Shurvinton (Migration) - [2021] AATA 1207

Shurvinton (Migration) [2021] AATA 1207 (27 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr John Paul Shurvinton
Ms Jacqueline Shurvinton
Master Joshua James Shurvinton
CASE NUMBER:  1804578
HOME AFFAIRS REFERENCE(S):          BCC2016/563291
COUNTRY OF REFERENCE:                   United Kingdom
MEMBER:Andrew George
DATE:27 March 2021
PLACE OF DECISION:  Darwin
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(2)(b) for the purposes of cl 186.224(2) of Schedule 2 to the Regulations.

Statement made on 27 March 2021 at 2:34pm
CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – health criteria – severe autism spectrum disorder – MOC opinion – significant cost to the Australian community – waiver of requirement – taxpayer support not required – close ties to Australia – occupational skills and potential contribution to Australia – expert on metal 3D printing – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.25A; Schedule 2, cl 186.224; Schedule 4, PIC 4007
CASES
Bui v MIMA (1999) 85 FCR 134
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 2 February 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 8 February 2016. The delegate refused to grant the visa as Mr John Paul Shurvinton (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.
The review was heard on 5 November 2020 following a directions hearing on 13 October 2020. The applicant appeared, as did Professor Ian Smith, Professor Xinhua Wu, and Mr Barrie Finnin.
The applicants were represented by Mr Duncan on Newland Chase. Of great assistance to the Tribunal, Mr Duncan filed the following material:
a.Submissions dated 25 September 2020, with attachments A to K (the Hearing Bundle);
b.Supplementary submissions dated 6 October 2020, with attachments A to C (the Supplementary Hearing Bundle);
c.Statement from Mr Shurvinton dated 28 October 2020, with attached statement from Dr Mei of AmPro Innovations; and
d.Post-hearing submissions dated 26 November 2020.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the visa applicant meets Public Interest Criterion (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…

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.

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Details

Case: [2021] AATA 1207
Decision Date: 27 March 2021

CaseChat Overview and Summary

This matter concerned an appeal by Mr Shurvinton against a decision not to waive the health requirement for a Subclass 186 Employer Nomination (Permanent) visa. The visa applicant's son, Master Shurvinton, had been assessed by a Medical Officer of the Commonwealth as having severe autism spectrum disorder, which meant he did not satisfy Public Interest Criterion (PIC) 4007. This criterion requires applicants to be free from diseases or conditions that could result in significant costs to the Australian community through healthcare and community services. Despite a recommendation from Health Policy not to grant a waiver, the applicant provided further information, including a letter from the Victorian Government highlighting the applicant's critical role in projects with significant economic and employment potential for the state.

The primary legal issue before the Tribunal was whether the delegate had erred in refusing to waive PIC 4007(1)(c) in relation to Master Shurvinton. This involved considering whether the granting of the visa would be unlikely to result in undue cost to the Australian community or undue prejudice to the access of Australian citizens or permanent residents to healthcare or community services, as required by PIC 4007(2). The Tribunal also had to consider the weight to be given to the economic benefits and potential job creation associated with the applicant's presence in Australia, as articulated by the Victorian Government.

The Tribunal reasoned that the delegate's decision not to waive the health requirement was based on an assessment of potential significant costs to the Australian community. However, the Tribunal noted that the Skilled Waiver Submission referred to multiple MOC opinions with varying cost estimates, and crucially, it also noted the strong support from the Victorian Government. This support detailed the applicant's unique and essential role in projects with major job growth potential, arguing that the economic input from the applicant's continued presence far outweighed any potential burden from the dependent's care. The Tribunal found that the delegate had not adequately considered the evidence regarding the applicant's potential contribution to Australia and the economic benefits that would be lost if the visa were refused.

Consequently, the Tribunal remitted the application for reconsideration. The Tribunal directed that the first named applicant (Mr Shurvinton) met the criteria for the Subclass 186 visa, specifically PIC 4007(2)(b), indicating that the waiver should be granted.

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 The issue in this review is whether the visa applicant meets Public Interest Criterion (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 the 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. Materially, the delegate found:[1]On 16 August 2016, Master Shurvinton was assessed by a Medical Officer of the Commonwealth (‘MOC’) as not satisfying sub-paragraphs PIC 4007(1)(c)(ii)(A) on the basis of severe autism spectrum disorder.On 30 September 2016, Mr Shurvinton was advised of this adverse finding and provided with the opportunity to submit further information for consideration of a waiver of the health requirement.On 20 December 2016, based on new information provided, Master Shurvinton was re-assessed by a Medical Officer of the Commonwealth (‘MOC’) as not satisfying subparagraphs PIC 4007(1)(c)(ii)(A) on the basis of severe autism spectrum disorder.All the information provided by the applicant was assessed for consideration of a waiver of the health requirement.A recommendation was sought from the Director of Health Policy Section in accordance with current policy. After considering the information provided in the health waiver submission, Health Policy recommended that the health requirement not be waived in relation to Master Shurvinton.As a delegate of the Minister I have considered whether to waive the requirements of paragraph PIC 4007(1)(c). After taking into consideration the information held on file relevant to the health waiver as well as the recommendation made by Health Policy, I have decided not to waive the requirements of paragraph PIC 4007(1)(c). I am of the view that exercising a waiver in this case would be likely to result in a significant cost to the Australian community in the areas of health care and/or community services.[1] Decision Record/4. The Tribunal has sought a copy of the recommendation referred to above. From examining the Departmental File, the Tribunal is satisfied that this recommendation is the Skilled Waiver Submission (PIC 4007) dated 6 September 2017. Curiously, it refers to four opinions of a Medical Officer of the Commonwealth (‘MOC’), rather than the two outlined above. The cost contained in these opinions is as follows:[2]a.$4,117,500 (16 August 2016);b.$4,117,500 (01 November 2016);c.$4,164,000 (07 December 2016); andd.$4,026,000 (20 December 2016).[2] Skilled Waiver Submission (PIC 4007)/2. The Tribunal observes the Skilled Waiver Submission (PIC 4007) notes the support afforded to the application by the Government of the State of Victoria in a letter dated 21 April 2017. The Tribunal has located that letter on the Departmental File.[3] It states:Victoria is assisting Monash in negotiating and two further international commercial agreements with $15-30 million dollar valuations and the interest of the Victorian Government. Concluded agreements are expected later this year and are likely to lead to an initial 50 jobs. A significant number of new jobs and a potential university research partnership are expected to be created in the following three years.My Department is working closely with project leaders and understands that a failure to approve the applicant’s application would detrimentally impact the viability of the bids, and by extension, threaten the significant economic and employment outcomes Victoria stands to realise. The economic input that the applicant’s continued presence in Victoria provides, far outweighs any potential burden that the care of one of his dependents may create.An exemption can apply in circumstances where it is in the best interest of the Australian community to waive the health criteria. Given the critical role the applicant plays in existing operations, and his unique and essential role in ensuring the success of projecs with major job growth potential, I request that an exemption be given careful consideration.[3] Letter of Mr David Latina of the Victorian Department of Premier and Cabinet to the Commonwealth Department of Immigration and Border Protection, 21 April 2017.

Decision

Reasons for decision

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 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(2)(b) for the purposes of cl 186.224(2) of Schedule 2 to the Regulations.Andrew GeorgeMemberATTACHMENTMigration 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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