Winoto (Migration) - [2024] AATA 138

Winoto (Migration) [2024] AATA 138 (5 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Jemmy Siswanto Winoto
Ms Isabella Setiawati
Miss Karen Winoto
Miss Nicole Winoto
CASE NUMBER:  2117796
HOME AFFAIRS REFERENCE(S):          B2019/6493556
MEMBER:Karen McNamara
DATE:5 January 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the first named applicant a Business Skills (Provisional) (class EB) visa.
·   The Tribunal does not have jurisdiction in this matter in relation to the second, third and fourth named applicants.

Statement made on 05 January 2024 at 5:44pm
CATCHWORDS
MIGRATION – Business Skills (Provisional) (Class EB) visa – Subclass 188 (Business Innovation and Investment (Provisional)) – health criteria – invitation to obtain a further opinion of a Medical Officer of the Commonwealth (MOC) – severe chronic renal disease – significant cost to the Australian community – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360
Migration Regulations 1994 (Cth), r 2.25A; Schedule 2, cls 188.249, 188.311; Schedule 4, PIC 4005
CASES
Ramlu v MIMIA [2005] FMCA 1735
Robinson v MIMIA (2005) 148 FCR 182
STATEMENT 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 9 November 2021, to refuse to grant the applicants Business Skills (Provisional) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 5 December 2019. On 9 November 2021, the delegate refused to grant the visas on the basis that Mr Jemmy Siswanto Winoto (now referred to as the first named applicant) did not satisfy cl 188.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4005 of Schedule 4 to the Regulations was not met.
The delegate also found that the second named applicant, Ms Isabella Setiawati, third named applicant, Miss Karen Winoto and fourth named applicant Miss Nicole Winoto could not be granted a Subclass 188 visa, as they did not meet the secondary visa criterion (cl.188.311), requiring them to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 188 visa.
The applicants lodged an application for review with the Tribunal on 29 November 2021. The review application was accompanied by a copy of the delegate’s decision.
On 8 February 2022, the Tribunal wrote to the applicants (dispatched by email to the authorised recipient/representative), noting that the applicants had departed Australia and sought confirmation as to whether they wished to continue with their application for review.
On 11 March 2022, the Tribunal further wrote to the applicants (dispatched by email to the authorised recipient/representative) affording opportunity for a further opinion to be obtained from a Medical Officer of the Commonwealth. The email was accompanied by “Request For A Further Opinion From A Medical Officer Of The Commonwealth - MR Division form and requested the applicant…

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.

Continue reading Winoto (Migration)

Details

AGLC: Winoto (Migration) [2024] AATA 138
Case: [2024] AATA 138
Decision Date: 5 January 2024

CaseChat Overview and Summary

This matter concerned an application for a Business Skills (Provisional) (Class EB) visa, subclass 188, by an Indonesian citizen. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant met Public Interest Criterion (PIC) 4005, which mandates that applicants be free from certain diseases or conditions that could pose a threat to public health or result in significant costs to the Australian community. The applicant had been diagnosed with severe chronic renal disease, progressing to stage 5, and associated complications.

The central legal issue before the Tribunal was whether the applicant's medical condition constituted a disease or condition that would likely require significant health care or community services, thereby resulting in a substantial cost to the Australian community or prejudicing access for Australian citizens and permanent residents. This assessment was to be made against the requirements of PIC 4005(1)(c)(ii)(A) and (B) of the Migration Regulations 1994. The Tribunal considered extensive medical reports, including specialist opinions from nephrologists, laboratory results, and correspondence between various parties.

The Tribunal's reasoning focused on the applicant's diagnosed chronic kidney disease, which had progressed to a severe stage requiring ongoing and significant medical intervention. Based on the medical evidence, the Tribunal concluded that the applicant's condition would likely necessitate substantial health care and community services, leading to a significant cost to the Australian community. Consequently, the Tribunal found that the applicant did not satisfy PIC 4005.

As the applicant failed to meet the requirements of PIC 4005, the Tribunal affirmed the decision not to grant the visa. The Tribunal also noted that it lacked jurisdiction concerning other named applicants.

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 decision 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) 4005 as required by the criteria for the grant of the visa. Public Interest Criterion 4005, 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. The applicant in this case is a 50-year-old citizen of Indonesia. At the time of application, the applicant was 46 years old. A report from the MOC dated 15 December 2023 was provided to the Tribunal. This report considered the information available to date concerning the applicant, including but not limited to;·Immigration medical examinations dated 25 March 2021·Laboratory reports including serum creatinine results dated 25 Mar 2021, 19 Oct 2022 & 22 Jul 2023·Renal ultrasound report dated 2 Nov 2022 ·Specialist reports from Nephrologist Dr Maria Riastuti lryaningrum dated 13 Apr 2021, 8 Nov 2022 & 22 Jul 2023;·Specialist reports from Nephrologist Dr Lye Wai Choong & Dr Lingga Ramot Gumelar dated 15 Jul 2021 & 6 Sep 2023 respectively ·Letters from migration agent (lnvestOZ) dated 2 Aug 2021, 20 Mar 2022 & 6,12 Sep 2023·Tax invoices from centre for kidney diseases Pte Ltd dated from 2 Apr 2018 to 15 Jul 2021 ·Undated non-English documents from AXA Financial ·Reference letter from PT AXA Financial Indonesia dated 31 Aug 2023 (for health insurance cover) ·Document from Assist card dated 31 Aug 2023 (assumed for travel insurance)·Copy of email correspondences between the Department of Home Affairs (dated 9 Nov 2021), AAT (dated 8, 20, 29 Apr 2022, 14,15 Jul 2022, 21 Aug 2023, 6,7,12 Sep 2023, 25,27 Oct 2023, 8,9,23,27 Nov 2023) and migration agent (lnvestOZ) ·Form 884 Opinion of a Medical Officer of the Commonwealth from Bupa medical Visa Services dated 14 April 2021 and 9 September 2021·Decision record from the Department of Home Affairs dated 9 November 2021·Documents for Request for a further opinion from a Medical Officer of the Commonwealth dated 30 March 2022 and 7 November 2023·Letter from the AAT Request for Further Medical Opinion dated 12 December 2023·Noted serum creatinine results 2.46 mg/dL(eGFR 31) and 2.93 mg/dl (eGFR 24) dated Oct 2014 & Jul 2021 respectively as per Nephrologist report from Dr Lye Wai Choong dated 15 Jul 2021 ·Diagnosis of chronic kidney disease at stage 48 and progressed to stage 58 (associated with renal anemia, hyperphosphatemia & hypocalcemia) as per nephrologist reports from Dr Maria Riastuti lryaningrum dated 13 Apr 2021 & 8 Nov 2022 respectively. The report found that the first named applicant had been assessed against PIC 4005 for the period of a permanent stay in Australia. The report found that the applicant did not satisfy PIC 4005(1) ( c)(ii)(A) and 4005(1)(c )(ii)(B) in Schedule 4 to the Migration Regulations.

Decision

Reasons for decision

As the first named applicant has not satisfied the requirements of PIC 4005, the Tribunal must affirm the decision under review.DECISIONThe Tribunal affirms the decision not to grant the first named applicant a Business Skills (Provisional) (class EB) visa.· The Tribunal does not have jurisdiction in this matter in relation to the second, third and fourth named applicants.Karen McNamaraMemberATTACHMENTMigration Regulations 1994Schedule 44005(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.

Ratio Decidendi

Legal Principle Established

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