Mathew (Migration)

[2020] AATA 5654

Mathew (Migration) [2020] AATA 5654 (24 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Biny Mathew
Mr Mammen Mathai
Miss Varsha Sara Mathew
Mr Jithu Mathew

CASE NUMBER:  1715222

DIBP REFERENCE(S):  BCC2015/3862627 BCC2017/2919406

MEMBER:R. Skaros

DATE:24 November 2020

PLACE OF DECISION:  Sydney

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(2)(b) for the purposes of cl.187.224(2) of Schedule 2 to the Regulations.

The Tribunal does not have jurisdiction in respect of the fourth named applicant.

Statement made on 24 November 2020 at 9:19am

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) visa – Subclass 187 Regional Sponsored Migration Scheme – health criteria for dependent child – dependent child outside migration zone – current Review Medical Officer of the Commonwealth opinion – compassionate or compelling circumstances to waive criteria – clinical Nursing experience in Emergency Department in regional Australia – contribution to the community – reduced assessment cost for health care and community services – decision under review remitted          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 187.224; Schedule 4, Public Interest Criterion 4007

CASES

Bui v MIMA (1999) 85 FCR 134
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 10 July 2017 to refuse to grant the applicants Regional Employer Nomination (Permanent) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 14 December 2015. The delegate refused to grant the visas on the basis that the first named applicant (Mrs Biny Mathew) did not satisfy cl.187.224(2) 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 by a member of her family unit, being her son Mr Jithu Mathew, who is also an applicant for the visa.

3. The Tribunal notes that the fourth named applicant, Mr Jithu Mathew, was not in the migration zone at the time of the review application, the Tribunal therefore does not have jurisdiction in relation to him. This, however, does not affect the Tribunal’s jurisdiction to determine the issue in the review, which relates to whether Mr Jithu Mathew satisfies the health criteria.

4. The applicants provided supporting documents with the application for review, however, by the time the matter was constituted to the present Tribunal, much of that information was not current. Accordingly, the Tribunal invited Mrs Mathew to obtain a current medical assessment for Mr Jithu Mathew.

5. Mrs Mathew consented to obtaining a new medical assessment and provided current medical reports in relation to her son’s condition. These reports were provided to the Review Medical Officer of the Commonwealth (RMOC) when requesting the medical assessment.

6. On 21 August 2020, the Tribunal received the RMOC opinion indicating that Mr Jithu Mathew, who is 18 years of age and has a mild intellectual impairment, does not meet the health requirement in PIC 4007(1)(c)(ii)(A). Information regarding the health waiver, including the likely cost to the Australian community, was also provided to the Tribunal.

7. The applicants were invited to comment on the RMOC opinion. They were also invited to provide information in support of the waiver. In response, the Tribunal received a submission from the representative and a large volume of supporting documents pertaining to Mrs Mathew and Mr Mathai’s employment in Australia, their financial circumstances, their contribution to the community and the family’s close ties in Australia. 

8. Mrs Mathew, Mr Mathai and their daughter Varsha appeared before the Tribunal on 18 November 2020 to give evidence and present arguments.

9. The Tribunal notes that the Department’s file included a non-disclosure certificate issued under s.375A of the Act. The certificate, which was in respect of folios 16-36, 43-54 and 59-70 of the Department’s file, states that disclosure of information contained in those folios would be contrary to public interest. The Tribunal has formed the view that the certificate is not valid as it does not provide a valid public interest reason for the non-disclosure. The Tribunal also notes that the information covered by the certificate, which includes internal Departmental communications and a preliminary assessment of the case and considerations of the waiver, relates to a MOC opinion that is no longer current. The Tribunal now has before it a current opinion from the RMOC and current information relevant to the exercise of the waiver.

10. The applicants were represented in relation to the review by their registered migration agent. The representative attended the hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in this review is whether Mr Jithu Mathew (Jithu) meets Public Interest Criterion (PIC) 4007 as required by the criteria for the grant of the visa. 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. In this case, Jithu has mild intellectual impairment associated with Down syndrome.

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

13. Clauses 4007(1)(a) and (b) require Jithu, as a member of the applicant’s family unit, to be free from tuberculosis and 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.

14. Clause 4007(1)(c) requires Jithu to 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 applicants in this case have applied for permanent visas, 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. The Tribunal has had regard to the RMOC opinion dated 21 August 2020 and is satisfied that it correctly identifies the medical condition, the level or severity of the condition and that the RMOC has applied the statutory criteria by reference to an hypothetical person suffering at the same level or severity of the medical condition.  Accordingly, the Tribunal is satisfied that the RMOC has applied the correct test and takes the RMOC opinion as correct.

20. The most recent RMOC opinion, dated 21 August 2020, states that Jithu would likely require special education services and that the provision of those services would likely result in a significant cost to the Australian community. On this basis, the RMOC concluded that Jithu does not meet the health requirement of PIC 4007(1)(c)(ii)(A).

21. Accordingly, based on the opinion of the MOC, the applicant does not satisfy PIC 4007(1)(c).

    Should the requirements of PIC4007(1)(c) be waived?

22. 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: 4007(2).

23. The evaluative judgment of whether the cost to the Australian community or prejudice to others is ‘undue’ may import considerations of compassionate or other circumstances: Bui v MIMA (1999) 85 FCR 134 (‘Bui’) 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. And within that discretion, compassionate circumstances or compelling circumstances may be relevant: Bui at 47. Departmental policy guidance on the exercise of this discretion is contained in the Procedures Advice Manual (‘PAM3’). Broadly speaking, these relate to: family links in Australia and the impact on family members; occupational skills of the applicant or family members; assets or factors that may mitigate the costs or prejudice access to care or services involved; available support from family or community groups; potential contribution to Australia by the applicant or family members; the immigration history of the applicant; other compelling and compassionate circumstances including location of the applicant and family members; and any other relevant factors.

24. The Tribunal has before it the following supporting material:

    ·Letter of support dated 16 November 2020 from Jeanette Berthelsen, Clinical Nurse Manager at Alice Springs Hospital and Mrs Mathew’s supervisor, in which she states that she will be offering Mrs Mathew a permanent position and that Alice Springs struggle to fill vacancies with a 9 FTE deficit at present. She states that Mrs Mathew is a senior clinician in the Emergency Department and that ongoing employment of her will benefit the Department and Alice Springs population.

    ·Letter of support dated 12 November 2020 from Ms Junitta Richards, colleague and friend of Mrs Mathew for the last 7 years. She states that Mrs Mathew has been a Senior Nurse in the Emergency Department for over 7 years and is kind-hearted, hardworking and professional. She states that Mrs Mathew is admired by colleagues for her work ethic and dedication to the community of Alice Springs.

    ·A Statutory declaration dated 16 November 2020 from Mr Manoj, who is a colleague and friend of Mr Mathai, in which he confirms that Mr Mathai has worked as a Patient Care Assistant at the Australian Regional Remote Community Services, which is a dementia residential aged care centre for Indigenous persons. He states that Mrs Mathew and Mr Mathai have contributed to the local community of Alice Springs by assisting with natural disasters, working with elderly Indigenous communities and through their membership of the local church.  

    ·Documents confirming Mrs Mathew’s employment, annual base salary, tax assessment notices, superannuation documents and bank statements for the last four financial years and bank statements.

    ·Employment documents, tax assessment notices, superannuation documents and bank statements for Mr Mathai.

    ·Valuation certificates and an accountant’s letter regarding the value of overseas properties owned by Mr Mathai.

    ·Statutory declaration from Mr Bijo Mathew, Mrs Mathew’s brother, stating that he borrowed funds from the applicants for the purchase of a property which he will repay by November 2021.

    ·School report cards, academic achievement awards and other records of high achievement for Miss Varsha Mathew.  

    ·Letters of support from Marguerite Baptiste-Rooke, coordinator of Multicultural Community Services of Central Australia Inc. stating that the applicants have been involved in various projects and activities in the community.

    ·Letter of support from Sr. Vincy Pullen MC, Member of Missionaries of Charity, who states that the applicants are held in high esteem and will make a unique contribution to the welfare of Australian Society.

    ·Letters of support from Prakash Brayan Menezes of OLSH Catholic church indicating that the applicants are members of the Church who have contributed to the welfare of the town.

    ·Letter of support from Fr. Bobby Thomas of St Gregorios Jacobite Syrian Orthodox Church in which he states that the applicants participate regularly in church services and that Mr Mathai is an excellent role model.

    ·Letter of support from John Paul Sirus, President of the Alice Springs Indian Community Inc. in which he states that the applicants are active members of the community and are an asset to the wider Alice Springs community.

    ·Letter of support from Sunich Kumar Kochuparambil Sasi, Secretary of the Alice Springs Indian Community Inc. in which he states that the applicants are genuine and hardworking individuals who will be an asset to the Alice Springs community.

    ·Letter of support from Rajesh Raju, Secretary of the Alice Springs Malayalee Association Inc., in which he states that he has known the applicants for some time and that they are active and contributing members of the community.

    ·Evidence of private health insurance for all the applicants. 

    ·Occupational therapy evaluation summary dated 23 July 2020 from Jewel Autism and Child Development Centre which provides summary of Jithu’s birth, education and an evaluation of his activities of daily living, physical and cognitive ability, psychosocial and communication demands as well as interpersonal skills. It indicates that with proper guidance and training Jithu can undertake a basic job.

    ·High School certificate for Jithu Mathew for Grades 7 and 8 indicating that Jithu attends a school which is not specialised in teaching children with learning disabilities and that Jithu is in class with 27 children and does not require special attention.

    ·Letter from Dr Santha Abraham, Associate Professor and Consultant Clinical Psychologist, which provides a brief summary of Jithu’s learning abilities, including speech, walking and schooling.

    ·Letter from Dr Chelakkara who states Jithu does not require any special learning requirements and is independent in all his daily activities.

25. At the hearing, Mrs Mathew gave evidence that she is a qualified registered nurse. She arrived in Australia in March 2013 as the holder of a student visa to complete higher studies in nursing. In September 2013, she was offered employment with, and sponsored for a work visa by, Central Australia Health Services. She has been employed as a Registered Nurse in Alice Springs over the last seven years. Mrs Mathew gave evidence that she has over 20 years of experience as an emergency registered nurse and currently occupies the position of Senior Registered Nurse with NT Health. She is a critical care Nurse and is also a member of the Covid-19 team at Alice Springs Hospital. She is also a clinical coach for new graduate students training at the hospital.

26. Mr Mathai gave evidence that he works in aged care and that most of the elderly people he cares for are Indigenous. Miss Varsha Mathew is in year 10, she gave evidence that she enjoys school in Australia. She is a high achieving student and hopes to undertake tertiary studies in the medical field. She stated that if she has to return to India it would be very difficult for her as her speaking, reading and writing skills of the local dialect is quite basic.

27. Mrs Mathew informed the Tribunal that she has a brother in Australia who lives in Queensland. She also has a brother in India who is married with children. She stated that Jithu has never been to Australia and is being cared for by his maternal grandmother in India.  She gave evidence that Jithu’s grandmother is 75 years of age, that her health was deteriorating and that it was becoming difficult for her to continue to care for Jithu. Mrs Mathew and Mr Mathai gave evidence that they want to reunite the family in Australia, where they have a large support network, including their church community, Indian community of Alice Springs and the local community. They speak to Jithu several times a day and travel to India to visit him, but they have not been able to travel since last year due to the travel restrictions. Mrs Mathew indicated that Jithu regularly asks them about when he can come and live with them.

28. Mrs Mathew and Mr Mathai gave evidence that Jithu’s presence in Australia would not affect their ability to continue to work full time in the health and aged care sectors in Alice Springs. Mrs Mathew stated that Jithu is independent, is okay with his daily living and would be able to do a basic job.

29. Mrs Mathew and Mr Mathai gave evidence about their financial circumstances, including their income levels, superannuation, savings and ownership of assets which were entirely consistent with the documentary evidence before the Tribunal.

30. In determining whether the health requirement should be waived, Tribunal has carefully considered all of the evidence before it as follows.

31. In this case, the initial assessment of costs to the Australian community for the provision of health care or community services was estimated at $2.9 million.  A change in the Department’s policy regarding the assessment of costs resulted in a far more favourable assessment for Jithu. The current health waiver assessment information received from the RMOC estimates the total costs for the provision of special education for Jithu’s condition of mild intellectual impairment associated with Down syndrome to be $78,420. This is significantly less than the initial assessment.

32. While the RMOC found the estimated cost to the Australian community to be significant, the RMOC also formed the view, as provided in the health waiver information, that the granting of the visa would not prejudice the access of an Australian citizen or permanent resident to health care or community services.

33. While the Tribunal acknowledges that the estimated cost was found to be significant, the Tribunal also considers that the cost of $78,420 can be mitigated by Mrs Mathew and Mr Mathai, either through direct payment for services provided to Jithu or indirectly through taxation payments where these services are government funded.

34. The Tribunal accepts that Mrs Mathew, who has undertaken post-graduate nursing studies in Australia, has maintained full time employment as a Registered Nurse at the Emergency Department of Alice Springs Hospital. Her occupation, Registered Nurse (Critical Care and Emergency), is on the Priority Migration Skilled Occupation List (PMSOL). The Tribunal accepts, as indicated by the evidence, that Mrs Mathew is a highly skilled and experienced critical care nurse whose skills are in demand in the Northern Territory. It is likely that Mrs Mathew will maintain employment in the health care sector until retirement.

1. The evidence before the Tribunal indicates that Mrs Mathew has a base salary of $92,508. She is also entitled to overtime and penalty payments. The Tribunal accepts, as submitted by the representative that Mrs Mathew’s taxable income for the last four financial years totalled $325,945 and that her tax contributions for the corresponding periods totalled $105,874.45. It was submitted that Mrs Mathews, who is 46 years of age and has had a stable work history, is likely to work until the retirement age of 67, and that her total tax contributions over that time, based on her current base salary, would be in excess of $560,000.

2. The Tribunal also accepts on the evidence before it that Mr Mathai is currently employed full time as a Carer in Alice Springs, including at high care facilities for Indigenous persons. Mr Mathai’s taxable income for the last four financial years totalled $106,699 and his tax contribution was $11,060 for the corresponding period. The Tribunal accepts on the evidence before it, as calculated by the representative, that based on Mr Mathai’s age and current earnings, that his tax contributions, until the age of retirement, would be approximately $176,000.

3. Mrs Mathew and Mr Mathai confirmed at the hearing that they would both continue to work on a full-time basis in their positions and the Tribunal is satisfied on the totality of the evidence before it that their tax contributions would mitigate the cost of services provided to Jithu.    

4. The Tribunal also notes that Mrs Mathew and Mr Mathai have substantial savings and assets which they can draw on to directly fund any specialist or additional services that Jithu may require.

5. The financial circumstances of Mrs Matthew and Mr Mathai weigh strongly in favour of waiving the health requirement.

6. In addition to their contribution to the community through their employment in the healthcare sector, the Tribunal is also satisfied that the applicants have contributed to their local community in Alice Springs over the last seven years. Numerous letters of support have been provided from the applicants’ colleagues and members of the Alice Springs community, including community leaders, indicating that Mrs Mathew, Mr Mathai and Varsha are highly valued members of the local community. The evidence before the Tribunal indicates that the applicants have integrated well in Alice Springs, that they have positively contributed to that community through their involvement and that they have a strong support network in Alice Springs.  

7. The Tribunal also considers that there are highly compelling and compassionate circumstances in this case. The Tribunal accepts that if the visa is refused and Mrs Mathew, Mr Mathai and Varsha have to return to India that this would cause them considerable financial, psychological and emotional hardship. For Mrs Mathew and Mr Mathai, it would mean the loss of their well-paid positions and the loss of a strong network of friends and work colleagues. For Varsha, whom the Tribunal accepts is a high achieving student, it would mean having to adapt to a new education system, including learning a new language and having to re-establish a new network of friends.

8. The Tribunal has also considered the family’s strong wish to reunite in Australia where they are employed and have a strong community support network. The Tribunal accepts that Jithu’s current circumstances in India cannot be maintained in the long term as his maternal grandmother, who is currently caring for him, is aging and has health issues of her own. The Tribunal also accepts that the prolonged separation is having a detrimental affect on Jithu’s mental health and that this is adversely impacting the whole family.

9. The Tribunal has also considered the education, medical and psychological reports relating to Jithu’s condition and accepts that Jithu can perform many tasks associated with his daily living and that with some guidance he may be able to undertake basic work.

10. The Tribunal also considers that if Mrs Mathew and Mr Mathai could not continue to work in Australia, it would be a loss for the health care sector in Alice Springs. The Tribunal accepts that they have made a positive contribution to Indigenous health in regional Australia.

11. The Tribunal has carefully considered and weighed up all the relevant factors in this case. Considering the current MOC assessment, the applicants’ circumstances and their valuable contribution to the community, the Tribunal is satisfied that there would not be undue cost to the Australian community in areas of health care or community services, if the health requirement is waived.

12. For the above 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 PIC4007(2)(b). Therefore PIC 4007(1)(c) may be waived subject to the applicant satisfying all other requirements for the visa.

13. 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 visas.

    DECISION

14. 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(2)(b) for the purposes of cl.187.224(2) of Schedule 2 to the Regulations.

15. The Tribunal does not have jurisdiction in respect of the fourth named applicant.

    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.