Sharma (Migration)

[2024] AATA 3714

Sharma (Migration) [2024] AATA 3714 (25 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Renuka Sharma
Mr Karan Mahant
Master Riyansh Mahant

REPRESENTATIVE:  Mr Jujhar Bajwa (MARN: 0742209)

CASE NUMBER:  2318720

HOME AFFAIRS REFERENCE(S):          BCC2018/417190

MEMBER:Jade Murphy

DATE:25 September 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) visas.

Statement made on 25 September 2024 at 4:30pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) visa – Subclass 187 Regional Sponsored Migration Scheme – health criteria – Medical Officer of the Commonwealth assessment – costs to the Australian community – decision under review affirmed       

LEGISLATION

Migration Act 1958, ss 65
Migration Regulations 1994, Schedule 2, cls 187.235; Schedule 4, Public Interest Criterion 4005; r 2.25

CASES

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 decisions made by a delegate of the Minister for Home Affairs on 1 November 2023 to refuse to grant the applicants Regional Employer Nomination (Permanent) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 25 January 2018. The delegate refused to grant the visa on the basis that the secondary visa applicant, Master Riyansh Mahant (DOB 24 July 2015) (‘the applicant’) did not satisfy cl 187.235 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.

3. The applicants appeared before the Tribunal on 20 September 2024 to give evidence and present arguments. It was conducted by videoconference at their request. The hearing was conducted with the assistance of a Hindi interpreter.

4. The applicants were represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this review is whether the applicant meets 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 a medical assessment, and to be free of certain diseases or conditions that may impact on the community. The applicant in this case has been assessed with autism spectrum disorder (ASD) at a moderate level.  

   Is the applicant free from the relevant diseases or conditions (PIC 4005(1)(a), (b), (c))?

7. Public interest criterion 4005(1)(a) and (b) require the applicant 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.

8. Public interest criterion 4005(1)(c) requires the applicant to 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) 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 services are excluded from this consideration: PIC 4005(3).

9. As the applicant in this case has applied for a permanent visa, the exclusion provision in PIC 4005(3) does not apply.

10. In determining whether a person meets PIC 4005(1)(a), (b) or (c) reg 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 an MOC is required, the Tribunal must take it be correct: reg 2.25A(3).

    Is an MOC opinion required?

11. On the evidence before the Tribunal, an 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 PIC 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.

    Primary decision record

12. As set out in the primary decision record, the delegate found that this criterion was not met because on 13 July 2023, an MOC assessed the applicant, Master Mahant, who is a member of the family unit of the primary visa applicant (Mrs Renuka Sharma), as not satisfying PIC 4005(1)(c)(ii)(A) of Schedule 4 to the Regulations. In the MOC’s assessment they considered there to be a significant cost based on the moderate ASD diagnosis and provided the cost breakdown of special education and disability services over the relevant period to reach that conclusion.

13. The delegate noted that on 17 August 2023, the applicants were invited to comment on the report by the MOC and were offered the opportunity to provide supporting evidence for a claim that the report was incorrect.

14. The delegate noted that on 11 September 2023, the applicants provided the following documents:

    ·Paediatrician’s report from the Royal Darwin Hospital dated 21 April 2023.

    ·Paediatrician’s report from the Royal Darwin Hospital dated 9 June 2023.

    ·School report for Master Mahant DOB: 24 July 2015 dated 20 June 2023.

    ·Applicants’ statement substantially submitting: ‘We do not agree with the department decision, as we believe there is no substantial evidence from the medical team, as they only suspect a diagnosis. We humbly request the department to reconsider the application or reorganise his medical through a culturally appropriate medical team’.

15. The delegate found that the medical reports and school report provided by the applicants had been considered by the MOC. The delegate considered that no new evidence had been provided, and that the health assessment of the applicant is valid. As a result, the delegate was not satisfied that each member of the family unit of Mrs Sharma meets PIC 4005 for the grant of this visa.

    Review proceedings

16. On review, the Tribunal notes that the applicants provided the following additional documents and it has considered them:

    ·Written submissions dated 17 September 2024.

    ·Paediatrician Report dated 16 September 2024.

    ·Paediatrician Report dated 5 April 2024.

    ·Master Mahant’s achievements.

    ·School letter dated 19 July 2024.

    ·Speech Pathologist Report dated 24 January 2024.

    ·Birth Certificate of Master Mahant.

    ·Mr Karan Mahant’s income statement.

    ·Mrs Sharma’s income statement.

    ·Vehicle Registration Certificate.

    ·Medicare card.

    ·Birth Certificate of Mr Mahant.

    ·Statutory Declaration – Mrs Sharma.

17. At hearing, the Tribunal reiterated the concerns as expressed by the delegate in the primary decision record. The Tribunal also confirmed it was provided a copy of the Form 884 MOC assessment dated 31 July 2023 stating that the applicant does not meet the health requirements. The Tribunal told the applicants that its preliminary view is that the assessment is valid because it identifies the applicant’s medical condition to which the PIC has been applied (specifically ASD); expressly identifies the form and severity of the condition (specifically moderate), and the MOC applies the statutory criteria by clear reference to a hypothetical person suffering from that level of the condition. The Tribunal asked the applicants whether they wished to comment on these concerns.

18. Mrs Sharma told the Tribunal that they do not agree with the MOC assessment because the applicant does not require all the services listed by the MOC. Mrs Sharma told the Tribunal that the applicant is continually progressing and that they are trying to get him enrolled in a mainstream school which will further reduce the costs.

19. The Tribunal reiterated its concern that if it finds that the MOC has applied the correct test in forming their opinion, the Tribunal must take it to be correct.

20. Mrs Sharma told the Tribunal that the family has been struggling for a long time and have built a life in Australia for the past decade. Mrs Sharma told the Tribunal that the applicant is a good boy who is not a burden on the health system. Mrs Sharma stated that he has delayed speech but relied on the recent medical reports that indicate the applicant is progressing.

21. In written submissions provided prior to hearing, the applicants submitted that the cost assessment (of $735,460) given by the MOC was based on the costs from the date of the application (25 January 2018) and that given six years have elapsed since the application was made, the applicants submitted that the actual costs to the Australian community ‘may now be lower than initially projected’. They requested that the Tribunal reassess and adjust the estimated costs for the remaining period. In response to this, at hearing, the Tribunal told the applicants that if it considered the MOC’s assessment applied the correct test in forming their opinion, it had to accept it and had no discretion to dispense with it or alter it. However, further to that, it noted that the most recent MOC assessment, issued last year, again estimates the costs to the Australian community as $735,460 as at July 2023. The Tribunal noted that the MOC dated 31 July 2023 specifically refers to costs incurred from age seven and onwards, and for that reason appears to have considered the passage of time since application.

22. Mrs Sharma told the Tribunal that they lodged the application in January 2018 and she believes that the cost assessment should have been much lower in 2023. The applicants’ agent further submitted on their behalf that the calculations contained in the MOC report issued in July 2023 were incorrect. As expressed to the applicants on several occasions during the hearing, the Tribunal does not consider it is able to go behind the calculations as assessed by the MOC if the test has been applied correctly. The Tribunal notes that the MOC assessment issued in 2023 does appear to have considered the passage of time since the application because it expressly refers to costs of the applicant from the age of seven (and not two years old as he was when the application was first lodged).

23. Mrs Sharma told the Tribunal that the most recent medical and school reports indicate that the applicant is making progress. For this reason, she submitted that the medical costs should be reduced because he is very independent. Again, the Tribunal told the applicants that if it is satisfied that the MOC applied the correct test in forming their opinion, then it does not consider that it is able to look behind the opinion; this includes the costs estimates. The Tribunal must take the opinion of the MOC as correct (reg 2.25A(3)).

24. Mrs Sharma again requested that the costs should be much less and that the care identified as necessary by the MOC is not required by the applicant. Again, the Tribunal considers that if the test applied by the MOC to form their opinion is valid, then it has no discretion in the matter and must take the opinion of the MOC as correct.

25. The applicants’ representative asked the Tribunal for further time to obtain a school report which would go towards demonstrating that the costs assessment by the MOC is incorrect and can be further reduced. The Tribunal has considered this request but has not granted it in circumstances where if the proper test has been applied, the Tribunal must take the contents of the report to be correct.

26. The applicants provided written submissions stating that the primary applicant’s employment and financial position is steadily improving. The Tribunal accepts the applicants’ submissions in this regard but does not consider that it has any bearing on the validity of the MOC assessment.

27. The Tribunal relies on the most recent Form 884 MOC assessment dated 31 July 2023 provided which states that the applicant does not meet the health requirements. The Tribunal considers that it is valid because it identifies the applicant’s medical condition to which the PIC has been applied (specifically ASD); expressly identifies the form and severity of the condition (specifically moderate) and the MOC applies the statutory criteria by clear reference to a hypothetical person suffering from that level of the condition. As a result, although the Tribunal accepts that the applicants dispute the costs estimate given by the MOC, the Tribunal must take the opinion of the MOC as correct.

28. Accordingly, based on the opinion of the MOC, the applicant does not satisfy PIC 4005(1)(c).

29. As the applicant has not satisfied the requirements of PIC 4005, the Tribunal must affirm the decision under review.

    DECISION

30. The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) visas.

    Jade Murphy
    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.