Sarabia (Migration)

[2023] AATA 236

Sarabia (Migration) [2023] AATA 236 (6 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Mary Antonette Gumapac Sarabia
Mr Marlou Batayola Sarabia
Mr Marquel Gumapac Sarabia

REPRESENTATIVE:  Mr Nigel James Dobbie (MARN: 9370721)

CASE NUMBER:  1933424

HOME AFFAIRS REFERENCE(S):          BCC2018/906729

COUNTRY OF REFERENCE:                   Philippines

MEMBER:Penelope Hunter

DATE:6 February 2023

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 6 February 2023 at 4:45pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 Employer Nomination Scheme – health criteria – subsequent cleared assessment provided upon review – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 186.224; Schedule 4, Public Interest Criterion 4007; r 2.25

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 8 November 2019 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 26 February 2018. Ms Mary Antonette Gumapc Sarabia is the primary visa applicant (the applicant). The second and third named visa applicants have sought the visa on the basis of being a member of the family unit of the applicant. Mr Marlou Batayola Sarabia is her husband and Mr Marquel Gumpac Sarabia is their son.

3. The delegate refused to grant the visa as the applicant did not satisfy cl 186.224(2) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4007 of Schedule 4 to the Regulations was not met by a member of her family unit.

4. In light of the new evidence received, the Tribunal was able to find in favour of the applicant on the basis of the material before it and it dispensed with a hearing pursuant to s 360(2)(a) of the Act.

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

   Consideration of claims and evidence

6. The issue in this review is whether the visa applicant meets PIC 4007 as required by the criteria for the grant of the visa. PIC 4007, as it applies to this case, is extracted in the attachment to this decision. It requires that each visa 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.

7. The applicant has applied for the visa to work for the sponsoring employer Medicheck Australia Pty Ltd in the position of Registered Nurse (Medical Practice) (ANZSCO 254421). In the course of the visa applications all applicants were required to undergo a medical assessment.  In this matter, Mr Marlou Batayola Sarabia was initially assessed by a Medical Officer of the Commonwealth (MOC), on 6 May 2019, as being a person with stable chronic renal disease with renal transplant.  

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

8. Clauses 4007(1)(a) and (b) require a visa 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.

9. Clause 4007(1)(c) requires the visa 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.

10. 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.

11. As the visa applicants in this case have applied for a permanent visa, the exemption provision in PIC 4007(1B) does not apply.

12. 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?

13. Upon reviewing the material before it the Tribunal is satisfied that a MOC opinion is required.

14. An initial report from a MOC was obtained on 6 May 2019, Mr Marlou Sarabia was assessed by the MOC as not satisfying PIC 4007(1)(c)(ii)(A). This was on the basis of him being a person with stable renal disease and renal transplant who was likely to require health care or community services likely to result in a significant cost to the Australiana community.

15. The visa applicants were advised of this adverse finding and submitted further information to the Department in support of the visa application. On 6 August 2019, Mr Marlou Sarabia was again reassessed by a MOC who again found that he was a person with stable renal disease with renal transplant. Although the costings of Mr Marlou Sarabia’s conditions were reduced, the MOC again concluded that he did not satisfy PIC 4007(1)(c)(ii)(A) as he was a person who was likely to require health care of community services likely to result in a significant cost to the Australiana community.

16. The delegate in the first instance considered the opinion of the MOC and the submissions of the visa applicants. It was found that the requirements of PIC 4007(1) were not met and it was determined on 8 November 2019 not to waive those requirements. 

17. Noting that there had been changes to the Department policy regarding the costing period on 1 July 2019 and significant threshold limits on 1 September 2021 the Tribunal invited the visa applicants to obtain an updated MOC. The visa applicants accepted this invitation and also provided for consideration an updated report from Dr Shaundeep Sen, of Concord Repatriation General Hospital dated 22 November 2022. The matter was again referred for an updated medical opinion.

18. On 1 February 2023, the Tribunal received a Form 884: Opinion of a Review Medical Officer of the Commonwealth dated 31 January 2023. It recorded the opinion of the Review Medical Officer (RMOC) that Mr Marlou Sarabia had been assessed against PIC 4007 and meets the health requirement for a permanent stay in Australia. It further states that the opinion was based on available medical and radiological reports.

19. Upon review the Tribunal must have regard to the most recent assessment, which is the 31 January 2023 opinion of the RMOC. Further, as stated above pursuant to reg. 2.25A(3), the Tribunal must take the opinion of the RMOC to be correct.

20. Accordingly, based on the opinion of the RMOC, Mr Marlou Sarabia satisfies PIC 4007.Consequently it follows that in respect of the primary visa applicant PIC 4007(1) is met for the purposes of cl 186.224(2) of Schedule 2 to the Regulations.

21. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for the visas in relation to all visa applicants.

    decision

22. 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.