hearing was conducted with the assistance of an interpreter in the English and Punjabi languages.  Only Mr Athwal used the interpreter, and then on occasions only.  The representative also attended the hearing. 

13. The Tribunal discussed with Mr Singh and Mrs Kour the evident improvement in Ekam Maan’s ‘Mild Cognitive impairment‘ in the last 4 years as identified in the First MOC Opinion dating from 15 August 2019 and as confirmed by the letters from by the paediatricians and speech pathologist who have provided professional services to Ekam Maan since then.  It noted that the Second MOC Opinion of 15 August 2023 had estimated a reduced total cost of $154,560 for Commonwealth disability services ($135,660) and special education services ($18,900) for Ekam Maan.  This was down from $293,000 as stated in the First MOC Opinion of 15 August 2019.  The Tribunal observed that it appeared the RMOC did not have the benefit of updated letters from the paediatricians and speech pathologist when preparing the Second MOC Opinion and, as such, it suggested a further opinion from the RMOC may be appropriate.  Mr Singh and Mrs Kour agreed to obtain a third opinion. 

14. During the hearing, Mr Singh and Mrs Kour told the Tribunal how their son Ekam Mann’s disability has improved significantly over the last 4 years with the benefit of professional services offered by the speech pathologist and other medical practitioners as well as the engaging and enduring support from family, friends and Ekam Maan’s schoolteachers.  They confirmed that they had, often with the help of family and friends, paid for all of Ekam’s professional services given by his speech pathologist and paediatricians.  Evidence provided during the hearing is discussed further below.

15. By way of summary, evidence from Ms Charanjit Kaur, who is a Disability Support Worker and herself the mother of a child with autism, confirmed comments from Mrs Kour and Mr Singh regarding the significant improvement in Ekam Mann’s disability with the benefit of professional support from medical and allied professionals, in particular, the speech therapist Ms Sarah Prestipino.  Mrs Kour’s brother, Australian citizen Sukhdeep Singh Athwal, confirmed that he and other family members are ready, willing and able to assist financially to the extent required to support Mrs Kour and her family by engaging proactively with regular family interactions.  He added his children love to engage with their twin cousins.

16. The Company’s director David Refalo told the Tribunal the Company has grown significantly since Mr Singh joined the business and, given the dire shortages of workers in the agricultural sector, losing him would be absolutely devastating to the business.  He agreed to provide evidence after the hearing of his claimed growth in the business since Mr Singh joined and was sponsored by the Company on a Subclass 457 visa.  Further details in relation to oral evidence provided at the hearing as discussed below. 

    Documentation lodged after the hearing

17. Following the hearing, the representative submitted further documentation for the Tribunal’s consideration:

    1)an updated signed letter from Kemp’s Creek Public School’s Relieving Principal Carly Sheridan and Assistant Principal Support Classroom Teacher Tracie Gough dated 14 September 2023;

    2)copies of further awards issued to Ekam Maan by Kemps Creek Public School;

    3)revised letter from Sarah Prestipino, Speech Pathologist dated 30 August 2023 correcting a typographical error in relation to Ekam Maan’s date of birth in her earlier letter referred to above;

    4)Mrs Kour’s qualifications and registration as a nurse and midwife in India including her Diploma in General Nursing & Midwifery issued by Rajasthan Nursing Council on 20 July 2011 and her Certificate of Registration as a Nurse and Midwife with Rajasthan Nursing Council dated 31 December 2015;

    5)Mrs Kour’s Certificate III in Individual Support (Ageing & Disability) issued by CUBE Institute based in Caufield North in Victoria dated 4 November 2021 together with her academic transcript;

    6)

    a recent payslip for Mrs Kour from Empowering Disability Partners for the period

    
    

    4 - 17 September 2023 confirming her base rate of pay ranges from $31.60 per hour for ordinary hours on weekdays, $44.24 per hour for casual work on Saturdays and $56.88 per hour for casual work on Sundays;

    7)multiple payslips for Mr Singh from the Company for the period from 1 January 2023 - 19 September 2023 confirming his salary of $67,080 per annum;

    8)Mr Singh’s Income Statement for the year ended 30 June 2023 confirming his salary of $67,080 per annum plus superannuation of $7,043;

    9)Profit & Loss Statements for the Company for years ended 30 June 2016 – 2023 confirming annual turnover has increased more than three-fold over that 5 year period; and,

    10)Payroll Summary for the Company’s staff for years ended 30 June 2017 - 2023 confirming staffing numbers have more than doubled from 3 to now 7 employees.

18. The representative also requested, and the Tribunal facilitated, a third MOC opinion.  It forwarded to the MOC the specialists’ letters referred to above at para [11(2)] as well as the updated letters from Kemp Creek Public School and the Speech Pathologist referred to in para [17(1)-(3)].  Subsequently, the Tribunal received an updated opinion from the RMOC dated 28 September 2023 (the Third MOC Opinion).   

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. 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)?

21. 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.

22. 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.

23. 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.

24. 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.

25. Where an opinion of a MOC is required, the Tribunal must take it be correct: reg 2.25A(3).

    Is a MOC opinion required?

26. 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.

1. On 15 August 2019, Ekam Maan was assessed by a MOC in the First MOC Opinion as not satisfying PIC 4007(1)(c)(ii)(A).  As indicated above, there have been 2 subsequent assessments made by the RMOC in respect of Ekam Maan.  The Tribunal must have regard to the most recent assessment to determine whether Ekam Maan meets the health requirement. 

2. The Tribunal has considered the Third MOC Opinion prepared by the RMOC and is satisfied it correctly identifies Ekam Maan’s medical condition as well as the level or severity of his condition.  It is also satisfied that the RMOC has correctly applied the statutory criteria by reference to a hypothetical person suffering at the same level or severity of the medical condition experienced by Ekam Maan.  Accordingly, the Tribunal is satisfied that the RMOC has applied the correct test and it takes the Third MOC Opinion to be correct.

3. The Third MOC Opinion expressly states that, for the purposes of giving its updated opinion and in line with PIC 4007(1A)(a) of Schedule 4 to the Regulations, Ekam Maan was assessed as a 3 year old person to reflect his age at the time of visa application. It acknowledges evidence provided in the professional reports and the letter from Kemp Creek Public School forwarded by the Tribunal that Ekam Maan has showed significant improvement in his development, behaviour and learning with early intervention services including speech therapy. It also notes he currently attends a mainstream school in a Support Unit (Autism class) and has improved from Level 2 to Level 1 autism spectrum disorder with mild language and developmental delay as set out in the latest reports from paediatricians Dr Kumar Duraisamy and Dr Pankaj Garg dated 30 August 2023, the speech pathologist report dated 30 August 2023 and the most recent letter from Kemps Creek Public School dated 14 September 2023.

4. Notwithstanding the acknowledgement by the RMOC that Ekam Maan’s condition has shown significant improvement, the Third MOC Opinion concludes that Ekam Maan has been assessed with ‘Mild autism spectrum disorder'.  The Third MOC Opinion states that Ekam Maan’s condition would likely result in a significant cost to the Australian community in the areas of health care/or community services at an estimated total cost of $164,760 on the basis that he would likely require health care or community services as set out in Table 1 below:

   Table 1 - Ekam Maan’s likely required health care or community services (as at the time of visa application) for a 3 year old
   
   

31.      1	32.      Commonwealth disability services - $6,300.00 x 3.0 Years Age 4-6, early intervention services, mild developmental delay; costed as per amended (weighted) mean NDIS budgets based on Participation Data costing via the NDIS dated June 2023	$18,900
2	Commonwealth disability services - $5,100.00 x 2.0 Years Age 7-8, early intervention services, mild developmental delay; costed as per amended (weighted) mean NDIS budgets based on Participation Data costing via the NDIS dated June 2023. Noted NDIS has extended early intervention services up to age 8 inclusive from 1 July 2023.	$10,200
3	Special education services - $19,380.00 x 7.0 Years From age 7, state-funded special education funding level 2; Cost estimate based on Disability Services Notes for Guidance May 2023, including but not limited to Table 4	$135,660
Total	$164,760

1. Consistent with immigration policy set out in the Procedures Advice Manual (PAM 3), since September 2021 the threshold for the level of costs to be regarded as ‘significant’ is $51,000. As required by PIC 4007(1A)(a) of Schedule 4 to the Regulations, the RMOC has calculated the total cost of healthcare or community services at $164,760 for the period commencing when the visa application was made on 25 October 2018 when Ekam Maan was 3 years old. Based on the assessment set out above, the RMOC concludes in the Third MOC Opinion that Ekam Maan does not satisfy PIC 4007(1)(c)(ii)(A) in Schedule 4 to the Regulations.

2. Accordingly, based on the opinion of the MOC in the Third MOC Opinion, Ekam Maan does not satisfy PIC 4007(1)(c).

   Should the requirements of PIC 4007(1)(c) be waived?

3. The requirement in PIC 4007(1)(c) to be free of a disease or condition that would impact on health or community services, may be waived if among other things, the decision maker is satisfied that the granting of the visa would be unlikely to result in either ‘undue cost to the Australian community’ or ‘undue prejudice to the access to health care or community services of an Australian citizen or permanent resident’: PIC 4007(2).

4. The evaluative judgment of whether the cost to the Australian community or prejudice to others is ‘undue’ may import consideration of compassionate or other circumstances: Bui v MIMA [1999] FCR 118 (Bui’s case) at [47]. Over and above the consideration of the likelihood that cost or prejudice will be ‘undue’, there is also the discretionary element of the Ministerial waiver. Within that discretion, compassionate circumstances or compelling circumstances may be relevant and may properly have a part to play: Bui case at [47].  Immigration policy provides guidance on the exercise of this discretion.  Policy states that, given the broad range of discretionary considerations which can be taken into account, the individual circumstances of the particular applicant need to be considered in coming to a conclusion about whether the granting of the visa would be unlikely to result in undue cost or undue prejudice to the access to health care or community services by an Australian citizen or permanent resident. 

5. Factors are set out in PAM 3 that may be relevant to consider whether a waiver is appropriate.  Broadly speaking, in the circumstances of this case, these relevant factors relate to:

   ·the capacity to mitigate the potential costs such as an ability to access resources involved in accessing private medical treatment including: income, assets and, savings; and/or, available support from family or community groups;

   ·family links to Australia and the impact on family members;

   ·the occupational skills of, relevantly, family members;

   ·the potential contribution to Australia by, relevantly, family members including their social, emotional and community ties to Australia;

   ·other compelling and compassionate circumstances including the circumstances of the applicant and family members; and,

   ·any other relevant factors.

6. In its consideration of whether the requirements of PIC 4007(1)(c) should be waived, the Tribunal has taken into consideration all of the written and oral evidence submitted on behalf of the applicants including the medical and supporting documents provided as well as their representative’s submissions.  In doing so, the Tribunal accepts that the estimated total cost of $164,760 as set out in the Third MOC Opinion is significant.  However, for the following reasons the Tribunal has concluded that the granting of the visa would be unlikely to result in undue cost to the Australian community. 

   Actual condition of the applicant at the time of this decision as distinct from the hypothetical person at the time of visa application

7. All three of the MOC opinions correctly state that, at the time of visa application, Ekam Maan was a 3-year-old person.  Each of the MOC’s opinions assessed relevant data available to them by reference to a hypothetical person of this age.  However, relevant to the Tribunal’s consideration of whether a waiver is appropriate in this case, it notes that Ekam Mann is now 8 years of age: he celebrated his eighth birthday on 11 February 2023 and will turn 9 years of age in just over 3 months.

8. Taking into account the individual circumstances of Ekam Maan, the Tribunal is of the view that all 3 costings for Commonwealth disability services set out in Table 1 at para [30] require reconsideration.  First, the amount of $18,900 included in the first row for Commonwealth disability services is for persons aged 4 - 6 (calculated at the rate of $6,300 per year for 3.0 years) is not relevant in this case given Ekam Maan is now 8 years old.  Second, the amount of $10,200 included in the second row and calculated by reference to Commonwealth disability services for persons aged 7 – 8 (calculated at the rate of $10,200 per annum for 2.0 years) is not accurate as Ekam Maan is already 8 years of age and so it would be appropriate to estimate the cost by reference to the fact that in 3 months he will be 9 years of age.  Accordingly, the cost of Commonwealth disability services should be $1,275.  Similarly, the amount of $135,660 included in the third row representing Special education services from age 7 (calculated at the rate of $19,380 per year for 7.0 years) is not accurate given Ekam Maan’s current age.  It appears evident to the Tribunal that the costing in respect of Special education services should be $19,380 per year for the remaining 5.25 years, being a total of $102,714. 

9. 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)
   
   

42.      1	43.      Commonwealth disability services - $6,300.00 x 2.0 Years.  Age 4 – 6. Therefore, no longer applicable as Ekam Maan is now 8 years of age	$0
2	Commonwealth disability services - $5,100.00 x 2.0 Years.  Age 7 – 8. It is 3 months before Ekam Maan’s 9th birthday on 11/02/2024. Therefore, there are 0.25 years remaining	$1,275
3	Special education services - $19,380.00 x 7.0 Years. From age 7. It is 3 months before Ekam Maan’s 9th birthday on 11/02/2024. Therefore, there are 5.25 years remaining	$101,745
Total	$103,020

1. 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. 

2. 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

3. 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.

4. 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.”…

5. Further, Paediatrician Dr Pankaj Garg of Darcy Road Specialists in his letter of 30 August 2023 confirms Ekam suffers from mild intellectual disability and autism spectrum disorder.  He states:

   “Ekam is currently attending Kemps Creek School in a support class.  I'm quite impressed with how much improvement he has made in his social communication and understanding of day-to-day things.  He is now able to point a pictures, label them and also use two-to-three-word combinations to express his needs.  He was able to pick up on social cues and his eye contact has improved quite significantly than in the past. His joint attention and working with other people have also improved.  He is currently attending Kemps Creek School and the report from the school is also very positive.

   There are no major challenging behaviors (sic).  He does not have any self-injurious behaviors or any absconding behaviors.  I think with very little amount of support, Ekam has made remarkable gains in social interaction, communication and his daily living skills.  He is now fully independent in his toilet training and he can dress undress himself.  He can also wear his shoes and socks.  He requires very little prompting to maintain his day-to-day activities.  I think the parents have done a remarkable job despite the challenges of limitations in their accessing supports. I wish Ekam and parents all the best in the future.”.

6. Sarah Prestipino, Speech Pathologist at Blacktown Speech Pathology states in her letter of 30 August 2023 that therapy provided by her has focused on Ekam Maan’s understanding of basic concepts, following instructions, understanding and answering ’wh’ questions as well is categorising objects.  She adds that:

   “Ekam has made pleasing progress in all of the above areas. He continues to show great improvements in his social skills and in his ability to use verbal communication.  He currently is not using an Augmentative and Alternative Communication (AAC) device to communicate his wants and needs.  

   He is now able to use 2- 3 word sentences and makes relevant comments during play.  His receptive language has made notable improvements since beginning therapy (since February 2020).  He is able to follow everyday functional directions and his ability to answer ‘wh’ questions is improving vastly. Throughout the course of his therapy, Ekam is also able to attend to tasks for a longer period of time and has become more compliant during his sessions.”

   As noted above at para [11(2)(c)] multiple invoices have been provided confirming Ekam Maan has been attending regular speech therapy sessions with Ms Prestipino.  Evidence provided confirms that all of these invoices have been paid for by Mr Singh and Mrs Kour.    

7. Further, the Tribunal has considered letters from Kemps Creek Public School where Ekam Maan and his twin brother attend regular mainstream classes.  Ekam Maan also attends the Support Unit (Autism class).  Kemps Creek Public School’s Principal Carly Sheridan and its Assistant Principal Support Classroom Teacher Tracie Gough state in their signed letter dated 14 September 2023 lodged after the hearing that:

   This letter is regarding Ekam Maan, a student at Kemps Creek Public School.  He is currently in our Support Unit in an Autism Class.  The Support Unit caters to his needs with small class sizes and specialist teachers and increased one on one interaction.  Ekam’s current class has 6 students in Years 3–6.  The Support Unit is part of a larger mainstream school; however, the whole school activities are inclusive to include the students within the Support Unit.  This includes integration of students into mainstream classes to complete activities with their stage-based peers.

   Ekam is a quiet and friendly student who is well-liked by his peers.  He is working on building his confidence when socialising with others.  Ekam’s confidence in the classroom has increased over time due to the smaller class size that caters to his sensory needs.

   Ekam is well-behaved and consistently adheres to the school expectations of being a safe, respectful learner.  He does not abscond from class and during playtime, he stays within the school grounds, enjoying playing with the mainstream students.  His attendance is currently at 94%, this is helping improve his learning as he is not often away.

   When communicating, Ekam is improving his eye contact and attention skills.  His verbal communication skills have increased significantly as he is building his confidence with his speech.  He is starting to join into class discussions when prompted.  Ekam is unable to comprehend complex instructions as he requires simple one step instructions to follow.  Ekam completes private speech therapy lessons, and these lessons are contributing to his improved speech strategies. 

   Ekam’s learning has improved by completing daily rotations in literacy and numeracy.  He is reading both at school and at home.  Ekam uses a visual timetable and likes to stick to a strict routine.  He has short-term goals to meet, to get to complete further long-term goals.  Ekam is working below stage level in Literacy and Numeracy and he engages in learning programs that are heavily scaffolded and requires one-on-one support to actively engage in his learning which he receives by being in the Support Unit class.  He enjoys one-on-one assistance with both of the classroom teacher and support teacher. 

8. In summary, on the information before the Tribunal, Ekam Maan and his twin brother Fateh Singh Maan were born in Australia on 11 February 2015.  They were born preterm at 31 weeks via emergency LSCS (that is, lower uterine caesarean section) at Royal Prince Alfred Hospital in Sydney.  Whilst his twin brother has no health issues, Ekam Maan was diagnosed with Autism Spectrum Disorder at around 4 years of age.  Since his initial diagnosis at Level 2, he has undertaken regular private speech therapy classes with a Speech Pathologist at the cost of his parents and has also had the benefit of attending Kemp Creek Public School in a small Support Unit designed to assist students who are challenged by some learning difficulties.  

9. The Tribunal accepts that Ekam Maan’s condition has improved significantly from his Mild Cognitive Impairment with Autism Spectrum Disorder Level 2 and that he has now reached Level 1 with mild language delay.  

   Capacity to mitigate the potential costs to the community

10. Evidence provided confirms that both Mr Singh and Mrs Kour are currently employed.  Recent payslips confirm Mr Singh’s salary is $67,080 per annum plus superannuation.  Mrs Kour works on a casual basis with Empowering Disability Partners and her hourly rate of pay ranges from $31.64 during weekdays to $56.88 on Sundays. 

11. The representative has also provided evidence of significant savings in the respective [Bank 1] accounts for Mr Singh and Mrs Kour.  [Bank 1] Bank Statements summaries submitted to the Tribunal prior to the hearing confirm each of Mr Singh and Mrs Kour have current balances of just over of $[amount]. 

1. In addition, evidence was provided of bank transfers totalling $68,000 from family and friends as set out above at para [11(6)(d)].  Each of the transferors has also provided a Statutory Declaration confirming their ongoing willingness to continue contributing funds, and time, to facilitate the applicants remaining in Australia.  Mr Singh and Mrs Kour told the Tribunal during the hearing that they have never asked family or friends for money before as they have always been able to fund their son’s weekly Speech Pathology sessions: but, once their family and friends became aware of the Tribunal’s pending hearing, they chose to transfer funds to confirm their ongoing support and engagement of the applicants and their desire to have the family remain in Australia. 

2. Further, evidence has been provided of the value of assets including real estate owned by both Mr Singh and his parents in India which is in excess of AUD $1 million. 

3. During the hearing Mrs Kour’s brother, Sukhdeep Singh Athwal, confirmed that he originally lived in New Zealand and has New Zealand citizenship.  He now has Australian citizenship as well.  When his sister Mrs Kour moved to Australia and then had her twins, Mr Athwal said he and his family decided to relocate from New Zealand to Sydney.  As set out in his Statutory Declaration lodged with the Tribunal prior to the hearing and confirmed by Mr Athwal at the hearing, the siblings each have young children about the same age and they want their kids to grow up with each other and have a great bond, like the bond that he has with his sister.  Mr Athwal added that, since he and Mrs Kour are now both living in Sydney, it has been easy for their parents to come from India and spend time with their grandchildren, help look after them and engage with them all.  He confirmed that he has told both his sister and his brother-in-law Mr Singh that he has savings put aside for continued treatment for Ekam Maan should that be necessary. 

4. The Tribunal also notes the Statutory Declarations from friends referred to above at para [11(7)] confirming their ongoing support to facilitate funds, should the need arise to ensure ongoing medical treatment for Ekam Maan, as well as the evidence of funds totalling $68,000 from Iqubal Singh Brar, Mr Athwal, Lakhvinder Singh Brar, Sukvinder Bhullar , Gurvinder Singh and Verinder Singh Saggu.  Mr Athwal explains in his Statutory Declaration that, consistent with the religion of Sikhism, family and friends are all expected to help anyone in need.

5. The Tribunal places weight on evidence provided regarding the capacity of Mrs Kour and her husband Mr Singh, should the need arise, to mitigate the potential costs of ongoing treatment for Ekam Maan by accessing personal savings and assets as well as support from family, friends and the Sikh community in Sydney.  It notes that they have not had to access such support to date.   

   Occupational skills of family members

6. Ekam Maan’s parents have lived in Australia since May 2013.  After undertaking a Bachelor of Arts at the University of Bikaner in India and then a Diploma in General Nursing and Midwifery at the University of Jaipur, Mrs Kour came to Australia to study a Master of Nursing at the University of Wollongong.  She completed a Certificate III in Individual Support (Ageing and Disability) at CUBE Institute in November 2021 and currently works with Empowering Disability Partners as a Disability Care Worker.  Relevantly, Mrs Kour’s occupation is within Australia’s Top 20 occupations in demand.[3] 

   [3] New Data on Top 20 Occupations in Demand | Ministers' Media Centre (dewr.gov.au); JSA report template (jobsandskills.gov.au); The 20 most in-demand jobs in Australia (9news.com.au)

7. Mr Singh was sponsored by the Company on a Subclass 457 visa in the role of Vegetable Grower ANZSCO 121221.  The occupation of Vegetable Grower was reclassified in November 2022 in ANZSCO’s Version 3 as ANZSCO 121616, part of Unit Group 1216 Horticultural Crop Growers. 

8. The Company’s director David Refalo provided evidence at the hearing in which he echoed information set out in his Statutory Declaration submitted prior to the hearing.  He told the Tribunal that Mr Singh has made a significant contribution to his business.  Mr Refalo added Mr Singh is a qualified, knowledgeable and diligent worker who has brought his in-depth knowledge of farming to the Company’s business from his farming background in India.  He said that the business he and his wife run has seen staffing numbers grow from 3 to now 7 employees since Mr Singh joined the business and, in addition, he has had to double staff numbers as a wholesaler at the Sydney’s Flemington markets. 

9. Mr Refalo told the Tribunal that, if Mr Singh is forced to leave, his business would suffer dramatically because it is extremely difficult to find vegetable growers with his level of experience and qualifications.  The Tribunal acknowledged media reports and various Commonwealth Government agency reports regarding widespread skill shortages across the agricultural industry, which is largely driving the Pacific Australia Labour Mobility Scheme.[4]  After the hearing, the representative provided probative evidence of the Company’s payroll confirming its recent staff increases as well as the tripling of revenue since 2016 when Mr Singh joined the business.

   [4] Agricultural Workforce - DAFF (agriculture.gov.au); Supporting the agriculture sector and its workforce; Agribusiness Held Back by Skills Shortages; Pacific Labour Mobility | Australian Government Department of Foreign Affairs and Trade (dfat.gov.au)

10. The Tribunal accepts that both Mr Singh and Mrs Kour have contributed significantly to their respective employers’ businesses.  It also accepts, based on the documentation provided, that they have paid income tax on their respective incomes earned in Australia and will continue to do so.  Accordingly, the Tribunal accepts that they will continue to contribute to the reserve used to fund services provided by the government to the Australian community, including health care services. 

11. Evidence overall confirms that both Mr Singh and Mrs Kour have desirable skills, qualification and experience.  As the primary visa applicant for a Subclass 186 visa sponsored by the Company, the Tribunal accepts that Mr Singh performs his duties as a Vegetable Grower ANZSCO 121221 in a manner that is greatly appreciated by his employer Mr Refalo.  It also accepts that Mrs Kour has been working as a Disability Carer Worker, an occupation which is in high demand in Australia.  These factors weigh favourably in the Tribunal’s exercise of its discretion. 

    Any other relevant factors

12. The Tribunal also acknowledges the letter from Mandiner Singh Banwait the Secretary of the Sri Guru Singh Sabha (Sikh Association of Sydney).  It is evident that Mr Singh and Mrs Kour have a strong sense of community and have demonstrated this through their involvement in the Sikh community in Sydney.  Mandiner Singh Banwait has provided a signed letter confirming that, over the past 6 years, Mr Singh and his family have been frequent visitors to the Sikh Association of Sydney’s premises where they have undertaken volunteer tasks on Saturdays and Sundays including serving lunch and providing kitchen equipment for students attending a Punjabi school and library where they to undertake classes in both Punjabi and English.  The Sikh Association also provides a library open to the public where visitors can borrow a variety of religious materials in Punjabi and English. 

13. Mr Banwait confirms that Mr Singh and his family have a strong sense of belonging to the Sydney Sikh community and he opines that they are a fantastic asset to the wider Australian community.

14. The Tribunal accepts the valued role of multicultural organisation such as the Sikh Association and the contribution that its volunteers make to enable such organisations to continue operations for the benefit not only of members but also the wider Australian public. 

    Conclusion

15. It is evident to the Tribunal that, while the costs assessed for Ekam Maan are significant, they have nonetheless been reduced from the time of the First MOC Opinion when they were assessed as $293,500.  On the material before it, the Tribunal accepts that the actual costs to the Australian community of Ekam Maan’s condition, given his current age, are likely to be considerably less than those assessed by the RMOC in the Third MOC Opinion for the reasons outlined above.

16. Further, the Tribunal notes the extensive speech pathology sessions that Mr Singh and Mrs Kour have facilitated for their son Ekam.  They have a useful benchmark in his twin brother Fateh Maan in terms of assessing Ekam’s progress, both at the Kemps Creek Public School and with the Speech Pathologist.  Both Mr Singh and Mrs Kour have affirmed their intention to continue to facilitate weekly speech pathology sessions on an ongoing basis for Ekam Maan.  The significant progress made since commencing his 30 minute therapy sessions in February 2020 (at the cost of Mr Singh and Mrs Kour) has been recognised by Paediatricians Dr Duraisamy and Dr Garg, the Speech Pathologist Ms Prestipino and both the Principal as well as the Support Unit teacher at Kemp Creek Public School. 

17. In addition, the Tribunal acknowledges both Mr Singh and Mrs Kour are employed in occupations which are in recognised shortage in Australia.  Apart from funds derived from their respective employment, Mr Singh and Mrs Kour have access to assets in India owned both by Mr Singh and his parents as well as liquid funds available in bank accounts in Australia should the need arise.  Furthermore, they have received assurances from multiple friends and family regarding their ongoing ability to continue to make funds available to assist with Ekam Maan’s ongoing treatment, should the need arise.  It is also evident to the Tribunal that the applicants have numerous strong and supportive relationships within the Australian Sikh community.  The Tribunal has also taken into consideration the applicants’ contribution to the Australian community through their involvement with the Sikh Association of Sydney.

18. For these reasons, the Tribunal is satisfied that the granting of the visas to the applicants would be unlikely to result in undue cost or undue prejudice within the terms of PIC 4007(2)(b) of Schedule 4 to the Regulations. Therefore, PIC 4007(1)(c) may be waived subject to the applicants satisfying all other requirements for the visas.

19. 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:

20. 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.

    Katie Malyon

    
    Member

    ATTACHMENT– The Migration Regulations 1994

    Schedule 2

    …

    Part 186 - Employer Nomination Scheme

    …

    186.224(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 186 visa satisfies public interest criterion 4007.

    (3)     Each member of the family unit of the applicant who is not an applicant for a Subclass 186 visa satisfies public interest criterion 4007 unless it would be unreasonable to require the member to undergo assessment in relation to the criterion. 

    Schedule 4 — Public Interest Criteria (PIC)

    …

    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.

    oOOo