OCHOA (Migration) - [2019] AATA 2159

OCHOA (Migration) [2019] AATA 2159 (12 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr DARWIN ROY OCHOA
Ms RAQUEL CABERTO
Miss MARGRETH VIOLET NUSSH OCHOA
Mr ULRIK TYLER OCHOA
CASE NUMBER:  1817424
DIBP REFERENCE(S):  BCC2016/3203576
MEMBER:Alan McMurran
DATE:12 April 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) visas.
Statement made on 12 April 2019 at 1:07pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – health – adverse MOC opinion – extended time provision for further medical evidence – compassionate circumstances per Minister’s guidelines – Ministerial intervention requested – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 351, 359, 360, 362
Migration Regulations 1994, Schedule 2, r 2.25A, PIC 4005, cl 187.235
CASES
Islam v MIBP [2015] FCCA 2210
MIMA v Seligman (1999)85FCR115
Ramlu v MIMIA [2005] FMCA 1735
Robinson v Minister for Immigration and Indigenous Affairs [2005] FCA 1626

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of decisions made by a delegate of the Minister for Immigration on 14 June 2018 to refuse to grant the applicants Regional Employer Nomination (Permanent) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 27 September 2016. The delegate refused to grant the visa on the basis that the first named applicant (now referred to as the applicant) did not satisfy cl.187.235 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4005 of Schedule 4 to the Regulations was not met.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant is a citizen of the Philippines and is applying for a Regulation 187 visa for permanent residence in the Direct Entry stream. The applicant has included three family members in the application. The family members include the applicant’s son, Ulrik Tyler Ochoa (Ulrik), who is now 10 years old as at the date of decision.
It is a criterion of the Regulation 187.235 that each member of the family unit of the applicant, and the applicant, satisfies PIC 4005, which in turn requires that they are free from a disease or condition in relation to which the provision of the healthcare or community services likely, would result in a significant cost to the Australian community in the areas of health care and community services. The criterion applies to each member of the family unit of the applicant. Ulrik is a member of the family unit and must meet the criterion.
Ulrik has been diagnosed with a condition as set out below. The condition was subject to a report from a Medical Officer of the Commonwealth (MOC) on 1 December 2016. That report was relied upon by the delegate in the decision made by the Department to refuse to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading OCHOA (Migration)

Details

AGLC: OCHOA (Migration) [2019] AATA 2159
Case: [2019] AATA 2159
Decision Date: 12 April 2019

CaseChat Overview and Summary

This matter concerned an application for a Regional Employer Nomination (Permanent) visa (subclass 187) under the Direct Entry stream. The applicant sought review of a decision by the Migration Review Tribunal (the Tribunal) which affirmed the refusal of their visa application. The refusal was based on an adverse opinion from a Medical Officer of the Commonwealth (RMOC) concerning Public Interest Criterion (PIC) 4005.

The primary legal issue before the court was whether the Tribunal had correctly applied the law in considering the RMOC's opinion. Specifically, the court had to determine if the Tribunal was satisfied that the RMOC had applied the correct test in forming their opinion, which requires identifying the medical condition, its form and severity, and assessing it against the criteria for a hypothetical person with that condition. The court also considered whether the Tribunal erred in its handling of the applicant's responses and requests for extensions of time to address the RMOC's opinion.

The Tribunal was required to take the RMOC's opinion as correct under regulation 2.25A(3) of the Migration Regulations 1994, but only after being satisfied that the RMOC had applied the correct test. The applicant argued that the RMOC's report was invalid for various reasons, including failing to consider specific reports and statutory declarations, and that the finding of "moderately severe functional and learning impairment" was not justified. The Tribunal considered these submissions and ultimately found that while it had given consideration to the applicant's detailed responses, the RMOC's opinion, as it stood, led to the conclusion that the applicant did not meet PIC 4005.

As a result of its findings, the Tribunal determined that it was appropriate to refer the case to the Minister for consideration of discretionary intervention powers under section 351 of the Migration Act 1958. The Tribunal affirmed the decision not to grant the visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

On 18 February 2019, the Tribunal sent a letter to the applicant’s under section 359A. The letter attached a copy of the RMOC’s report dated 14 February 2019 and invited a response and/or comments to the information by 4 March 2019. The letter contained the sanction that “if we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act to appear before us to give evidence and present arguments.” (Emphasis appears in the Tribunal’s letter). The applicant did not respond to that letter by 4 March 2019. On 11 March 2019, the Tribunal sent an invitation to the applicant to appear at a hearing scheduled on 8 April 2019, and to which the applicant responded, first on 20 March 2019 and again on 22 March 2019, providing details of who would be in attendance for the hearing. The applicant however, as noted, had not responded to the Tribunal’s earlier letter under section 359A by the due date, and had not sought an extension of time or provided any reasons in support of an extension of time to respond to that letter. Under section 360(3) of the Act, if the applicant does not provide the information or response by the time requested (in this case by 4 March 2019), the applicant is then not entitled to appear before the Tribunal. On 28 March 2019 the Tribunal wrote to the applicant cancelling the proposed hearing on 8 April 2019. The Tribunal advised the applicant that the Tribunal would proceed to make a decision on the review based on the information presently available, being the RMOC’s most recent opinion of 14 February 2019. On 29 March 2019, the applicant wrote to the Tribunal and requested additional time to respond to the RMOC’s opinion of 14 February 2019. In their letter, the applicants complained that the RMOC had not had regard to the statutory declaration of Ulrik’s mother, or her observations. On 1 April 2019, the Tribunal agreed to provide additional time to the applicant and asked for a response to the RMOC opinion by 6 April 2019. On 5 April 2019, the Tribunal received the applicant’s detailed submissions and responses to the RMOC opinion of 14 February 2019, and in respect of which the Tribunal has given consideration and makes comments as outlined below.The RMOC Opinion The RMOC opinion, dated 14 February 2019, sets out in full as follows:“The applicant has been assessed against Public Interest Criterion (PIC) 4005 [see attached extract] for the period of a permanent stay in Australia.The applicant does not satisfy sub--subparagraph PIC 4005(1)(c)(ii)(A) in Schedule 4 to the Migration Regulations.The applicant is a 10-year-old person with:·Moderate autism spectrum disorder Form and severity of the applicant’s condition: the applicant has moderately severe functional and learning impairment associated with autism spectrum disorder, such that supported education and allied therapy intervention been required to improve his functioning and optimise his potential. Provision of services to a hypothetical person in Australia with the same condition as the applicant and at the same severity, would be likely to require community services including but not limited to special education, carer support and state disability services. This condition is likely to be Permanent.I consider that a hypothetical person with this disease or condition, at the same severity as the applicant, be likely to require healthcare or community services during the period specified above.The services would be likely to include:Special education servicesCommonwealth disability servicesState disability servicesProvision of these healthcare and/or community services would be likely to result in a significant cost to the Australian community in the areas of healthcare and/or community services.In preparing this opinion, I have had regard to the information available to date concerning the applicant, including, but not limited to the panel position examination, activities of daily living assessment and chart of early childhood development of 28 November 2016; and reports from Dr V Gupta (9 May 2014, 7 October 2914 (sic), and 25 May 2018), Dr B Lampropoulos (8 January 2015), Occupational Therapist Ms R Summerville (15 November 2016), Dr S Garg (16 October 2018), Dr J Somaiya (10 November 2018), psychologist G McShane (22 November 2018), Bidwill Public School principle (sic) Ms J Macky (29 November 2018), plus several attached certificates of achievementMedical Officer of the CommonwealthPosition Number: BUPA019”Is a MOC opinion required?

Decision

Reasons for decision

As a result, the Tribunal considers it appropriate to request that this case be brought to the attention of the Minister in order for him to consider whether it is appropriate to exercise discretionary intervention powers under section 351 of the Act.DECISION The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) visas.Alan McMurranMemberATTACHMENTMigration Regulations 1994Schedule 44005(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)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 (2); 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.(2)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.(3)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 (2) (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.

Ratio Decidendi

Legal Principle Established

On the evidence before the Tribunal, a MOC opinion is required. The Tribunal must take the MOC opinion as correct[5], but must first be satisfied the MOC has applied the correct test in forming the opinion: Robinson’s case and Ramlu v MIMIA [2005] FMCA 1735 (Ramlu’s case). 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. [5] Reg 2.25A (3):” the Minister is to take the opinion of the medical officer of the Commonwealth on a matter referred to in subregulation (1) or (2) to be correct for the purposes of deciding whether a person meets a requirement or satisfies a criterion."Consideration – Does the opinion of the RMOC meet Regulation 2.25A? The Tribunal has considered the detailed submissions in the representative’s letter made 5 April 2019. The submissions argue that the Tribunal should disregard the RMOC opinion, and which in summary, complain that the RMOC report is invalid for the following reasons:·the report has ignored the Statutory Declaration of Ulrik’s mother, Raquel Caberto, made 13 November 2018;·has “ignored/or not considered” relevant materials, listed as:-i.the mother’s statutory declarationii.reports of:a)Dr Guptab)Dr Somaiyac)Dr Gargd)Gerard McShane, psychologiste)Rachel Summerville, occupational therapistf)the school principal of Bidwill Public School·there is no recent evidence of “severe autism spectrum disorder” ·the finding is of “moderately severe functional and learning impairment” which finding is itself not justified on the available material;·the RMOC disagrees with the applicant’s medical opinions, where the applicant’s opinions are “logically probative” and should therefore be accepted over the RMOC·the RMOC has had regard to an “old” report, being the report of Dr Lampropoulos, which is now more than three years old and an “irrelevant consideration” [6]·failing to undertake a proper and realistic enquiry ·failing to itemise “significant cost”, where the threshold is $40,000 ·where there is no “prejudice” caused to Australians, such as might be relevant in the case of organ transplant or dialysis, but not for moderate autism spectrum disorder·failing to have regard to the RMOC checklist, the predictable length of the condition diagnosed, and an estimate of the likely cost over the life expectancy of the condition·failing to have regard to the Department’s guidelines as set out in the procedure advice manual (PAM).[6] See pp 9-10 of submission letter dated 5 April 2019 The letter submitted that the issue for consideration by the Tribunal is:“Whether the Tribunal will accept the latest opinion of the RMOC on 14/02/2019 as correct, in accordance with reg. 2.25A (3) of the Migration Regulation”.[7][7] Page 4 of submission dated 5 April 2019