ZENGE (Migration)

[2019] AATA 283

ZENGE (Migration) [2019] AATA 283 (6 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Trust Zenge

CASE NUMBER:  1612281

HOME AFFAIRS REFERENCE(S):           BCC2015/2308817

MEMBER:Alison Mercer

DATE:6 February 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the applicant meets the following criteria for a subclass 187 (Regional Sponsored Migration Scheme) visa:

·PIC 4007(1)(ab) for the purposes of cl.187.224(1) of Schedule 2 to the Regulations.

Statement made on 06 February 2019 at 12:44pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visas – Subclass 187 Regional Sponsored Migration Scheme – Temporary Residence Transition stream – position of welder – health assessment cleared applicant – decision under review remitted         

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2 cl 187.224; Public Interest Criterion 4007

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 and Border Protection to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 11 August 2015. At the time of application, Class RN contained one subclass: subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for a subclass 187 visa are set out in Part 187 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 two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In the present case, the applicant is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Welder.

5. The delegate refused to grant the visa because the applicant did not meet cl.187.224 of Schedule 2 to the Regulations. The delegate noted that cl.187.224(1) required (amongst other things) the applicant to satisfy Public Interest Criterion 4007 (PIC 4007), which in turn required that the applicant undertake a health assessment with an approved provider. The delegate found that the applicant had been requested to do so on 5 occasions between February 2016 and June 2016) but had not provided any evidence of having done so.

6. The Tribunal received a review application from the applicant on 8 August 2016, which was accompanied by a copy of the delegate’s decision and an authority by which he appointed a registered migration agent, Mr Gregory Gordon-Lane, as his representative and authorised recipient for correspondence for the purposes of the review. Subsequently, the applicant appointed a new migration agent, Ms Cheryl Bird, to these roles.

7. On 17 May 2018, the Tribunal received a submission from the applicant’s agent, in which she made the following points (in summary):

   ·at the time that the applicant was identified as not having responded to numerous requests from the Department to undertake a health assessment, his migration agent was Mr Thomas-Lane, and all requests made by the Department were made to him;

   ·on 3 March 2016, the applicant received a telephone call from the Department following their inability to contact the agent, whereby they advised him that he needed, amongst other things, was to provide a health assessment. He was advised to contact his agent;

   ·after contacting his agent, the applicant received a referral letter from the Department on 13 March 2016 to undertake the required health assessment. The applicant went to an approved medical centre on 14 March 2016 and made an appointment for 21 March 2016. He undertook the health assessment and X ray on this date at an approved medical centre in Kalgoorlie, Western Australia;

   ·the applicant saw Dr John Prempeh, who later contacted the applicant (on a date he could not remember) to request details of who to contact at Royal Perth Hospital, where the applicant was being treated for HIV, which the applicant provided to him. At this time, the applicant believed that he had done all that had been requested of him in relation to the health assessment requirement;

   ·unfortunately, on 31 July 2016, the applicant received a letter from Medicare to inform him that his Medicare cover was going to change due to issues to do with his immigration status. In the letter, a link was provided for the applicant to check his visa status. The applicant therefore checked the Department’s VEVO and found that his bridging visa was going to expire. The applicant therefore rang the Department to check the status of his subclass 187 visa application, only to find that the Department had not received his medical report;

   ·the applicant immediately rang his agent, who advised him to go to the medical centre and find out what had happened. The medical centre told the applicant to contact BUPA as the centre had sent the applicant’s medical results to BUPA, who in turn were responsible for forwarding this information to the Department;

   ·BUPA advised the applicant that they were waiting for another letter which they had requested from the medical centre regarding the applicant’s current medications. The applicant followed this up with the medical centre and it was discovered that they had received the BUPA letter but not taken any action to respond to it. They undertook to do so. The applicant advised his agent of this. His agent received an email from Dr Prempeh on 3 August 2016 in which Dr Prempeh acknowledged that he had failed to follow up the BUPA request and apologised for this. The agent advised the applicant of this response and further advised him to take the matter to the Tribunal;

   ·Ms Bird was appointed as the applicant’s agent on 2 December 2016 following the applicant’s former agent’s dismissal and deregistration in October 2016. The applicant and Ms Bird understood that a letter was provided by East Metropolitan Health Service from Dr Claire Italiano (Royal Perth Hospital) confirming the applicant’s treatment and indicating that ‘he had never had any opportunistic infections or AIDS defining illnesses and his prognosis was excellent.’ This letter was addressed to the Department and dated 1 August 2016, 2 weeks after the refusal of the applicant’s subclass 187 visa;

   ·Ms Bird contacted Dr Prempeh initially on 6 December 2016 by email to request his assistance, noting that during the application, he had tried to contact the local infectious diseases consultant in Kalgoorlie on several occasions and was later advised that it would be better to refer the issue to Perth. Ms Bird asked Dr Prempeh to confirm the sequence of events in writing, which he eventually did on 23 January 2017 (after several requests from Ms Bird);

   ·the applicant had subsequently contacted BUPA to confirm that all documents required had been received but had been able to get BUPA to confirm this in writing. He was told that if the Tribunal required anything regarding his medical centre, it would be provided by the Department only;

   ·Ms Bird noted that, after lodging the review application with the Tribunal, the applicant applied for a further subclass 457 visa on 13 May 2017 whereby he obtained a new medical and X ray and provided to these to the Department on 26 June 2017.  A health waiver letter was provided to the applicant as it was deemed that he did not meet the health requirement at that time. The reason that this visa application was withdrawn was that by this time, the applicant’s original subclass 457 visa had expired and he held a bridging visa A. The applicant had by then been working for his Australian sponsoring employer for over 5 years;

   ·the agent who handled this visa application requested that the Department to consider waiving the skills assessment requirement but were advised that the applicant had to currently hold a subclass 457 visa in order to be eligible for consideration of the waiver. For this case, as for many who may hold a bridging visa after holding a subclass 457 visa for an extended period, the applicant was able to demonstrate relevant experience in the nominated position and the agent believed that this aligned with the ‘intention’ of the waiver provision. However, once the Department indicated that it did  not agree, the visa application was withdrawn on 22 July 2017;

   ·it was understood that due to the time that had elapsed, the applicant may need to undertake a further medical assessment and X ray for the subclass 187 visa, but it was requested that the Tribunal consider remitting the review application in any case as it was believed that the Department had in fact received the medical information required (albeit after the visa refusal); and

   ·the Tribunal was also requested to consider the fact that the applicant was now 50 years old, and should the Tribunal affirm the decision under review, he would be unable to reapply for an employer sponsored visa due to his age, and not through any fault of his own.

8. In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to section 360(2)(a) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant meets cl.187.224. This clause provides as follows:

    187.224

    (1)      The applicant satisfies public interest criterion 4007.

    ...

11. Public Interest Criterion 4007 (PIC 4007) provided (as at the date of the visa application):

    [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.

    [4007] (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.

    [4007] (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.

    [4007] (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.

    …

12. The Tribunal notes that the delegate found that the applicant did not satisfy cl.187.224(1) (and thus cl.187.224 as a whole) because the applicant did not provide any evidence of having undertaken a health assessment despite being requested to do so on several occasions.

13. The applicant has now provided detailed information that indicates that he did in fact undertake the required health assessment as he obtained a new medical and X ray from BUPA and provided to these to the Department on 26 June 2017.  The Department’s Integrated Client Services Environment (ICSE) record that these were dated 13 May 2017.

14. Accordingly, the Tribunal finds that PIC 4007(1)(ab) is met for the purposes of cl.187.224.

15. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa. The Tribunal acknowledges that there have been a number of developments in this case, and that the applicant may not be able to satisfy other aspects of PIC 4007(1) and/or Part 187. However, in view of the fact that there is a discretion in PIC 4007 as to the potential costs of the applicant’s health condition(s), the Tribunal considers it appropriate for this (and/or other Part 187 criteria) to be considered at first instance by the Department, and not by the Tribunal on review.

    DECISION

16. The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the applicant meets the following criteria for a subclass 187 (Regional Sponsored Migration Scheme) visa:

    ·PIC 4007(1)(ab) for the purposes of cl.187.224(1) of Schedule 2 to the Regulations.

    Alison Mercer

    Member