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

1. 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).

2. 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.

3. 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.

4. The Tribunal received an application for review from the applicants on 28 October 2018.

5. 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.

6. 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.

7. On 27 August 2021, the applicants’ representative confirmed that the applicants wished to obtain a further opinion from a MOC.

8. On 31 August 2021, the Tribunal received confirmation that Mrs Gerlie De La Cruz Quimson had been assessed by a Senior MOC. Information on Departmental system confirms that Mrs Gerlie De La Cruz Quimson was found to meet health requirements, and a copy of the Opinion of the Review Medical Officer of the Commonwealth (RMOC) dated 31 August 2021 has been provided to the Tribunal and states that she meets PIC 4007.

9. Given the favourable information received, the Tribunal did not consider that a hearing was necessary, as it was able to find in favour of the visa applicants on the material before it.

10. For the following reasons the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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.

12. 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.

13. 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))?

14. 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.

15. 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.

16. 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.

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

18. 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?

19. 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.

20. At the time of the delegate’s decision the opinion of the MOC dated 18 December 2017, indicated that Mrs Gerlie De La Cruz Quimson did not satisfy PIC 4007(1)(c)(ii)(A) on the basis that a hypothetical person with this condition, at the same severity as the applicant, would likely require health care of 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. As noted above, changes were made to the policy regarding the assessment of the health criterion and a current opinion, based on available medical reports detailing Mrs Gerlie De La Cruz Quimson’s condition, has been obtained from the RMOC.

22. The opinion, dated 31 August 2021, states that Mrs Gerlie De La Cruz Quimson has been assessed against PIC 4007 and meets the health requirement for a permanent stay in Australia. The opinion also sets out that it is based on available medical and radiological reports, and the Tribunal is satisfied that the RMOC has applied the correct test in providing their opinion.

23. Accordingly, based on the opinion of the RMOC, the second named applicant, Mrs Gerlie De La Cruz Quimson, who is a member of the family unit of the applicant, satisfies PIC 4007(1)(a), (b) and (c).

24. 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

25. 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 Hunter

    
    

    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.