Sharma (Migration) - [2024] AATA 3714

Sharma (Migration) [2024] AATA 3714 (25 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Renuka Sharma
Mr Karan Mahant
Master Riyansh Mahant
REPRESENTATIVE:  Mr Jujhar Bajwa (MARN: 0742209)
CASE NUMBER:  2318720
HOME AFFAIRS REFERENCE(S):          BCC2018/417190
MEMBER:Jade Murphy
DATE:25 September 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) visas.

Statement made on 25 September 2024 at 4:30pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) visa – Subclass 187 Regional Sponsored Migration Scheme – health criteria – Medical Officer of the Commonwealth assessment – costs to the Australian community – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65
Migration Regulations 1994, Schedule 2, cls 187.235; Schedule 4, Public Interest Criterion 4005; 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 1 November 2023 to refuse to grant the applicants Regional Employer Nomination (Permanent) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 25 January 2018. The delegate refused to grant the visa on the basis that the secondary visa applicant, Master Riyansh Mahant (DOB 24 July 2015) (‘the applicant’) did not satisfy cl 187.235 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the health criteria in public interest criterion (PIC) 4005 of Schedule 4 to the Regulations was not met.
The applicants appeared before the Tribunal on 20 September 2024 to give evidence and present arguments. It was conducted by videoconference at their request. The hearing was conducted with the assistance of a Hindi interpreter.
The applicants were represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the applicant meets 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 a medical assessment, and to be free of certain diseases or conditions that may impact on the community. The applicant in this case has been assessed with autism spectrum disorder (ASD) at a moderate level.
Is the applicant free from the relevant diseases or conditions (PIC 4005(1)(a), (b), (c))?
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.
Public interest criterion 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…

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 Sharma (Migration)

Details

AGLC: Sharma (Migration) [2024] AATA 3714
Case: [2024] AATA 3714
Decision Date: 25 September 2024

CaseChat Overview and Summary

This matter concerned an application for a Regional Employer Nomination (Permanent) visa (Subclass 187) by Mr. Sharma. The dispute before the Tribunal was whether Mr. Sharma met Public Interest Criterion (PIC) 4005, which is a health requirement for certain visa applications. The Tribunal was required to determine if Mr. Sharma was free from diseases or conditions that could pose a threat to public health, endanger the Australian community, or result in significant costs to the Australian community for healthcare or community services.

The Tribunal's reasoning focused on the interpretation and application of PIC 4005. It noted that for permanent visa applications, the exclusion provisions for certain temporary visas regarding healthcare and community services costs did not apply. The Tribunal was obliged to seek the opinion of a Medical Officer of the Commonwealth (MOC) unless specific exceptions applied, and where an MOC opinion was required, it was to be taken as correct, provided the MOC had applied the correct test. In this instance, Mr. Sharma had been assessed with autism spectrum disorder at a moderate level, necessitating an MOC opinion. The Tribunal found that an MOC opinion was required and that it must be satisfied the MOC applied the correct statutory criteria by reference to the applicant's condition.

Ultimately, the Tribunal concluded that Mr. Sharma had not satisfied the requirements of PIC 4005. As a result, the Tribunal affirmed the original decision not to grant Mr. Sharma the Regional Employer Nomination (Permanent) visa.

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 decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this review is whether the applicant meets 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 a medical assessment, and to be free of certain diseases or conditions that may impact on the community. The applicant in this case has been assessed with autism spectrum disorder (ASD) at a moderate level. Is the applicant free from the relevant diseases or conditions (PIC 4005(1)(a), (b), (c))? 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. Public interest criterion 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). As the applicant in this case has applied for a permanent visa, the exclusion provision in PIC 4005(3) does not apply. In determining whether a person meets PIC 4005(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 an MOC is required, the Tribunal must take it be correct: reg 2.25A(3).Is an MOC opinion required? On the evidence before the Tribunal, an 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 PIC 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. Primary decision record

Decision

Reasons for decision

As the applicant has not satisfied the requirements of PIC 4005, the Tribunal must affirm the decision under review.DECISION The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) visas.Jade MurphyMemberATTACHMENTMigration Regulations 1994Schedule 44005(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.

Ratio Decidendi

Legal Principle Established

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