Simpson (Migration)

[2018] AATA 418

Simpson (Migration) [2018] AATA 418 (1 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Dereck Simpson
Mrs Joanne Kathryne Simpson
Master Liam Ray Simpson
Master Ronin Simpson

CASE NUMBER:  1621332

DIBP REFERENCE(S):  BCC2015/1823168

MEMBER:Susan Trotter

DATE:1 March 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 01 March 2018 at 6:35pm

CATCHWORDS

Migration – Employer Nomination (Permanent) (Class RN) – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – members of the family unit – Secondary applicant – Did not meet health requirements – Tribunal did not receive applicant’s comments

LEGISLATION

Migration Act 1958, ss 65, 359A, 359C, 360, 363
Migration Regulations 1994, r 2.25A Schedule 2 cls 186.235, 186.311 Schedule 4 Criteria 4005

CASES

Robinson v MIMIA (2005) 148 FCR 182
Ramlu v MIMIA [2005] FMCA 1735

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 25 November 2016 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 25 June 2015. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. The criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream. In the present case, the first named applicant, the primary visa applicant, is seeking the visa in the Direct Entry stream.

4. The delegate refused to grant the visa on the basis that the primary visa applicant did not satisfy cl.186.235 of Schedule 2 to the Regulations because the health criteria in Public Interest Criterion (‘PIC’) 4005 of Schedule 4 to the Regulations was not met as required. Specifically, a Medical Officer of the Commonwealth (MOC) had found that one of the secondary visa applicants, the fourth named applicant, did not satisfy PIC 4005(1)(c)(ii)(A) with the consequence that neither the primary visa applicant nor the secondary visa applicants met the requirements for the visas to be granted.

5. The applicants lodged an application for review of the delegate’s decision with the Tribunal on 13 December 2016.

6. The applicants were represented in relation to the review by their registered migration agent.

7. On 15 November 2017 the Tribunal wrote to the applicants inviting them to:

   (a) comment on or respond to information that it considered would be the reason, or part of the reason, for affirming the decision under review (pursuant to section 359A of the Act). In particular, the Tribunal invited the applicants to comment upon or respond to the information before it that an opinion from a MOC was that the fourth named applicant did not meet PIC 4005(1)(c)(ii)(A) as required by cl.186.235(2); and

   (b)  arrange for the Tribunal to obtain a further opinion from a MOC (inviting them to complete the relevant forms for this purpose if they wished to pursue this option).

8. The applicants responded to the Tribunal’s invitation requesting that a further opinion from a MOC be obtained.

9. On 12 February 2018, a MOC issued an opinion that the fourth named applicant did not meet PIC 4005(1)(c)(ii)(A).

10. On 14 February 2018, the Tribunal wrote to the applicants, pursuant to section 359A of the Act, inviting them to comment on or respond to information that it considered would be the reason, or part of the reason, for affirming the decision under review. In particular, the Tribunal invited the applicants to comment upon or respond to the information before it that an opinion from a MOC dated 12 February 2018 was that the fourth named applicant did not meet PIC 4005(1)(c)(ii)(A) as required by cl.186.235. Copies of the MOC opinion (dated 12 February 2018), PIC 4005 and regulation 2.25A were included to facilitate the applicants’ response.

11. The invitation was sent to the applicants’ nominated authorised recipient, their registered migration agent, at the address last provided in connection with the review, being the recipient’s email address as advised to the Tribunal and the address to which the 15 November 2017 invitation had also been sent, and to which a response had been received by the Tribunal. The applicants were advised that, if the Tribunal did not receive their comments or response by 28 February 2018, and no extension of time had been granted, the Tribunal may make a decision on the review without taking further steps to obtain the applicants’ views on the information. Further, the invitation stated that the applicants might also lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

12. The Tribunal did not receive a response to its letter of 14 February 2018 within the prescribed time for responding to the statutory invitation, nor was an extension of time sought within which to respond. As the applicants failed to provide written comments or a response within the prescribed time, subsection 359C(2) of the Act applies and the Tribunal may make a decision on the review without taking any further action to obtain the applicants’ views on the information.

13. Further, as subsection 359C(2) of the Act applies to the applicants, they lose any entitlement to appear before the Tribunal to give evidence and present arguments relating to the issues in the review: subsection 360(3) of the Act.

14. The Tribunal has decided to proceed to make a decision on this review without taking any further action to obtain the applicants’ views on the information particularised. The applicants have been given a reasonable opportunity and ample time to do so and have not done so, and further, have had the benefit of representation from a registered migration agent whom it would be reasonable to expect has an understanding of the requirements of the legislation and the implications of the invitation the Tribunal sent on 14 February 2018. The Tribunal therefore does not propose to exercise its powers under subparagraph 363(1)(b) of the Act in the applicants’ favour to adjourn the review and postpone its decision-making any further to allow them additional time.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. Clause 186.235 requires an applicant, and each member of their family unit to satisfy PIC 4005.

17. PIC 4005, as it applies to this case, is extracted in the attachment to this decision. It requires an applicant, in certain circumstances, to undergo medical assessment, and to be free of certain diseases or conditions that may impact on the community.

18. PIC 4005(1)(a) and (b) require an applicant to be free from tuberculosis and free from a disease or condition that is, or may result in an applicant being, a threat to public health in Australia or a danger to the Australian community.

19. PIC 4005(1)(c) requires an 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 service are excluded from this consideration: PIC 4005(3).

20. As the applicants in this case have applied for permanent visas, the exclusion provision in PIC 4005(3) does not apply.

21. In determining whether a person meets PIC 4005(1)(a), (b) or (c), r.2.25A requires that an opinion of a MOC be sought 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).

22. 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 be 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.

23. In this case a MOC provided an opinion on 2 March 2016 and again on 11 May 2016 that the fourth named applicant, the applicant’s son and a member of his family unit, did not meet the requirements of PIC 4005(1)(c)(ii)(A). At the applicants’ request a further updated MOC opinion was arranged and again on 12 February 2018 a MOC concluded that the fourth named applicant did not meet the requirements of PIC 4005(1)(c)(ii)(A).

24. The Tribunal notes that the MOC opinion of 12 February 2018 states that the fourth named applicant has been assessed against PIC 4005 for the period of a permanent stay in Australia. This is the correct period in relation to the visa for which the applicants have applied. The Tribunal is satisfied the MOC opinion identifies the medical condition to which PIC 4005 has been applied, and the form or level of the conditions suffered by the fourth named applicant. The Tribunal is also satisfied the MOC applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition. The Tribunal is therefore satisfied that the MOC’s opinion is a valid opinion.

25. Accordingly, based on the opinion of the MOC, the fourth named applicant does not satisfy PIC 4005(1)(c)(ii)(A), and therefore the primary visa applicant does not meet cl.186.235(2), and therefore cl.186.235, of Schedule 2 to the Regulations.

26. The primary visa applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Direct Entry stream. No claims have been made in respect of the other visa streams.

27. As a result, given the above findings, the Tribunal finds that the primary visa applicant does not satisfy the primary criteria for the grant of a Subclass 186 visa in the Direct Entry, Agreement or Temporary Residence Transition streams.

28. Accordingly, as the primary visa applicant does not satisfy the primary criteria for the grant of a Subclass 186 visa, the Tribunal finds that the secondary visa applicants do not meet the requirements of clause 186.311 which requires, amongst other things that they are each a member of the family unit of a person who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the visa. Therefore, the Tribunal finds that the secondary visa applicants also fail to meet the criteria for the grant of Subclass 186 visas.

29. As a result, given the above findings, the Tribunal must affirm the decision under review.

    DECISION

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

    Susan Trotter
    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.