Singh (Migration)

[2019] AATA 2807

Singh (Migration) [2019] AATA 2807 (25 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr KAMALJEET SINGH

CASE NUMBER:  1716439

DIBP REFERENCE(S):  BCC2016/3446160

MEMBER:Mr S Norman

DATE:25 February 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Regional Employer Nomination (Permanent) visa for reconsideration, with the direction that the applicant satisfies cl.187.235(3) of the Regulations.

Statement made on 25 February 2019 at 1:05pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – health criteria – must also be satisfied by non-migration family members – non-migrating sister disabled – applicant’s status as eldest son – responsibility of caring for family in the future – whether he is head of the family – disabled sister  presently not a dependant – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65,
Migration Regulations 1994, Schedule 2, cls 187.223, 187.235(3), 187.242, Schedule 4, Public Interest Criterion 4005, rr 1.05A(1), 1.12, 2.25A

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 24 July 2017 to refuse to grant the applicant a Subclass 187 Regional Employer Nomination (Permanent) visa under s.65 of the Migration Act 1958 (the Act). The Department delegate’s decision was lodged with the Tribunal.

2. The applicant applied for the visa on 17 October 2016. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.187.235(3) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4005 of Schedule 4 to the Regulations was not met.

3. The applicant appeared before the Tribunal on 21 February 2019 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. Clause 187.235 and PIC 4005(1)(a) and (b) require that an applicant (and members of their family unit) 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.

6. Public interest criterion 4005(1)(c) requires the applicant (and members of their family unit) 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 or members of their family unit) 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). As the applicant in this case has applied for a permanent visa, the exclusion provision in PIC 4005(3) does not apply.

7. In determining whether a person meets PIC 4005(1)(a), (b) or (c), r.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: r.2.25A(3).

   Is a MOC opinion required?

8. Clause 187.235 of Schedule 2 of the Migration Regulations stated:

   187.235  

   (1)The applicant satisfies public interest criterion 4005.  

   (2) Each member of the family unit of the applicant who is an applicant for a Subclass 187 visa satisfies public interest criterion 4005.  

   (3) Each member of the family unit of the applicant who is not an applicant for a Subclass 187 visa satisfies public interest criterion 4005 unless it would be unreasonable to require the member to undergo assessment in relation to the criterion.

9. As noted above, PIC 4005 is set out in the attachment.

10. In their decision record, the delegate said the MOC assessed whether Bajinder KAUR (the applicant’s sister – who was a non-migrating family member) met PIC 4005. On 15 May 2017, the MOC determined that Bajinder KAUR did not meet the PIC 4005. That finding was based on available medical and radiological reports. Therefore, the applicant may not satisfy PIC 4005 (1)(c)(ii)(A) in Schedule 4 of the Migration Regulations.

11. By (the former) migration agent’s submission dated 13 June 2017, it was stated:

    … Regretfully, I would like to inform you that while completing the visa application electronically for my client, I inadvertently ticked ‘yes’ to the question ‘does the applicant have any dependent family members not travelling to Australia who are not Australian citizens or Australian permanent residents?’ and also in the subsequent correspondence the error had occurred. The correct information to this question is ‘no’. As such, Bajinder KAUR (DOB 2 February 1990) and the rest of the family members [are] not migrating to Australia. I regret that this information should have been provided under the question ‘other’ on the electronic form.

    …..

    I would like to state that this is a genuine error and oversight on my part and I sincerely regret the issue this has caused to the Department and the applicant. … I kindly request that you consider the [visa] application in light of this explanation and continue to process the application.

    To demonstrate rectifying this error, I emailed regarding this error on [inter alia] 17 October 2016 and also 22 November 2016 [and 1 May 2017] and also clarified medical examination for non-migrating family members.

12. In their decision however, the delegate recorded that if the agent had inadvertently clicked ‘yes’ in regards to non-migrating family members, then this mistake would have become evident as he continued the application process by adding each of the non-migrating family members names and details on the application. If there was no intention of adding family members to the application as non-migrating, then this process would have prompted the migration agent to realise the error.

13. Though further discussion was set out in their decision, the delegate was ultimately satisfied the applicant’s sister was a member of his family unit. The delegate then said that as set out in cl.187.235, all members of the family unit, whether migrating or not, must satisfy the health requirement in PIC 4005. However, as Bajinder KAUR did not meet the requirements set out in PIC 4005, the visa applicant did not satisfy cl.187.235(3). Therefore, the applicant did not meet cl.187.235.

14. After discussing same, and then finding that clauses 187.235, 187.223 & 187.242 were not satisfied, the delegate refused to grant the applicant a Regional Sponsored Migration Scheme (subclass 187) visa.

15. By letter dated 9 November 2018,[1] the Tribunal provided the applicant with an opportunity to provide further medical evidence and/or provide a further opinion. To the Tribunal, the agent then issued an email dated 16 November 2018.[2] In that email it was claimed:

    ·     it is clear from the decision to refuse the applicant’s Subclass 87 visa that the (prior) agent lodged the application and inadvertently added non-migrating family members as dependents to the applicant’s Subclass 187 visa application

    ·     upon realising this error, that agent emailed the Department to acknowledge his error and he made it clear the applicant was the only applicant for the visa and that there were no other family members to be included as part of the visa application (migrating or non-migrating)

    ·     despite the agent’s mistake and his emails to the delegate, the delegate still proceeded to refuse the visa application on the basis of the family member (Baljinder KAUR) not passing the health test

    ·     the applicant wished to make it clear he is the sole visa applicant and no other persons are to be included in his application. He has no dependent family members

    ·     consequently, the applicant does not wish to seek a second medical opinion in relation to Baljinder KAUR as she is not part of his Subclass 187 visa application and her inclusion as a non-migrating family member was a mistake of the then agent

    ·     the Tribunal was then asked to find that the inclusion of Baljinder KAUR in the applicant’s visa application was an error on the part of the applicants prior migration agent and given the agent’s explanation that her inclusion was an error on his part, the appropriate action is for the Tribunal to proceed to consider whether the review applicant is the sole visa applicant and there are no other members of the family unit to be considered.

    [1] Tribunal – folio 19.

    [2] Tribunal – folio 22.

16. By migration agent submissions lodged 19 February 2019,[3] and by undated written statement,[4] the applicant claimed (in part):

    [3] Tribunal – from folio 49.

    [4] Tribunal – from folio 46.

    ·the visa application was lodged on 17 October 2016

    ·that upon realising his family members needed to complete medical assessments he contacted his agent and discovered the agent had made an error when lodging the visa application

    ·one month later (22 November 2016), the agent sent an email to the Department requesting that the non-migrating family members be exempt from the application as they had no intention of travelling to Australia

    ·on 1 May 2017 the agent again requested the non-migrating family members be exempted from the visa application as they had no intention to travel to Australia

    ·on 31 May 2015 the agent received an email from a Department delegate advising that one non-migrating family member did not meet the health requirement for the visa

    ·on 18 June 2017, the applicant submitted a Form 1023 by his migration agent attempting to ‘correct the mistake’

    ·on 3 October 2017 the applicant filed a complaint with the Office of the Migration Agents Registration Authority regarding the former migration agent – as that agent listed all family members on the visa application[5]

    ·It was claimed that changes on 19 November 2016, narrowed the definition of dependency in the regulations

    ·It was claimed that no evidence of dependency was provided with the visa application

    ·it was claimed that r.1.05A(1) defines dependency and that in the context of non-refugee and humanitarian visa applications, the only ground for claiming dependency is ‘reliance on the other person’ for financial support.

    ·It was then claimed the prior agent incorrectly answered relevant questions; the agent attempted to rectify the situation; that the applicant’s parents and two sisters are not dependents (which ‘under policy is usually taken to be a period of at least 12 months’[6]) and therefore could not be members of his family unit and did not meet r.1.05(A)(1); the applicant’s father is 54 years of age and his mother is 52 years of age and both are still working full-time jobs; his younger sister is aged 14 years and is a full-time student and his older sister is 29 years and has had a disability all her life; it was said that none are dependent on the applicant

    ·It was then said if the Tribunal is satisfied with the submission it should remit the matter for reconsideration; or if not satisfied it should find that it would be unreasonable to require the three non-migrating members of the family unit to undergo medical assessments as required by cl.187.235(3).

    ·The applicant also lodged further evidence which the Tribunal has considered prior to drafting its decision. This included references to prior Tribunal decisions where medical assessments were not required in the case where grandparents had legally adopted the child of a visa applicant;[7] and where it was considered unlikely that the non-migrating family member/s would wish to travel to Australia.[8]

    [5] Tribunal – folio 33 (reverse side)

    [6] Tribunal – folio 45.

    [7] Tribunal – folio 45.

    [8] Tribunal – from folio 45 (especially the reverse side).

17. The Tribunal notes that the mere fact an applicant may include a non-migrating sibling in their visa application, this is not conclusive of whether the applicant is a ‘family head’, or whether that sibling is a member of their family unit, for the purposes of the Migration Regulations. Member of the family unit is provided for in r.1.12. That stated:

    Reg 1.12 Member of the family unit

    (1)  For the definition of member of the family unit in subsection 5(1) of the Act, and subject to subregulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this subregulation called the family head) if the person is:

    (a)  a spouse or de facto partner of the family head; or

    (b)  a dependent child of the family head or of a spouse or de facto partner of the family head; or

    (c)  a dependent child of a dependent child of the family head or of a spouse or de facto partner of the family head; or 

    (e)  a relative of the family head or of a spouse or de facto partner of the family head who:

    (i)  does not have a spouse or de facto partner; and
    (ii)  is usually resident in the family head's household; and
    (iii)  is dependent on the family head.

    (2)  A person is a member of the family unit of an applicant for a Student (Temporary) (Class TU) visa if the person is:

    (a)  a spouse or de facto partner of the applicant; or

    (b)  a dependent child of the applicant, or of that spouse or de facto partner, who is unmarried and has not turned 18.

18. The term ‘dependent child’ (as set out above) is defined in r.1.03. That provides that a dependent child may be inter alia over 18 years of age, but it none-the-less requires that there exists a (words to the effect) parental relationship (ie see the definition of ‘Child’ in s.5CA of the Act). Based on the evidence before it, as set out below, the Tribunal is not satisfied the applicant’s elder sister could be determined to be a dependent child of the applicant.

19. Possibly more relevant, is that r.1.12(1)(e) provides that the member of the family unit is a relative of the family head, who does not have a spouse, is usually resident in the family head’s home, and who is dependent on the family head. Dependent has been defined as follows:

    Reg. 1.05A – Dependent

    (1)  Subject to subregulation (2), a person (the first person) is dependent on another person if:

    (a)  at the time when it is necessary to establish whether the first person is dependent on the other person:

    (i)  the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person  for financial support to meet the first person’s basic needs for food, clothing and shelter; and
    (ii)  the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or

    (b)  the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions. …

20. At hearing, the applicant’s agent suggested the Tribunal had (words to the effect) tested the applicant’s evidence rigorously. However, the Tribunal notes that a ‘person conducting inquisitorial proceedings will necessarily have to test the evidence presented – often vigorously … [and that] similar questions by a judge in curial proceedings …may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings’.[9] Be that as it may, the Tribunal does not believe it precluded the applicant from obtaining a real opportunity to put evidence and submissions, including at the hearing.

    [9] Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 (24 May 2001) Gleeson CJ, Gaudron & Gummow JJ, per the Court [30 – 31].

21. When then discussed at hearing, the now 25 year old applicant said he had travelled to Australia in November 2013 (at which time he was 20 years old), and he said he had completed a Certificate III, a Certificate IV, a Diploma and an Advanced Diploma in automotive studies. He had obtained some work from early 2016 with an auto-mechanic in Griffith, and he had commenced full time work with that employer in May 2017.

22. The applicant said his father worked as a teacher at a local private primary school in a large village in the Punjab from 2015 (being the owner/operator – “Chairman” - of that 370 pupil primary school prior to that time). The applicant said that from around 2015, his mother had taken over the Chairperson role at the same school (having principally focussed on house work prior to that time). The applicant said that his father also owned/operated a small farm. The applicant said his siblings (sisters) both continued to reside with his parents and the parents looked after his sisters; and after discussing same, the Tribunal accepts this is correct. Further, the applicant said his parents funded his studies in Australia; and after discussing same, the Tribunal also accepts this is correct.

23. At hearing, the Tribunal noted that sons (and particularly first born sons[10]) may be favoured in India, and that the monies paid by his parents (for his education in Australia) would presumably be an investment in him and also it may be an investment in their own future (as he would at least in part, care for them in future). The applicant and his agent said (words to the effect) the blanket imposition of a custom of this sought was not appropriate. As stated at hearing, the Tribunal accepted this is correct. The applicant said his parents had their own lives, and though not married, he was focussed solely on his own future. After considering same, and given the assistance of his parents, and the fact the applicant may likely inherit his family farm in India, the Tribunal does not accept it is plausible the applicant would not (at least in future), assist his family in India. However, and without more, this has not satisfied the Tribunal the sister is a dependent and the applicant is (ie) ‘the family head’ for the purposes of r.1.12(1)(e) of the Regulations.

    [10] See ‘Favouring firstborn sons’, The Indian Express, 21 February 2019, ; ‘Where Have India's Females Gone?’, Pulitzer Center, 11 September 2013, accessed 21 February 2019; ‘Why is there a preference for a son over a daughter in India? What are the best responses to someone feeling sympathy for the birth of your daughter?’, Quora 16 March 2016, accessed 21 February 2019.

24. Next, when asked at hearing the applicant said he had not remitted any monies to his family in India, and given their capacity to fund his studies in Australia, and given that both parents still work full time (which the Tribunal accepts), the Tribunal accepts this is plausible. I also accept the applicant’s sisters are wholly or substantially reliant on their parents for financial support to meet their basic needs for food, clothing and shelter.

1. Therefore, and with respect to r.1.12(1)(e), as confirmed at hearing the applicant’s elder disabled sister does not have a spouse or de facto partner (and therefore meets r.1.12(1)(e)(i); but she is not usually resident in the applicant’s home (and therefore does not meet r.1.12(1)(e)(ii)); and based on the accepted claims herein (including those discussed below), she is not a dependent on the applicant (and therefore does not meet r.1.12(1)(e)(iii)).

2. Next, the Tribunal understands that Department guidelines indicate that non-migrating family members are not ordinarily required to complete health examinations, but circumstances where it may be reasonable to require an examination may include:

   ·where the non-migrating family member is a young child remaining in their country of origin without parental support;

   ·where the non-migrating family member is remaining in their country of origin where there is ongoing conflict and [in]stability; or

   ·where there is evidence that the non-migrating family member will ultimately seek to migrate to Australia.[11]

   [11] PAM3 – Migration Regulations Sch4 - 4005-4007 - The health PIC -Sch4/4005-4007 - The health requirement -Health Waivers – Non-migrating family members (re-issued 18/11/2017).

3. In the present case, the applicant’s parents are aged in their mid-50’s and said to be in ‘good health’. There will possibly come a time when they are no longer capable of caring for their 29 year old disabled daughter, and the applicant said this responsibility would then fall to government and non-government organisations. However, and as stated at hearing, the country information considered by the Tribunal indicated high levels of gender violence in India (including for single females[12]) and that women with disabilities are particularly vulnerable to such violence.[13] The applicant felt that gender violence existed in most if not all countries (which the Tribunal accepts) and that he had (words to the effect) no ongoing responsibility for his elder disabled sister and that she would be cared for by government or non-government organisations. After then considering the accepted evidence, the Tribunal believes the elder disabled sister may eventually be without parental or similar support, and she might subsequently be said to have claims relating to protection.

   [12] See DFAT COUNTRY INFORMATION REPORT INDIA, 17 October 2018, ‘Women’, from p.17.

   [13] See ‘Women with disabilities: India's 'invisible victims'’, News India, 4 April 2018, accessed 21 February 2019.

4. However, and irrespective of same, the Tribunal notes that even if it were to find that the applicant may become ‘the family head’ at some future time (for the purposes of the Regulations), and the elder disabled sister then became dependent on him, ‘dependency’ as defined in r.1.05A(1)(a), requires that it be assessed at the time when it is necessary to establish whether (in this case) the applicant’s sister is dependent on the applicant. The Tribunal understands that cl.187.235(3) of Schedule 2 of the Migration Regulations is something that needs to be decided at the time of its decision. Thus given the evidence presently before the Tribunal, and given the findings made, I am not satisfied the applicant’s sister is presently dependent on the applicant, or a member of the family unit of the applicant, for the purposes of cl.187.235.

5. On the basis of these findings, a MOC opinion for the applicant’s disabled elder sister (Bajinder KAUR) is not required. That is because, as stated above, I am not satisfied she is a member of the applicant’s family unit.

6. Given the findings above, the appropriate course is for the Tribunal to remit the matter to the Minister for reconsideration of the remaining criteria for the visa.

   DECISION

7. The Tribunal remits the application for a Regional Employer Nomination (Permanent) visa for reconsideration, with the direction that the applicant satisfies cl.187.235(3) of the Regulations.

   Mr S Norman
   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.