Prudenciado (Migration)

[2018] AATA 1046

Prudenciado (Migration) [2018] AATA 1046 (21 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Phoebe Ferrer Prudenciado
Mr Raymund Racsa Rea
Master Kurt Darryl Rea

CASE NUMBER:  1509963

DIBP REFERENCE(S):  BCC2014/2102159
BCC2015/169176

MEMBER:Katie Malyon

DATE:21 February 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) visas.

Statement made on 21 February 2018 at 10:51 am

CATCHWORDS

Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Public Interest Criterion – Health criteria not met by all members of the same family unit – Child has medical condition – Exceptional circumstances – Exceptional economic, scientific, cultural or other benefits – Referral for Ministerial intervention

LEGISLATION
Migration Act 1958, ss 65, 351

Migration Regulations 1994, r 2.25A, Schedule 2, cl 187.235, Schedule 4, PIC 4005

CASES
Robinson v MIMIA (2005) 148 FCR 182

Ramlu v MIMIA [2005] FMCA 1735

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 6 July 2015 to refuse to grant the applicants Regional Employer Nomination (Permanent) Subclass 187 visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 26 August 2014. The delegate refused to grant the visa on the basis that the first named applicant, Ms Phoebe Ferrer Prudenciado, did not satisfy cl.187.235(2) 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 by each of her family members included in the Subclass 187 visa application. Relevant provisions of the Regulations, including PIC 4005, are extracted in the Attachment to this decision.

3. Ms Prudenciado and the second named applicant, her husband Mr Raymund Racsa Rea, appeared before the Tribunal by way of video conference from Canberra on 28 March 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Filipino and English languages, although the Tribunal notes that Ms Prudenciado and her husband did not use the interpreter.  The applicants were represented in relation to the review by their registered migration agent.

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. However, for reasons also set out below, the Tribunal has decided to refer the matter to the Department for consideration by the Minister pursuant to s.351 of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this review is whether each visa applicant meets PIC 4005 as required by the criteria for grant of the visa.  PIC 4005 requires a visa applicant, in certain circumstances, to undergo a medical assessment and to be free of certain diseases or conditions that may impact on the Australian community.  

6. Ms Prudenciado included, as a member of her migrating family unit, her sons Kendrick Rea and Kurt Rea. As a visa applicant, Kendrick Rea must satisfy cl.187.235(2) of Schedule 2 of the Regulations in respect of the health criteria in PIC 4005. However, based on the opinion of a Medical Officer of the Commonwealth (MOC) at the time of the delegate’s decision, he did not meet PIC 4005.

7. Based on documentation in the Department’s file, a MOC provided an opinion dated 30 March 2015 that Kendrick Rea does not satisfy PIC 4005(1)(c)(ii)(A) because he has [a certain impairment], possibly due to [his medical condition].  Just over 3 months later, a MOC provided an opinion dated 3 July 2015 which states that Kendrick Rea does not satisfy PIC 4005(1)(c)(ii)(A) because he has been diagnosed with ‘[a certain medical condition]’.  Both MOC reports state that a hypothetical person with this disease or condition, at the same severity as that of Kendrick Rea, would be likely to require health care or community services during the period of permanent residence, including early intervention services, State disability services and special education services.  The MOC reports also state that these health care and/or community services would be likely to result in a significant cost to the Australian community in the areas of health care and/or community services. 

8. As all applicants must meet PIC 4005, the delegate concluded that Ms Prudenciado therefore could not satisfy cl.187.235 of Schedule 2 of the Regulations for the grant of the visa.

   Is the applicant free from the relevant diseases or conditions: PIC 4005(1)(a), (b), (c)?

9. PIC 4005(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. PIC 4005(1)(c) requires the applicant to 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 4005(3).  Since Ms Prudenciado has applied for a permanent visa, the exclusion provision in PIC 4005(3) does not apply.

11. To determine whether a person meets PIC 4005(1)(a), (b) or (c) of Schedule 4 of the Regulations, r.2.25A requires the Tribunal to seek the opinion of a 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. Relevantly, where an opinion of a MOC is required, the Tribunal must take it to be correct: r.2.25A(3) of the Regulations.

    Is a MOC opinion required?

12. On the evidence, the Tribunal finds that a MOC opinion is required as the exemption in PIC 4005(3) does not apply. 

    Has the MOC applied the correct test?

13. 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 that opinion: Robinson v MIMIA (2005) 148 FCR 182 and Ramlu v MIMIA [2005] FMCA 1735. In this regard, the MOC’s opinion must: identify the medical condition to which the PIC has been applied; identify 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.

14. In anticipation of the hearing, the Tribunal wrote to the applicants giving them the opportunity to obtain a further MOC opinion in respect of Kendrick Rea.  The applicants’ representative forwarded extensive documentation including further copies of reports and assessments in the Department’s file. [Details of medical reports deleted] The Tribunal forwarded the recent reports to the MOC for a further opinion.  On 10 March 2017, the Tribunal received the MOC’s Form 884 Opinion of a Review Medical Officer of the Commonwealth. 

15. The MOC’s opinion of 10 March 2017 in respect of Kendrick Rea states he does not satisfy PIC 4005(1)(c)(ii)(A) in Schedule 4 of the Regulations. [Medical details deleted]

16. The MOC indicated that, in preparing the opinion, regard was had to information available to 10 March 2017 and expressly referred not only to the reports referred to in the earlier MOC opinions of 3 March 2015 and 3 July 2015 but also the January 2017 reports from [medical practitioners]. Finally, the opinion notes the MOC’s position number and states the officer is a Medical Officer of the Commonwealth for the purposes of providing an opinion on whether prescribed health criteria under the Migration Regulations 1994 are met.  The Tribunal is satisfied the MOC applied the correct test.

17. At the commencement of the hearing, the representative confirmed that the applicants understand the Tribunal is bound to accept the recent decision of the MOC and noted that the real purpose in coming before the Tribunal was to present a case for raising the matter with the Minister for his personal intervention.  The representative provided a submission to the Tribunal in this regard.  Ms Prudenciado and her husband told the Tribunal that they accept the MOC’s opinion dated 10 March 2017 regarding their son Kendrick’s [medical condition] means that the Tribunal must affirm the decision.  The Tribunal discussed with Ms Prudenciado her work as a Child Care Worker in Canberra with the Gungahlin Kinder Haven.   In addition, the Tribunal discussed with Ms Prudenciado‘s husband his work as a Glass Technician. 

18. Based on the opinion of the MOC of 10 March 2017, the Tribunal finds that a member of Ms Prudenciado‘s migrating family unit, her 6 year old son Kendrick, does not satisfy PIC 4005(1)(c) (ii)(A) of Schedule 4 of the Regulations. It follows that he is not able to meet cl.187.235(2) of the Regulations which is a requirement for grant of the visa. Therefore, the Tribunal finds Ms Prudenciado does not meet cl.187.235 of the Regulations.

19. Ms Prudenciado has only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry stream.  No claims have been made in respect of the other visa streams.  As the requirements that must be met by a person seeking the visa in the Direct Entry stream have not been met, the decision under review must be affirmed.

    Is this an appropriate case to refer to the Minister?

20. Under s.351 of the Act, the Minister may substitute for a decision of the Tribunal, a decision which is more favourable to an applicant, if the Minister thinks it is in the public interest to do so.

21. The Tribunal has no statutory obligation to consider whether matters should be referred to the Minister for the consideration of his powers under s.351 of the Act, nor is there any statutory power to make a binding recommendation in this regard. The power under s.351 of the Act may only be exercised by the Minister personally. Furthermore, the powers are non-compellable, in the sense that the Minister has no duty to consider whether to exercise the relevant power, regardless of whether he is requested to do so by the applicant, or any other person, or in any other circumstances.

22. The Minister has issued guidelines explaining the circumstances in which he may wish to consider exercising his public interest powers under s.351 of the Act.[1]  The guidelines indicate that the Minister will give possible consideration to exercising his public interest powers in cases which are referred by the Tribunal and which exhibit one or more unique or exceptional circumstances (emphasis added).  The circumstances which, according to the Minister’s guidelines, may be unique or exceptional include, relevantly, where:

    Exceptional economic, scientific, cultural or other benefit would result from the person being permitted to remain in Australia

    [1] Available at

23. The representative requested the Tribunal refer Ms Prudenciado’s case to the Minister and has provided a submission with supporting documents to the Tribunal regarding Ms Prudenciado’s circumstances which address the ministerial guidelines.  The Tribunal will forward the submission and accompanying documentation to the Department excluding documentation in relation to the ongoing medical assessments of 6 year old Kendrick Rea. 

24. Ms Prudenciado told the Tribunal that her son is currently being looked after by his grandmother and aunt in the Philippines (Ms Prudenciado’s mother and sister) and that this has worked well for the family since the income that she and her husband earn in Australia is sufficient to afford their son the opportunity for appropriate care and attention by qualified professionals in the Philippines.  As a result, his condition has improved from [moderate] (as noted in the earlier MOC opinions of 3 March 2015 and 3 July 2015) to now being just [mild] (as confirmed by the MOC opinion of 10 March 2017).  Evidence of some remittances from Ms Prudenciado and her husband to family in the Philippines to pay for Kendrick’s treatments was provided to the Tribunal.  Ms Prudenciado told the Tribunal that, given her son is doing so well in the Philippines, she plans to leave him with his grandmother and aunt: she has no plans to bring him to Australia.  Rather, they will simply return to the Philippines to see him on a regular basis. 

25. At the hearing, Ms Prudenciado demonstrated a genuine and sincere desire to continue working as a Child Care Worker at the Gungahlin Kinder Haven (the Centre).  The Centre caters for 172 children and is one of G8 Education Limited’s childcare facilities.  The Tribunal notes that G8 Education Limited is Australia’s largest ASX listed child care centre operator.  Ms Prudenciado told the Tribunal the Centre has 10 rooms for children of different age groups:  there are 4 nursery rooms (each with 12 babies); 3 toddlers’ rooms (each with 20 toddlers); and, 3 pre-schoolers’ rooms (one group attends the Centre every day and 2 other groups attend on a part-time basis).  In addition to her childcare qualifications obtained in Australia, Ms Prudenciado also holds a Bachelor of Office Administration from the Philippine’s Christian University in Manila. 

26. Ms Prudenciado’s representative submits that the unique and exceptional circumstances in her client’s case are:

    1)Ms Prudenciado completed a Australian Diploma of Children’s Services (Early Childhood Education and Care) in June 2014 and is a highly skilled childcare worker.  As well is being a Room Leader, Ms Prudenciado was appointed to be the Centre’s Lead Educator effective October 2016.  This is confirmed in a letter dated 22 March 2017 from Siobhan Wong, Centre Manager, Gungahlin Kinder Haven.

    The letter from Ms Wong confirms that Ms Prudenciado ‘monitors, guides and mentors 7 (of the 10) rooms’ and is ‘responsible for the respective curriculum, learning journeys and environments’ in each room for which she is responsible.  The letter also notes that Ms Prudenciado is ‘thriving’ in the role of Lead Educator and has received ‘much positive feedback’ not only from Centre staff and management but also from families with children attending the Centre.  She is a ‘mentor and a role model to many’.  Ms Wong also states that, if Ms Prudenciado was unable to continue her employment with Gungahlin Kinder Haven, it would be a ‘huge loss’ to the Centre.

    2)There will continue to be a growing demand for childcare places in the next 3 years in Canberra, especially in the Gungahlin region.  This is supported by an article in The Canberra Times of 14 March 2017 ‘Babies will drive growth in number of Canberrans’ in which Professor Peter McDonald, a Demographer with the University of Melbourne, commented on the ACT’s relatively high birth rate. Further, the ACT Government has published similar material indicating that the Gungahlin District is the fastest growing area of Canberra: it has, and will continue to have, a higher percentage of its population aged from 0 – 14 years.

    The Tribunal also notes a more recent article in The Canberra Times of 27 June 2017 ‘Census 2016: ACT has nation’s largest population growth, Gungahlin the driver’.[2]  

    [2] >

    Ms Prudenciado has also provided a letter from local Pastor from the Northpointe Baptist Church confirming her family’s regular attendance at church in Gungahlin.  Her representative may wish to make further submissions direct to the Department and the Minister.

27. Having regard to the evidence, the Tribunal accepts that Ms Prudenciado’s circumstances are capable of meeting the criteria extracted above for referral to the Minister, namely, there would be exceptional economic and other benefits from allowing Ms Prudenciado and her family who are already in Australia to remain here. As such, the Tribunal considers that Ms Prudenciado’s situation may involve exceptional circumstances and the Tribunal therefore considers it appropriate to request that this case be brought to the attention of the Minister in order for him to consider whether to exercise his discretionary intervention powers under s.351 of the Act.

    DECISION

28. The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) visas.

    Katie Malyon

    
    Member

    ATTACHMENT – Extracts from the Migration Regulations 1994
    
    

    Referral to Medical Officers of the Commonwealthr. 2.25A 

    (1)   In determining whether an applicant satisfies the criteria for the grant of a visa, the Minister must seek the opinion of a Medical Officer of the Commonwealth on whether a person (whether the applicant or another person) meets the requirements of paragraph 4005(1)(a), 4005(1)(b), 4005(1)(c), 4006A(1)(a), 4006A(1)(b), 4006A(1)(c), 4007(1)(a), 4007(1)(b) or 4007(1)(c) of Schedule 4 unless:

    (a)  the application is for a temporary visa and there is no information known to Immigration (either through the application or otherwise) to the effect that the person may not meet any of those requirements; or

    (b) the application is for a permanent visa that is made from a country (whether Australia or a foreign country) specified in a legislative instrument made by the Minister for the purposes of this paragraph and there is no information known to Immigration (either through the application or otherwise) to the effect that the person may not meet any of those requirements.

    Note: For foreign country, see section 2B of the Acts Interpretation Act 1901 .

    (2)  In determining whether an applicant satisfies the criteria for the grant of a Medical Treatment (Visitor) (Class UB) visa, if there is information known to Immigration (either through the application or otherwise) to the effect that the requirement in subclause 602.212(2)(d) has not been met, the Minister must seek the opinion of a Medical Officer of the Commonwealth on whether the requirement has been met.

    (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.

    Schedule 2 - Provisions with respect to the grant of Subclasses of visas

    Subclass 187 - Regional Sponsored Migration Scheme

    ..

    187.23 - Criteria for Direct Entry stream

    Note:  These criteria are only for applicants seeking to satisfy the primary criteria for a Subclass 187 visa in the Direct Entry stream.
    ..

    187.235  (1)  The applicant satisfies public interest criterion 4005.

    (2)  Each member of the family unit of the applicant who is an applicant for a Subclass 187 visa satisfies public interest criterion 4005.

    (3)  Each member of the family unit of the applicant who is not an applicant for a Subclass 187 visa satisfies public interest criterion 4005 unless it would be unreasonable to require the member to undergo assessment in relation to the criterion

    Schedule 4 - Public interest criteria and related provisions
    
    …

    4005(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.

    …

    oOOo