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

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) visa – Subclass 187 Regional Sponsored Migration Scheme – health criterion for secondary applicant – member of the family unit – undue cost to the Australian community – decision under review affirmed       

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cl 187.224; Schedule 4 Public Interest Criterion 4007; rr 1.12, 2.25

CASES

Bui v MIMA (1999) 85 FCR 134
El Jejieh v MHA (No.2) [2019] FCCA 840
Ramlu v MIMIA [2005] FMCA 1735
Robinson v MIMIA (2005) 148 FCR 182

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 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).

2. 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.

3. 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).

4. 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.”

5. 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 medical examinations completed in the Philippines. Given the relevance of any such examinations to the applicant’s case, and the likely difficulties that the applicant may have faced in organising these examinations and producing reports, the Tribunal granted the applicant an extension until 30 June 2020. As at the date of the decision, no comments or response have been received by the Tribunal.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. 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))?

9. 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.

10. 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; or

    b.prejudice access of an Australian citizen or permanent resident to health care or community services.

11. 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.

12. 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?

13. 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.

14. The Tribunal has reviewed the Form 884: Opinion of a Medical Officer of the Commonwealth, dated 9 March 2017. The Tribunal is satisfied that the MOC has applied the correct test in forming the opinion. Accordingly, based on the opinion of the MOC, the applicant does not satisfy PIC 4007(1)(c)(ii)(A) of Schedule 4 to the Regulations. That is, the MOC opinion is that the provision of health care or community services would be likely to result in a significant cost to the Australian community in the areas of health care and community services.

    Should the requirements of PIC4007(1)(c) be waived?

15. 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).

16. The evaluative judgment of whether the cost to the Australian community or prejudice to others is ‘undue’ may import considerations of compassionate or other circumstances: Bui v MIMA (1999) 85 FCR 134 (‘Bui’) at 47. Over and above the consideration of the likelihood that cost or prejudice will be ‘undue’ there is also the discretionary element of the ministerial waiver. And within that discretion, compassionate circumstances or compelling circumstances may be relevant: Bui at 47. Departmental policy guidance on the exercise of this discretion is contained in the Procedures Advice Manual (‘PAM3’). Broadly speaking, these relate to: family links in Australia and the impact on family members; occupational skills of the applicant or family members; assets or factors that may mitigate the costs or prejudice to access to care or services involved; available support from family or community groups; potential contribution to Australia by the applicant or family members; the immigration history of the applicant; other compelling and compassionate circumstances including location of the applicant and family members; and any other relevant factors.

17. The Tribunal has before it a statutory declaration from the applicant dated 25 January 2020. The substance of that statutory declaration is that Master Udani is presently at school in the Philippines, where he is receiving attention for his communication difficulties. At the hearing, the Tribunal raised concerns with a sentence of the statutory declaration that said:

    “It was always my intention for my wife and child to remain back in the Philippines where we already have the support to finish his education”.

18. This did not seem consistent with an email from the applicant to the Department dated 9 December 2017 at 12:51 PM, which included the sentences:

    “My wife is always with my son to take care of him. They also want to be with me here in australia to continue the medical check up..I know ther is a better hospital or medical prosess here better from the Philippines”.

19. Following submissions regarding this inconsistency, the Tribunal notes that the review application was made on 21 February 2018 and accepts the applicant’s evidence contained in his statutory declaration as being truthful regarding his intentions from 21 February 2018.

20. A difficulty for the applicant arises in PIC 4007(1)(c)(ii), which requires the Tribunal to consider a ‘significant cost’, “… regardless of whether the heath care or community services will actually be used …”. If the Tribunal takes the applicant’s evidence at its highest point regarding his family’s intentions to remain in the Philippines, which it does, nevertheless the Tribunal must still consider the estimated total cost to the community of $1,362,000 for health care and community services regardless of whether that care or those services will actually be used.

21. The Tribunal is not assisted by the applicant’s lack of response or comments to its s.359A invitation, which allowed the applicant several months to provide further evidence and submissions to further his case. On the evidence before it, as at the date of decision, the Tribunal is not satisfied that the granting of the visa would be unlikely to result in undue cost within the terms of PIC4007(2)(b)(i). Therefore PIC 4007(1)(c) cannot be waived.

22. 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

23. The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) visa.

    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.