Osmani (Migration) - [2024] AATA 3423

Osmani (Migration) [2024] AATA 3423 (4 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Master Riza Osmani
REPRESENTATIVE:  Ms Arnela Tolic
CASE NUMBER:  2104160
HOME AFFAIRS REFERENCE(S):          BCC2019/1567791
COUNTRY OF REFERENCE:                   Italy
MEMBER:Mary Sheargold
DATE:4 September 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for a GK – Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 482 - Temporary Skill Shortage visa:
·PIC 4007(2)(b) for the purposes of cl 482.317(1) of Schedule 2 to the Regulations.

Statement made on 04 September 2024 at 9:10am
CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – health criteria – autism spectrum disorder (Level 2) – Medical Officer of the Commonwealth (MOC) opinion – waiver of requirement – undue cost or undue prejudice – all costs met out of pocket – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.25A; Schedule 2, cl 482.317; Schedule 4, PIC 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

Master Riza Osmani is a 15-year-old Italian national who first arrived in Australia in June 2018. He travelled to Australia with his father Jetmir, mother Fatjeta, and sister Isra when his father was sponsored by Urban Innovations Pty Ltd for a Subclass 482 visa. Riza was included as a secondary applicant in that application.
The rest of the family were granted Subclass GK – Temporary Skill Shortage (Class GK) (Subclass 482) visas, but Riza’s visa application was refused by a delegate of the Minister for Home Affairs under s 65 of the Migration Act 1958 (Cth) (the Act) on 18 March 2021 because he did not satisfy cl 482.317(1) 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.
Riza’s younger sister Adela was born in Adelaide in September 2019; she has lived in Australia continuously since birth. The rest of Riza’s family are coming to the end of the validity of their Subclass 482 visas, and applications are underway for the family to transition to permanent residency visas. Jetmir has been working full time in Adelaide in his nominated skilled occupation, including through the Covid-19 pandemic. Since these applications were made on 28 March 2019, Riza has been attending school in Adelaide where his parents pay international student fees to cover his education costs.
Riza and his parents appeared before the Tribunal on 2 August 2024 by MS Teams video link from Adelaide to give evidence and present arguments. Riza was represented in relation to the review. The representative attended the Tribunal hearing by a separate video link.
For the following reasons, the Tribunal has concluded that the matter should be…

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 Osmani (Migration)

Details

AGLC: Osmani (Migration) [2024] AATA 3423
Case: [2024] AATA 3423
Decision Date: 4 September 2024

CaseChat Overview and Summary

This matter concerned an application for a Temporary Skill Shortage (Class GK) visa, Subclass 482, made by the applicant, Osmani. The dispute before the Tribunal was whether the applicant 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 or prejudice to community services. The applicant had been diagnosed with autism spectrum disorder (Level 2).

The Tribunal was required to determine if the applicant was free from diseases or conditions as stipulated in PIC 4007(1)(a), (b), and (c). Specifically, it needed to consider whether the applicant's condition would likely require health care or community services, and if the provision of such services would result in significant cost to the Australian community or prejudice access for Australian citizens or permanent residents. The Tribunal also had to consider whether a waiver of these requirements was applicable under PIC 4007(2).

The Tribunal reasoned that a Medical Officer of the Commonwealth (MOC) opinion was required to assess the applicant's condition against the relevant criteria. However, it found that the MOC opinion provided did not clearly demonstrate that the correct test had been applied, referencing the principles in *Robinson v MIMIA* and *Ramlu v MIMIA*. The Tribunal noted that while it must generally accept a MOC opinion as correct, it must first be satisfied that the MOC applied the statutory criteria by reference to the applicant's specific condition and its form or level. The Tribunal concluded that the matter should be remitted for reconsideration by the Minister.

The Tribunal remitted the application for a GK – Temporary Skill Shortage (Class GK) visa, Subclass 482, for reconsideration. The direction was that the applicant meets PIC 4007(2)(b) for the purposes of clause 482.317(1) of Schedule 2 to the Regulations, indicating that the waiver provisions were to be considered.

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 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. The applicant in this case has a diagnosis of autism spectrum disorder (Level 2).Is the applicant free from the relevant diseases or conditions (PIC 4007(1)(a), (b), (c))? 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. 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. 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. In this case the temporary visa the applicant is seeking is not specified in Legislative Instrument IMMI 16/067. As such the health care and community services listed in the instrument IMMI 11/073 are excluded from consideration. 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. Where an opinion of a MOC is required, the Tribunal must take it be correct: reg 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 visa to the Minister to consider the remaining criteria for the visa.DECISION The Tribunal remits the application for a GK – Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 482 - Temporary Skill Shortage visa:·PIC 4007(2)(b) for the purposes of cl 482.317(1) of Schedule 2 to the Regulations.Mary SheargoldMemberATTACHMENTMigration 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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