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

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).
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.
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.
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.
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.
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.
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…

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.

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Details

Case: [2020] AATA 5654
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application by Mr Jithu Mathew for a Regional Employer Nomination (Permanent) visa. The central dispute concerned whether Mr Mathew met Public Interest Criterion (PIC) 4007, which requires visa applicants to be free from certain diseases or conditions that could pose a threat to public health or result in significant costs to the Australian community.

The Tribunal was required to determine whether Mr Mathew was free from tuberculosis, a disease or condition that could be a threat to public health or a danger to the Australian community, and a disease or condition that would likely require health care or community services resulting in significant cost or prejudice to Australian citizens or permanent residents. The Tribunal also had to consider whether a Medical Officer of the Commonwealth (MOC) opinion was required and, if so, whether it had been correctly applied.

The Tribunal reasoned that, as Mr Mathew had applied for a permanent visa, the exemption in PIC 4007(1B) did not apply. It found that a MOC opinion was required under regulation 2.25A of the Migration Regulations 1994. The Tribunal noted that while a MOC opinion is generally taken as correct, it must first be satisfied that the MOC applied the correct legal test, referencing *Robinson v MIMIA* (2005) 148 FCR 182 and *Ramlu v MIMIA* [2005] FMCA 1735. The Tribunal concluded that the matter should be remitted for reconsideration.

The Tribunal remitted the application for Regional Employer Nomination (Permanent) visas for reconsideration, directing that the first named applicant, Mr Mathew, met PIC 4007(2)(b) for the purposes of clause 187.224(2) of Schedule 2 to the Regulations. The Tribunal also noted it did not have jurisdiction in respect of the fourth named applicant.

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 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))? 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. 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. 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 the applicants in this case have applied for permanent visas, the exemption provision in PIC 4007(1B) does not apply. 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? 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.

Decision

Reasons for decision

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 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. R. SkarosSenior MemberATTACHMENTMigration Regulations 1994Schedule 44007(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.

Ratio Decidendi

Legal Principle Established

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