Patel (Migration)

[2020] AATA 5322

Patel (Migration) [2020] AATA 5322 (11 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Paresh Patel
Ms Vasanti Patel

CASE NUMBER:  1930681

DIBP REFERENCE(S):  BCC2019/1455616

COUNTRY OF REFERENCE:                   United Kingdom

MEMBER:Kira Raif

DATE:11 December 2020

PLACE OF DECISION:  Sydney

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

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

Statement made on 11 December 2020 at 6:11pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – health criteria – disease or condition likely to require health care and result in significant cost to community – further opinion of medical officer of commonwealth provided to tribunal – low state of second applicant’s condition – decision under review remitted

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

CASES
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 decisions made by a delegate of the Minister for Immigration on 16 October 2019 to refuse to grant the applicants Employer Nomination (Permanent) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 22 March 2019. The delegate refused to grant the visa as the first named applicant (now referred to as the applicant) did not satisfy cl.186.224 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate found that the second named applicant, Ms Vasanti Patel did not meet Public Interest Criterion (‘PIC’) 4007 of Schedule 4 to the Regulations.

3. On 5 November 2020, the Tribunal invited the applicants to obtain a current opinion from a Medical Officer of the Commonwealth (MOC) in respect of Ms Vasanti Patel, which the Tribunal explained could be arranged on their behalf. The applicants were also invited to provide any updated information, including medical or specialist reports regarding Ms Vasanti Patel’s condition which they wanted the MOC to consider.

4. On the same date, 5 November 2020, the applicants’ representative confirmed that the applicants wished to obtain a further medical opinion. The representative provided a submission in support of the new MOC opinion, an updated Medical Report from the second named applicant’s treating rheumatologist dated 2 October 2020, PBS information extract for her medication, a picture of the medication dispensed to the second named applicant and payslips for her employment. The Tribunal included this material in the request for a further opinion from the MOC.

5. On 30 November 2020, the Tribunal received the Opinion of a Review MOC dated 27 November 2020, advising that the second named applicant, Ms Vasanti Patel, now meets the health requirements.

6. Given the favourable information received, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Clause 186.224(2) requires that each member of the family unit of the applicant who is an applicant for a Subclass 186 visa satisfies PIC 4007.

8. The issue in this review is whether Ms Vasanti Patel, who is a member of the family unit of Mr Paresh Patel (the applicant for the Subclass 186 visa) meets PIC 4007 as required by the criteria for the grant of the visa.

9. Public Interest Criterion 4007, as it applies to this case, 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. Ms Vasanti Patel in this case has been assessed as having a ‘low state’ of rheumatoid arthritis.  

   Has the applicant undertaken a medical assessment (PIC 4007(1)(aa))?

10. Clause 4007(1)(aa) requires that if the applicant is in a specified class of persons, he or she must undertake the specified medical assessment and be assessed by a specified person unless a Medical Officer of the Commonwealth (MOC) decides otherwise. The relevant class of persons and assessments are specified in IMMI 15/144.

11. The second named applicant in this case is a citizen of the United Kingdom who arrived in Australia in December 2016. She has undertaken a medical assessment, and meet PIC 4007(1)(aa).

    Has the applicant complied with a request to undertake a medical assessment (PIC 4007(1)(ab)?

12. Clause 4007(1)(ab) requires that the second named applicant comply with any request by a Medical Officer of the Commonwealth (MOC) to undertake a medical assessment. As noted above, she has undertaken the required medical assessment and therefore satisfies PIC 4007(1)(ab).

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

13. 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.

14. 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.

15. 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.

16. As the applicant in this case has applied for a permanent visa, the exemption provision in PIC 4007(1B) does not apply.

17. 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?

18. 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.

19. On 11 April 2019 the second named applicant was assessed by an MOC as not satisfying PIC 4007(1)(c)(ii)(A). A further opinion was obtained by the second named applicant. The delegate’s decision was based on that further opinion dated 5 September 2019.

20. At the time of the delegate’s decision the MOC had indicated that Ms Vasanti Patel did not satisfy PIC 4007(1)(c)(ii)(A) on the basis that a hypothetical person with stable rheumatoid arthritis, at the same severity as the applicant, would likely require health care or community services during the period specified, being a permanent stay, and that the provision of these services would result in a significant cost to the Australian community.

21. The opinion dated 27 November 2020 states that Ms Vasanti Patel has been assessed against PIC 4007 and meets the health requirement for a permanent stay in Australia. It is noted that the opinion is based on available medical and radiological reports. The Tribunal is satisfied that the opinion is valid.

22. Accordingly, based on the opinion of the MOC, the second named applicant, Ms Vasanti Patel satisfies PIC 4007(1)(a) (b) (c).

23. Given the findings above, the appropriate course is to remit the visa applications for the first and second named applicants to the Minister to consider the remaining criteria for the visa.

    DECISION

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

    ·PIC 4007(1) for the purposes of cl.186.224 of Schedule 2 to the Regulations.

    Kira Raif