Shurvinton (Migration)
[2021] AATA 1207
•27 March 2021
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 ShurvintonCASE 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 remittedLEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.25A; Schedule 2, cl 186.224; Schedule 4, PIC 4007CASES
Bui v MIMA (1999) 85 FCR 134
Ramlu v MIMIA [2005] FMCA 1735
Robinson v MIMIA (2005) 148 FCR 182STATEMENT 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 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); and
d.$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.
This letter was “noted” and “some weight” placed upon it in the recommendation,[4] although not directly referred to in the delegate’s decision.
[4] Skilled Waiver Submission (PIC 4007)/13.
Is the applicant free from the relevant diseases or conditions (PIC 4007(1)(a), (b), (c))?
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. These factors are not live issues in this review.
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:
a.result in a significant cost to the Australian community in the areas of health care and community services; or
b.prejudice access of an Australian citizen or permanent resident to health care or community services.
Prejudice of access is not a live issue in this review.
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?
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.
The Tribunal has before it the MOC opinion dated 20 December 2016. It is now dated. The MOC opinion states that Master Shurvinton is an 11-year-old with severe autism spectrum disorder. The MOC opinion describes Master Shurvinton’s condition as being severe, permanent, and requiring of assistance. It states that a hypothetical person with the same condition and severity would be likely to require health and community services that would result in a significant cost to the Australian community.
The Tribunal expresses reservations about the MOC opinion of 20 December 2016, particularly given its age and the fact that Master Shurvinton is now aged 16 years. Nevertheless, the test for the Tribunal is whether the MOC opinion is valid within the Regulations and the Tribunal concludes that it is. Therefore, the Tribunal must take it to be correct.
Accordingly, based on the opinion of the MOC, the applicant does not satisfy PIC 4007(1)(c).
Should the requirements of PIC4007(1)(c) be waived?
The requirement in PIC 4007(1)(c) to be free of a disease or condition that would impact on health or community services, may be waived if among other things, the decision maker is satisfied that the granting of the visa would be unlikely to result in either ‘undue cost’ to the Australian community or ‘undue prejudice’ to the access to health care or community services of an Australian citizen or permanent resident: 4007(2).
The seminal authority for the Tribunal to consider is Bui v MIMA (1999) 85 FCR 134, where French, North and Merkel JJ found at [47]:
The evaluative judgment whether the cost to the Australian community of prejudice to others, if the visa is granted, is “undue” may import consideration of compassionate or other circumstances. It may be to Australia’s benefit in moral or other terms to admit a person even though it could be anticipated that such a person will make some significant call upon health and community services. There may be circumstances of a “compelling” character, not included in the “compassionate” category that mandate such an outcome. But over and above the consideration of the likelihood that cost or prejudice will be “undue” there is the discretionary element of the ministerial waiver. And within that discretion compassionate circumstances or the more widely expressed “compelling circumstances” may properly have a part to play.
Departmental policy also provides guidance on factors that may be relevant, including:
·close family, social, emotional and community ties to Australia;
·occupational skills of the applicant or family members; and
·the potential contribution to Australia by the applicant or family members.
Much of Mr Shurvinton’s evidence is contained in his witness statement, although he was able to expand upon aspects of that statement in his oral evidence. Mr Shurvinton’s evidence is that his family have lived in Melbourne since January 2012. Master Shurvinton commenced at the Monash Special Development School in February 2012. The Shurvinton family are relatively wealthy,[5] substantially due to savings and shareholdings in Amaero International and AmPro Innovations. These are two ‘spin-off’ companies from research at Monash University with which Mr Shurvinton has been involved.
[5] Hearing Bundle/45-93.
Mr Shurvinton’s evidence is that his family receives no taxpayer support for Master Shurvinton and, indeed, that Master Shurvinton is very independent. This evidence is consistent with the paediatric evidence from Dr Sarah Jame at Monash Children’s Hospital. Dr Jame has consulted with Master Shurvinton since 2015 and says:[6]
Joshua continues to make steady progress with his independence, communication skills and social skills. He is now independent with his activities of daily living and making great progress. He is interested in learning to cook and eating healthy foods. He is learning to launder clothes. He has been able to participate in special needs basketball and long team bike rides.
I am confident that with adequate support and training that Joshua will be able to manage structured employment in adulthood and be independent with self care.
Joshua is wary of new people and situations due to his autism. He takes a long time to warm up to conversing with strangers. Joshua has only started having spontaneously initiated and reciprocal conversation with me in the last 2 years.
[6] ibid/74-75.
The Tribunal notes that Dr Mei of AmProm Innovations says that company would consider Master Shurvinton for a traineeship in due course, and that Master Shurvinton is already a frequent visitor to the company.
Mr Shurvinton’s evidence is that the family feels at home in Australia after almost a decade and, indeed, Australia is now Master Shurvinton’s home. The Tribunal accepts Mr Shurvinton’s evidence. The Tribunal is conscious that Master Shurvinton has lived in Victoria for many of his formative years, where he has made steady progress. Accordingly, the Tribunal is satisfied that the Shurvinton family has close ties to Australia. It weighs upon the Tribunal that Master Shurvinton – an adolescent who is “wary of new people and situations” – now has closer ties to Australia than the United Kingdom. This circumstance evokes compassion.
There is a wealth of documentary and oral evidence before the Tribunal regarding Mr Shurvinton’s occupational skills and his potential contribution to Australia. The Tribunal respects that this evidence was provided to it openly by the witnesses for the purposes of the hearing, although much of it is commercial-in-confidence.
Professor Smith is the Vice-Provost (Research and Research Infrastructure) at Monash University. His evidence is that Mr Shurvinton brings to Australia a series of skills in 3D printing processes that are extremely rare. Indeed, Mr Shurvinton’s work is “absolutely critical” to the ongoing success of the university in its extensive work in this area, which has created millions of dollars of investment. The Tribunal accepts Professor Smith’s evidence.
Professor Wu is Monash University’s Pro-Vice Chancellor (Precinct Partnerships) and Director of Monash International Advanced Manufacturing Hub. Professor Wu has been collaborating with Mr Shurvinton for 20 years since their time at the University of Birmingham and, indeed, Mr Shurvinton followed Professor Wu to Australia. Their families are long-term friends. Professor Wu’s evidence is to the effect that Mr Shurvinton is one of the world’s top experts, and possibly the top expert, on metal 3D printing. Mr Shurvinton operates machines worth in excess of $10 million and carries out research worth more than $50 million. He is also a valued member of the university community, as evidenced by a petition.[7] The Tribunal notes that this petition contains numerous comments from 26 colleagues regarding Mr Shurvinton’s unique skills that contribute significant benefits to Australia. The Tribunal accepts Professor Wu’s evidence.
[7] ibid/15-36
Mr Finnin is the Chief Executive Officer of Amaero International, which is a publicly listed company with operations in Australia and the United States. Mr Shurvinton provides support to Amaero through the Monash Centre for Additive Manufacturing (‘MCAM’). Indeed, Amaero was formerly completely dependent upon MCAM in grown its base of commercial clients. Mr Shurvinton has previously been described as a “single point of failure” for Amaero should his skill set have become unavailable to the company, particularly since the introduction of international COVID-19 travel restrictions. It is unnecessary to detail the commercial-in-confidence operations of Amaero, suffice that that Tribunal is satisfied that tens of millions of dollars ride on the success of the projects upon which Mr Shurvinton is engaged. The Tribunal accepts Mr Finnin’s evidence.
The Tribunal notes a letter before it from Professor Margaret Gardner AC, the President and Vice-Chancellor of Monash University, dated 14 December 2018.[8] A material part of Professor Gardner’s letter is that:
John was recruited to Australia because of his skills in 3D light metal printing are unique in Monash and Australia, and rare in the world. Losing his skills would seriously negatively impact on Australia’s opportunity to create and build this new high technology industry.
[8] ibid/13-14.
The Tribunal accepts Professor Gardner’s evidence.
On the evidence before it, the Tribunal is satisfied that Mr Shurvinton brings to Australia rare occupational skills in the field of 3D printing. These skills, in turn, bring substantial investment. The Tribunal notes that the evidence of the witnesses is consistent with the letter of support from the Government of the State of Victoria of 21 April 2017. The Tribunal places significant weight on that letter, where the evidence before it is consistent with the letter’s prediction that “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”. This circumstance is compelling.
For these reasons, the Tribunal is satisfied that the granting of the visa would be unlikely to result in undue cost or undue prejudice within the terms of PIC4007(2)(b). Therefore PIC 4007(1)(c) may be waived subject to the applicant satisfying all other requirements for the visa. In so finding, the Tribunal accepts Mr Duncan’s submissions that the quantum of the waiver is substantial but not unprecedented.[9]
[9] 1515273 (Migration) [2019] AATA 5195, [46], [48], [53] (Member Burnett-Wake).
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 George
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.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Remedies
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Statutory Construction
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