Mohammed Abdul Sayeed (Migration)

[2023] AATA 1012

Mohammed Abdul Sayeed (Migration) [2023] AATA 1012 (19 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mohammed Abdul Sayeed

REPRESENTATIVE:  Mr Rupert Timms

CASE NUMBER:  1930770

HOME AFFAIRS REFERENCE(S):          BCC2018/1011514

COUNTRY OF REFERENCE:                   India

MEMBER:George Hallwood

DATE:19 April 2023

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for an Employer Nomination (Permanent) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 186 - Employer Nomination Scheme visa:

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

Statement made on 19 April 2023 at 4:16pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – health criteria – member of family unit – significant cost of health care or community services to one child – opinion of medical officer of commonwealth – power to waive requirement – applicant in Australia without family – child not an applicant to review and visa application finally determined – non-migrating family unit member – grant of visa to applicant not likely to result in undue cost to community – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 349(1)
Migration Regulations 1994 (Cth), r 2.25A; Schedule 2, cl 186.224; Schedule 4, PIC 4007

CASES
Bui v MIMA (1999) 85 FCR 134
Gella v MIBP [2018] FCCA 2647
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 a decision made by a delegate of the Minister for Home Affairs on 10 October 2019 to refuse to grant the applicant an Employer Nomination (Permanent) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 2 March 2018. The delegate refused to grant the visa as the applicant did not satisfy cl 186.224 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4007 of Schedule 4 to the Regulations was not met.

3. The applicant appeared before the Tribunal on 13 April 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu (India) and English languages.

4. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this review is whether the visa applicant 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.

7. The original application to which this review relates listed Mr Sayeed as the primary applicant and three members of his family as secondary applicants. The applicant in this case before the Tribunal, Mr Sayeed, was found not to meet the requirements of sub-regulation 186.224(2) on the basis that his son failed to satisfy public interest criterion 4007. The visa was refused on the basis that one of Mr Sayeed’s son did not meet the requirements of cl 4007(1)(c)(ii)(A) because a Medical Officer of the Commonwealth (MOC) had found that the provision of the health care or community services to one of his children would be likely to result in a significant cost to the Australian community in the areas of health care and community services.

8. The Tribunal notes that the son is not a visa applicant for the purposes of this review as his visa application has been finally determined.  

   Is it reasonable to require Mr Sayeed’s son to meet PIC 4007?

9. Clauses 4007(1)(a) and (b) require the applicant to be free from tuberculosis and free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community.

10. Clause 4007(1)(c) requires the applicant be free from a disease or condition which would be likely to require health care or community services or which would meet the medical criteria for provision of a community service during the specified period; and  provision of the health care or community services (regardless of whether it will actually be used in connection with the applicant) would be likely to: result in a significant cost to the Australian community in the areas of health care and community services; or prejudice access of an Australian citizen or permanent resident to health care or community services.

11. There is no evidence before the Tribunal that Mr Sayeed himself does not meet the health criteria.

12. A written submission from Mr Sayeed’s representative dated 6 April 2023 (the submission) put that in relation to sub-regulation 186.224(3) Mr Sayeed’s son should not be required to meet PIC 4007 as it is “unreasonable” for him to undergo assessment in relation to PIC 4007. The son is no longer a visa applicant in relation to the review. The submission continues stating that as Mr Sayeed has been in Australia for over seven years, alone without his family for almost all of that time, it is “unreasonable” now in the usual sense of this word to prevent him from continuing to be able to remain in Australia alone due to requiring a non-migrating child to undergo assessment in relation to this criterion.

13. In determining whether a person meets PIC 4007(1)(a), (b) or (c), reg 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.

14. Where the delegate has made a separate decision that the child does not meet PIC 4007 and therefore does not meet the criteria for grant, and review of that decision has not been sought, there is a question about whether the scope of the Tribunal’s review could extend to allow the Tribunal to consider waiver in relation to the child. The resolution depends on whether cl 186.224(2) or cl 186.224(3) is the applicable criterion in these circumstances.

15. Clause 186.224(2) provides that each member of the family unit (MOFU) of the applicant who is an applicant for a Subclass 186 visa satisfies PIC 4007. Clause 186.224(3) provides that each MOFU of the applicant who is not an applicant for a Subclass 186 visa satisfies PIC 4007. Because the criterion must be satisfied at the time of decision, and at present the child does not have a pending visa application for a Subclass 186 visa, it is the view of the Tribunal that the preferable interpretation is that the child is not an applicant, and cl 186.224(3) is applicable. As Mr Sayeed’s son’s visa application is ‘finally determined’, I do not consider that they could be ‘an applicant’ at the time of the Tribunal’s decision.

16. For these reasons the Tribunal is satisfied that it is appropriate to treat Mr Sayeed’s son as a non-migrating family unit member under cl 186.224(3).

17. The submission also puts to the Tribunal that despite the wording of sub-regulation 186.224(3), the whole of PIC 4007 only applies to a person who is an “applicant” and as Mr Sayeed’s son is not now an applicant, PIC 4007 therefore cannot be applied to the son.

18. The wording of sub-regulation 186.224(3) is clear that PIC 4007 applies, not only to an applicant, but also to members of the family unit of an applicant that is not an applicant. Further, reg 2.25A(1) relates to the determination of an applicant’s satisfaction of visa criteria and requires the Minister to seek a MOC opinion about whether a person (whether the applicant or another person) meets PIC 4007.

19. The Tribunal is satisfied that PIC 4007 has a broader application than only the person who is an applicant, but also to other persons including, and in this case Mr Sayeed’s son who is not an applicant.

20. Therefore, it is reasonable to require Mr Sayeed’s son to meet PIC 4007 requirements.

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

21. For the purpose of this application, “the applicant” being considered in relation to PIC 4007 refers to the particular person who needs to meet the requirement, which in this case is Mr Sayeed’s son.

22. There are two MOC opinions before the Tribunal, one dated 14 February 2019 and one dated 29 November 2022.

23. In both instances the Health Waiver Information states that Mr Sayeed’s son met the requirements of paragraphs 4007(1)(a) being free from tuberculosis, and 4007(1)(b) being free from a disease or condition that is, or may result in the son being, a threat to public health in Australia or a danger to the Australian community. In both instances the MOC also found that the granting of a visa to the son for the assessed period of stay would not be likely to prejudice access of an Australian citizen or permanent resident to health care and community services. It was found, however, that Mr Sayeed’s son was subject to a condition to which the provision of the health care or community services would be likely to     result in a significant cost to the Australian community in the areas of health care and community services.

24. 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.

25. The MOC report and Form 884 dated 29 November 2022 identifies the medical condition to which the public interest criterion has been applied as well as the level of the condition suffered and services that would be required. The Form 884 also refers to the period of a permanent stay in Australia. As the visa application before the Tribunal is for a permanent visa, the period of assessment meets 4007(1A) because it refers to the period for which the Minister intends to grant the visa.

26. The Tribunal finds that the MOC has applied the correct test in forming their opinion.

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

    Does the Tribunal have power to waive a decision where the subject is not an applicant?

28. As stated at paragraph 18 above, the Tribunal is satisfied that it is appropriate to treat Mr Sayeed’s son as a non-migrating family unit member under cl 186.224(3).

29. The Tribunal’s power to consider waiver is derived from that clause, so it does not matter that a review application was not lodged. The waiver can be considered in the manner discussed in Gella v MIBP [2018] FCCA 2647. That is, the Tribunal can first consider the probabilities of the child applying for another visa and, second, that they would be granted that visa.

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

30. 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).

31. 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. Department policy provides guidance on factors that may be relevant to this, including: the need for, and availability of, a live organ donor; an ability to access private health treatment; close family, social, emotional and community ties to Australia; the impact on any Australian citizen minor children; occupational skills of the applicant or family members; and the potential contribution to Australia by the applicant or family members.

32. Exercising the waiver in this case involves exercising a power in relation to a person who is not a review applicant. Section 349(1) of the Migration Act provides that the Tribunal may, for the purposes of a Part 5-reviewable decision, exercise all the powers and discretions that are conferred by the Act on the person who made the decision. The Part 5-reviewable decision in this case is the decision to refuse the primary applicant’s visa.

33. The submission provided in this matter offers a number of compassionate and other circumstances that may be considered in relation to this matter, however, the Tribunal does not consider this necessary.

34. At the hearing, Mr Sayeed, who the Tribunal considers is a witness of truth, told the Tribunal that he is not considering reapplying for a visa for his son at this stage as his son is studying at the moment. Mr Sayeed did indicate that he would like, one day, to reunite his family in Australia. The Tribunal notes that the MOC costings have reduced from $875,000 in 2019 to $470,178 in 2022. Mr Sayeed believes his son’s condition is improving and he is in mainstream schooling in India. The Tribunal finds that the probability of the son applying for a visa is very low, and therefore the granting of a visa to the applicant is unlikely to result in ‘undue cost’ to the Australian community.

35. As the Department is aware of the medical conditions affecting Mr Sayeed’s son, and there have been two MOC reports provided, the Tribunal is satisfied that Mr Sayeed’s son will not be automatically provided with a visa or to access to health care and community services in Australia even if he were to apply. Even if Mr Sayeed’s son was to apply for a visa, it is unlikely it would be granted given the health issues identified. This also supports that the granting of the visa to the present applicant is unlikely to result in undue costs. 

36. For these reasons, the Tribunal is satisfied that the granting of the visa 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.

    CONCLUDING PARAGRAPH

37. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for the visa.

    DECISION

38. The Tribunal remits the application for an Employer Nomination (Permanent) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 186 - Employer Nomination Scheme visa:

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

    George Hallwood

    
    

    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.