Udani (Migration) - [2020] AATA 3717

Udani (Migration) [2020] AATA 3717 (5 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Roberto Jr Ancheta Udani
CASE NUMBER:  1806856
DIBP REFERENCE(S):  BCC2016/3015188
COUNTRY OF REFERENCE:                   Philippines
MEMBER:Andrew George
DATE:5 July 2020
PLACE OF DECISION:  Darwin
DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) visa.

Statement made on 5 July 2020 at 8:28am

This is an application for review of a decision made by a delegate of the Minister for Immigration on 21 February 2018 to refuse to grant the applicant a Regional Employer Nomination (Permanent) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 11 September 2016. The delegate refused to grant the visa as the applicant’s son, Master Jhon Robert Esteves Udani, did not satisfy cl.187.224 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4007 of Schedule 4 to the Regulations was not met. Master Udani is not a visa applicant, but cl.187.224(3) of Schedule 2 nevertheless applies as Master Udani is a “member of the family unit”, within the meaning of cl.1.12(2)(b) of the Regulations.
The applicant appeared before the Tribunal on 26 February 2020, represented by Ward Keller. The applicant substantially relied upon a statutory declaration declared on 25 January 2020. The Tribunal also had before it a purported certificate and notification regarding disclosure of certain information under s.375A of the Act. This certificate was not signed, and the Tribunal found it was invalid.[1] In any event, the Tribunal did not consider the material covered by the certificate to be relevant.
[1] El Jejieh v MHA (No.2) [2019] FCCA 840, [23]-[25] (Judge Street).
On 28 February 2020, the Tribunal wrote to the applicant under s.359A of the Act. The Tribunal invited the applicant to comment on or respond to certain information that would, subject to the applicant’s comments or response, be the reason, or a part of the reason, for affirming the decision under review. Materially, that letter stated:
“The particulars of the information are:
· An opinion from a Medical Officer of the Commonwealth (MOC) that Master Jhon Robert Esteves Udani does not meet public interest criterion 4007(1)(c)(ii)(A). A copy of the opinion is attached.
This information is relevant to the review because a criterion for the visa (clause 187.224 in Schedule 2 to the Migration Regulations 1994) requires that Mr Roberto Jr Ancheta Udani meets public interest criterion 4007 (PIC 4007). If this criterion is not met, the visa cannot be granted and we must affirm the decision under review.
A copy of PIC 4007 and regulation 2.25A, which states that we must take an opinion of the Medical Officer of the Commonwealth to be correct, is attached.”
The Tribunal required comments or a response by 13 March 2020. On 12 March 2020, Ward Keller wrote to the Tribunal requesting “at least a two week extension” to have offshore…

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: [2020] AATA 3717
Decision Date: 5 July 2020

CaseChat Overview and Summary

This matter concerned a review by the Administrative Appeals Tribunal of a decision to refuse a Regional Employer Nomination (Permanent) visa (Subclass 187) to an applicant. The primary dispute revolved around whether the secondary applicant, Master Udani, met the health criterion stipulated by Public Interest Criterion (PIC) 4007 of the Migration Regulations 1994. Master Udani had a moderate developmental delay due to cerebral palsy stemming from birth prematurity, which was estimated to incur a significant cost to the Australian community through various services.

The Tribunal was required to determine if Master Udani was free from a disease or condition that would likely require health care or community services, the provision of which would result in significant cost to the Australian community or prejudice access for Australian citizens or permanent residents. Specifically, the Tribunal had to consider whether the estimated cost of $1,362,000 for disability and special education services met the threshold for "undue cost" as contemplated by the regulations. The Tribunal also had to consider the requirement for a Medical Officer of the Commonwealth (MOC) opinion and the weight to be given to such an opinion.

The Tribunal reasoned that PIC 4007(1)(c) applied to the applicant's situation, as the estimated costs for health and community services were substantial and would likely result in significant cost to the Australian community. The Tribunal noted that the exemption provided for temporary visas under PIC 4007(1B) did not apply to this permanent visa application. While a MOC opinion was required, the Tribunal found that the applicant had not satisfied the requirements of PIC 4007, particularly concerning the potential cost to the community. Consequently, the Tribunal concluded that clause 187.224(3) of Schedule 2 to the Regulations was not met.

Accordingly, the Administrative Appeals Tribunal affirmed the decision not to grant the Regional Employer Nomination (Permanent) visa to the applicant.

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 under review should be affirmed.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’s family unit, 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. In the present case, the Master Udani has a moderate developmental delay due to birth prematurity causing cerebral palsy. The undue cost referred to by the delegate is the estimated total cost to the community of $1,362,000. This figure is comprised of $444,000 in Commonwealth disability services, $306,000 in State disability services, and $612,000 in Special education services.Is Master Udani free from the relevant diseases or conditions (PIC 4007(1)(a), (b), (c))? Clauses 4007(1)(a) and (b) require Master Udani 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. Clause 4007(1)(c) requires Master Udani 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) would be likely to:a.result in a significant cost to the Australian community in the areas of health care and community services; orb.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 4007(1B). The requirement may also be waived in certain circumstances. As the applicant in this case has applied for a permanent visa, the exemption provision in PIC 4007(1B) does not apply. In determining whether a person meets PIC 4007(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? 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.

Decision

Reasons for decision

As the applicant has not satisfied the requirements of PIC 4007 of Schedule 4 to the Regulations, cl.187.224(3) of Schedule 2 to the Regulations is therefore not met. Accordingly, the decision under review must be affirmed.DECISION The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) visa.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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