Osmani (Migration)
[2024] AATA 3423
•4 September 2024
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 remittedLEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.25A; Schedule 2, cl 482.317; Schedule 4, PIC 4007CASES
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 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.
After several months of engagement with the Tribunal (differently constituted), this matter came to me in late May 2024. On 11 June 2024, the Tribunal corresponded with the applicant’s representative to confirm the applicant’s intent to have a new MOC opinion obtained on their behalf and requested confirmation of any additional documents to be submitted to the MOC on the applicant’s behalf. On 14 June 2024, the representative confirmed that a new MOC opinion was sought but that no new information was needed to pass on to the MOC. The Tribunal requested a new MOC opinion for the applicant on 17 June 2024. The Tribunal received the MOC opinion on 20 June 2024, and, as expected, Riza was found not to meet the health requirement.
Specifically, the MOC opinion states that Riza does not meet the requirement in PIC 4007(1)(c)(ii)(A), because a hypothetical person with the same disease or condition as Riza, at the same severity, would be likely to require health care or community services during the period specified (four years). Because this is an application for a Subclass 482 visa with a four year duration, I am satisfied that the MOC has considered the correct timeframe as set out in PIC 4007(1A), and I am satisfied that the MOC opinion contains all the advice required regarding the likely costs for care and treatment for a hypothetical person with the same condition as Riza. Therefore, I am satisfied that the MOC opinion is valid and can be relied upon by the Tribunal in making its findings.
The Tribunal then wrote to the applicant on 20 June 2024 pursuant to s.359A of the Act, inviting them to comment on adverse information, being the MOC opinion that Riza did not meet the health requirement in PIC 4007(1)(c). The Tribunal’s letter explained that this information was relevant to the review because it was a requirement Riza to meet PIC 4007 to be granted the visa, and that if the Tribunal relied on this information, it may be a reason or part of the reason to affirm the decision under review. The comments were due by 4 July 2024.
On 3 July 2024, the applicant’s representative wrote to the Tribunal enclosing detailed submissions in response to the invitation to comment, and also directed the Tribunal to its previous compilation of documents and submissions in support of the Tribunal exercising its discretion to waive the health requirement that was submitted in April 2024. Riza and his family do not contest the findings of the MOC. Rather, the submissions reflect the family’s hope for an exercise of the waiver set out in PIC 4007(2)(b).
Based on all the evidence available to me at the time of my decision, I am satisfied that the MOC opinion is valid and therefore, based on the opinion of the MOC (by which I am bound), I find that Riza does not satisfy PIC 4007(1)(c).
Should the requirements of PIC4007(1)(c) be waived?
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).
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.
Riza’s representative provided the Tribunal with comprehensive submissions including detailed medical reports, declarations and information regarding Jetmir and Fatjeta’s incomes and tax returns, and the costs involved with Riza’s education. The only significant cost the MOC identified for Riza that may affect the Australian community in the areas of health care and/or community services were the need for special education services. The MOC has indicated that there would be a cost of $31,355.00 over each of the 4 years the visa would be valid, and that would cover state-funded special education at Level 3. The MOC states they relied on the Disability Services Notes for Guidance dated May 2024, including but not limited to Scenario 4, to reach this conclusion.
The MOC did not provide a Health Waiver Information letter with the opinion dated 20 June 2024, and despite the Tribunal’s request for one declined to do so, stating that the MOC could not guide the Tribunal regarding its exercise of the discretion. However, the Tribunal notes that the MOC did give the delegate a Health Waiver Information letter on 8 September 2020. The previous MOC opinion from September 2020 had a similar estimation of costs for special education services. The Tribunal notes that, at that time, the total estimate was $104,000 across the 4 years.
In that letter, the MOC stated that, in their opinion, granting a visa to Riza for the assessed period of stay would not be likely to prejudice the access of an Australian citizen or permanent resident to health care or community services. This was based on a valid MOC opinion of the same date, assessing Riza for a period of 4 years from the time the application was made in 2019. The Tribunal gives significant weight to the MOC’s expert opinion regarding the waiver.
Further, the Tribunal gives significant weight to the fact that at the time of the Tribunal’s decision, this is a fully retrospective analysis of the costs that Riza would have incurred to the Australian community had his Subclass 482 visa been granted at the same time as the rest of his family. Riza has been able to demonstrate the actual costs that have been incurred, his parents’ contributions to those costs, and the deviance from the MOC’s estimation of what costs a hypothetical person with the same condition as Riza at the same severity may have been able to accrue over that tested 4 year period from the time of application.
Riza’s family has provided evidence demonstrating that during the relevant period, Riza attended a mainstream primary school in Adelaide. He completed Years 5 and 6 at Gilles Street Primary School and Year 7 at West Beach Primary School in Adelaide, and was fully integrated into the regular classroom settings in those schools. He did not incur expenses on the basis of special education services provided to him. He did not have the benefit of an integration aide. He then completed Year 8 at Seaton High School. While he did work in a specialist class predominantly comprised of students with a diagnosis of ASD Level 2, he was not in a school specifically designed for students with special needs that had been funded accordingly. Riza’s parents have given evidence, and provided corroborating documents, to show that they have met all of Riza’s schooling costs out of pocket, as he is an international student who is not entitled to Commonwealth or State support for his education.
Given that the passage of time from the application being lodged with the Department to the Tribunal hearing has meant that the Tribunal has the ability to consider what actually occurred for Riza from 2019 to 2023, it is much easier for the Tribunal to be satisfied that exercising the waiver is warranted in this situation.
Riza gave evidence at his hearing that he intends to complete high school at Seaton High School then undertake an apprenticeship with his father and start a family business in painting and decorating with him. Riza and Jetmir are optimistic about their future prospects working together in Adelaide. Fatjeta is supportive of the plan and looks forward to seeing Riza contribute fully to Australian society as both a tax payer and member of the community. Riza has no history of violence or anger associated with his autism diagnosis and is a quiet, well adjusted child.
Between Riza’s family demonstrating that there has been no actual cost to the Australian community, and the MOC’s advice in September 2020 that waiving the health requirement would not result in prejudice to the Australian community, 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.
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 Sheargold
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.
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