Quimson (Migration) - [2021] AATA 3472

Quimson (Migration) [2021] AATA 3472 (1 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Michael Quimson
Mrs Gerlie De La Cruz Quimson
Miss Blessa Victoria De La Cruz Quimson
Master Jairo Jabez De La Cruz Quimson
CASE NUMBER:  1831638
HOME AFFAIRS REFERENCE(S):          BCC2017/328639
COUNTRY OF REFERENCE:                   Philippines
MEMBER:Penelope Hunter
DATE:1 September 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for Employer Nomination (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 - Employer Nomination Scheme visa:
·PIC 4007(1) for the purposes of cl 186.224(2) of Schedule 2 to the Regulations.

Statement made on 1 September 2021 at 3:00pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Review Medical Officer of the Commonwealth opinion provided upon review – secondary applicant acquired Australian citizenship – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 186.224; Schedule 4, Public Interest Criterion 4007; r 2.25
CASES
Ramlu v MIMIA [2005] FMCA 1735
Robinson v MIMIA (2005) 148 FCR 182
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 22 October 2018 to refuse to grant the applicants Employer Nomination (Permanent) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicants applied for the visas on 24 January 2017. The first named applicant is the primary visa applicant for a Subclass 186 visa. The remaining visa applicants are members of his family unit. Mrs Gerlie De La Cruz Quimson is the wife of the applicant, and Miss Blessa Victoria De La Cruz Quimson and Master Jairo Jabez De La Cruz Quimson are their children.
The delegate refused to grant the visa as the as the applicant did not satisfy cl 186.224(2) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because Mrs Gerlie De La Cruz Quimson and Master Jairo Jabez De La Cruz Quimson were assessed as not satisfying the health criteria in Public Interest Criterion (‘PIC’) 4007 of Schedule 4 to the Regulations.
The Tribunal received an application for review from the applicants on 28 October 2018.
While awaiting review, evidence has been submitted to the Tribunal that on 5 July 2019, Master Jairo Jabez De La Cruz Quimson has been approved as an Australian citizen as a 5 July 2019. He therefore no longer requires a Subclass 186 as a member of the family unit of the applicant.
In July 2019, the costing policy for permanent visas was reviewed and changed by the Department. On 13 August 2021, the Tribunal invited the applicants to obtain a current opinion from a MOC in respect of Mrs Gerlie De La Cruz Quimson which the Tribunal explained could be arranged on their behalf.
On 27 August 2021, the applicants’ representative confirmed that the applicants wished 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 Quimson (Migration)

Details

AGLC: Quimson (Migration) [2021] AATA 3472
Case: [2021] AATA 3472
Decision Date: 1 September 2021

CaseChat Overview and Summary

This matter concerned an appeal before the Administrative Appeals Tribunal regarding an Employer Nomination (Permanent) visa (Subclass 186). The primary applicant was Mrs Gerlie De La Cruz Quimson, and the secondary applicant was her son, Master Jairo Jabez De La Cruz. The central dispute revolved around whether Mrs Quimson 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 community services in Australia.

The Tribunal was required to determine if Mrs Quimson satisfied PIC 4007, given that her son had acquired Australian citizenship. This meant that the requirement for him to meet PIC 4007 was no longer applicable, but it remained a crucial criterion for Mrs Quimson as the primary applicant for the permanent visa. The Tribunal also had to consider the specific requirements of PIC 4007, including the need for a Medical Officer of the Commonwealth (MOC) opinion in certain circumstances, and the obligation to treat such an opinion as correct unless it was demonstrably flawed in its application of the statutory criteria.

The Tribunal reasoned that as Master Jairo Jabez De La Cruz had been granted Australian citizenship, the primary issue for review was Mrs Quimson's compliance with PIC 4007. The Tribunal noted that Mrs Quimson had been found to have asymptomatic chronic viral Hepatitis B. The Tribunal was required to seek a MOC opinion for a permanent visa application where there was information suggesting the applicant might not meet the health requirements. The Tribunal acknowledged that while a MOC opinion is generally taken as correct, it must first be satisfied that the MOC applied the correct legal test.

Ultimately, the Tribunal concluded that the matter should be remitted for reconsideration. The decision directed that the application for the Subclass 186 visa be reconsidered, with the finding that the first named applicant, Mrs Gerlie De La Cruz Quimson, met PIC 4007 for the purposes of clause 186.224(2) of Schedule 2 to the Regulations.

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 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. As Master Jairo Jabez De La Cruz has been granted Australian citizenship, and the Tribunal has confirmed this from Departmental records, the remaining issue for the Tribunal on review is whether Mrs Gerlie De La Cruz Quimson, meets 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 that visa applicants, in certain circumstances, to undergo medical assessment, and to be free of certain diseases or conditions that may impact on the Australian community. This last requirement may be waived in certain circumstances. Mrs Gerlie De La Cruz Quimson in this case has been found to have the condition of asymptomatic chronic viral Hepatitis B. 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. As the applicant in this case has applied for a permanent visa, the exemption provision in PIC 4007(1B) does not apply. 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 in respect of the applicant, second named applicant and third named applicant, to the Minister to consider the remaining criteria for the visa.DECISION The Tribunal remits the application for Employer Nomination (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 - Employer Nomination Scheme visa:·PIC 4007(1) for the purposes of cl 186.224(2) of Schedule 2 to the Regulations.Penelope HunterMemberATTACHMENTMigration 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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