Rehman (Migration)

[2019] AATA 492

Rehman (Migration) [2019] AATA 492 (12 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Muhammad Atteq-Ur Rehman
Mrs Summera Hafeez
Mr Zaeem Rehman
Ms Ariha Rehman
Mr Aheed Rehman

CASE NUMBER:  1710551

DIBP REFERENCE(S):  BCC2016/169544

MEMBER:Jennifer Cripps Watts

DATE:12 March 2019

PLACE OF DECISION:  Sydney

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

Statement made on 12 March 2019 at 10:14am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – third applicant does not meet health criterion – requires health and community services – no response to tribunal communication – decision made on papers – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359A

Migration Regulations 1994, Schedule 2, cl 185.235, PIC 4005, rr.2.25A, 2.25A(3)

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 (the delegate) on 28 April 2017 to refuse to grant the applicants Employer Nomination (Permanent) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 12 January 2016. The delegate refused to grant the visa on the basis that the first named applicant (now referred to as the applicant) did not satisfy cl.185.235 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.

3. The visas were refused on 28 April 2017.  The applicants applied for review on 17 May 2017, within time, and provided the Tribunal with a copy of the primary decision of the delegate.  The applicant confirmed that he wished the Tribunal to obtain a further Medical Officer of the Commonwealth (MOC) opinion and, on 1 February 2019, the Tribunal sent a request to a MOC with accompanying medical and other documents provided by the applicant. 

4. An opinion from the MOC, on form 884 and dated 7 February 2019, was received by the Tribunal and, on 25 February 2019, the applicant was sent a s.359A letter attaching the MOC opinion, inviting him to comment or respond.  The MOC’s opinion was that the third-named applicant, Zaeem Rehman, does not meet the health requirement, PIC 4005(1)(c)(ii)(A).  The applicant was informed that this would be a reason for affirming the decision to refuse the visas that are the subject of the Tribunal review.  A response was due no later than 11 March 2019.  The applicant was informed that he could request an extension of time and that if a response was not received by 11 March 2019, he would lose his right to a hearing.  No extension of time was requested during the relevant period and no response was received.

5. The Tribunal, in the above circumstances, finds that the applicants have now lost the right to a hearing to give oral evidence before the Tribunal and has proceeded to make a decision on the evidence before it.

6. The applicants were represented in relation to the review by their registered migration agent, Mr Ejaz Kahn, Migration Agent Registration Number 0213478.

7. When the review application was made, on 17 May 2017, the applicant appointed migration agent, Mr Khan, as his authorised recipient and representative.  According to the Migration Agents Registration Authority, Mr Khan is currently registered as a migration agent.  Correspondence relating to the request by the Tribunal for the MOC opinion was made through the applicant’s migration agent, including the form that was returned signed and dated 12 November 2018 confirming the applicant wished the Tribunal to obtain a further opinion of an MOC.   The Tribunal has not been notified of any change to the applicant’s circumstances, for example a change of contact details or authorised recipient.  The Tribunal is satisfied that the s.359A letter and MOC opinion were sent to the registered migration agent and authorised recipient appointed by the applicant.  

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this review is whether the visa applicant meets Public Interest Criterion (PIC) 4005 as required by the criteria for the grant of the visa. Public Interest Criterion 4005, 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. The applicant referred to in this case, relevantly, is Zaeem Rehman, the third-named applicant and child of the primary applicant.

10. The primary applicant for a Subclass 186 visa must satisfy all criteria at the time a decision is made on the application. 

11. On the evidence, the Tribunal is satisfied that it is not in dispute that the child, third-named applicant Zaeem Rehman, is a member of the family unit of the primary applicant, Muhammad Atteq-Ur Rehman.

12. Regulation 186.235 requires that the applicant satisfies, among other things, PIC 4005, and also that each member of the family unit of the applicant who is an application for a Subclass 186 visa satisfies PIC 4005 (cl.185.235(1) and (2)), unless it would be unreasonable to require the family member to undergo assessment in relation to the criteria (cl.185.235(3)).  The person, Zaeem Rehman, is a member of the family unit of the primary applicant and is included in the visa application and he has already undergone the relevant medical assessment.  The applicant must meet PIC 4005 as required by r.185.235.

13. On the evidence before the Tribunal, the essence of Zaeem Rehman’s medical issues are identified and described by the MOC in the MOC opinion dated 11 February 2019 as follows; the applicant is a 12 year old person with:

    a.Moderately severe functional and cognitive impairment

    b.Moderately severe intellectual impairment

    c.Severe visual impairment

    d.Limited capacity to perform activities of daily living and who requires additional education support.

14. The MOC’s opinion is that the condition, based on a hypothetical person with the same disease or condition, is permanent.

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

15. Public interest criterion 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.  

16. Relevant in this matter is that Public interest criterion 4005(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 service are excluded from this consideration: PIC 4005(3).

17. As the applicant in this case has applied for a permanent visa, the exclusion provision in PIC 4005(3) does not apply.

18. In determining whether a person meets PIC 4005(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?

19. The visa is a permanent visa, Subclass 186.  The Tribunal has had regard to the relevant instrument and is satisfied that the primary applicant is a citizen of New Zealand and that a MOC opinion is required.

20. 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.

21. The MOC opinion dated 11 February 2019 includes that the MOC, in preparing the opinion, has had regard, but not limited themselves, to the following documents relating to Zaeem Rehman:

    a.The panel physician examination and activities of daily living assessment of 2 August 2016

    b.Paediatrician report of Dr Bhurawala dated 27 September 2016

    c.Itinerant Support Teacher Bass Hill Vision Team, Robyn Briggs, dated 1 September 2016

    d.Reports from Yagoona Public School, letter from the principal dated 29 August 2016

    e.School Counsellor Assessment Report, dated 2 September 2016 and semester 1/2016 report, dated 29 June 2016

    f.NDIS access checklist

    g.Social Security Agreement between Australia and New Zealand – Frequently Asked Questions, dated 20 November 2018

    h.Vision Review Meeting, dated 18 September 2018

    i.Bonnyrigg Vision Team reports, goals - review dated 18 October 2018, report – review date 18 September 2018

    j.Class Teacher, Jenny Wooding, report dated 18 September 2018

    k.Busby West Public School 2018 Semester 2 report

    l.NDIS plan, approval and commencement date 2 January 2019

    m.Guide Dogs NSW/ACT Progress Report dated 7 February 2019.

22. On the evidence, the Tribunal is satisfied that the MOC identified the medical condition/s to which the public interest criterion has been applied, and the form or level of the condition suffered by the applicant, and is satisfied that the MOC applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition.

23. The MOC states in the MOC opinion that:

    ‘Provision of services to a hypothetical person in Australia with the same condition as the applicant and at the same severity:  a hypothetical person in Australia with the same condition as the applicant, at the same severity, would be likely to require long term disability support services including but not limited to supported education as a child, future income support and disability support services as an adult.  This condition is likely to be Permanent.

    I consider that a hypothetical person with this disease or condition, at the same severity as the applicant, would be likely to require health care or community services during the period specified above.’

24. The Tribunal must be satisfied that the MOC opinion is valid, that is, authorised by the Regulations.  The Tribunal has carefully considered the evidence and is satisfied, for the reasons given, that the most recent MOC Opinion, dated 11 February 2019, is valid.  The Tribunal takes the MOC opinion to be correct.

25. Accordingly, based on the opinion of the MOC, the applicant does not satisfy public interest criterion 4005(1)(c).

26. As the applicant has not satisfied the requirements of PIC 4005, the Tribunal must affirm the decision under review.

    Secondary applicants

27. There is no information before the Tribunal that suggests any or all secondary applicants do not remain members of the primary applicant’s family unit.

28. As the primary applicant is found not to have met the prescribed criteria for the grant of the visa, the secondary applicants, as members of his family unit cannot satisfy the secondary criteria and the Tribunal must also affirm the decision to refuse their visas.

    DECISION

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

    Jennifer Cripps Watts
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    Schedule 4

    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.