1711132 (Migration) - [2017] AATA 2822

1711132 (Migration) [2017] AATA 2822 (6 December 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1711132
MEMBER:Catherine Carney-Orsborn
DATE:6 December 2017
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Residence) (Class VB) visa.
Statement made on 06 December 2017 at 2:08pm

CATCHWORDS
Migration – Skilled (Residence) (Class VB) visa – Subclass 885 (Skilled - Independent) – Requirement to be free of certain diseases or conditions – Organ transplant – Opinion of Medical Officer of the Commonwealth – Whether disease or condition likely to result in significant cost to Australian community – Validity of opinion – Request for referral for ministerial intervention
LEGISLATION
Migration Act 1958, ss 65, 351, 360
Migration Regulations 1994, r 1.03, r 1.16AA, r 2.25A, Schedule 2, cl 885.224, Schedule 4, PIC 4005
CASES
Haque & Ors v Minister for Immigration and Border Protection [2015] FCCA 1765
Robinson v MIMIA (2005) 148 FCR 182
Ramlu v MIMIA [2005] FMCA 1735
Blair v MIMA [2001] FCA 1014
JP1 & Ors v MIAC [2008] FMCA 970
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] 2015 to refuse to grant the applicant a Skilled (Residence) (Class VB) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa [in] 2009. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.885.224 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4005 of Schedule 4 to the Regulations was not met.
In March 2015 the applicant sought review of that decision at the Tribunal. On the 9 May 2016 a differently constituted Tribunal affirmed the decision of the Department. In [2016] the applicant appealed the Tribunal’s decision to the Federal Court.
[In] 2017 the matter was remitted by consent. The following reasons for the remittal by consent were recorded.
The Tribunal's decision dated 9 May 2016 (AAT [case number]) was affected by jurisdictional error. In particular, the Tribunal failed to comply with section 360 of the Migration Act 1958 (Cth)(Act).
In circumstances where following a hearing on 30 March 2016, the Tribunal reviewed an opinion from the Review Medical Officer of the Commonwealth (RMOC) dated [in] April 2016 (Court Book 205-207) and the applicant's representative in his correspondence to the Tribunal dated [in] May 2016 took issue with the legal validity of the RMOC opinion, the Tribunal was required by section 360 of the Act to invite the applicant to a further hearing to give evidence and present arguments on the RMOC opinion: Haque & Ors v Minister for Immigration and Border Protection [2015] FCCA 1765 at [33] - [34].
The applicant appeared before a differently constituted Tribunal on 5 December 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review by her registered migration agent.
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 had [an organ] transplant in 2010. The Medical Officer of the Commonwealth found that a hypothetical person with this condition, as the same severity as the applicant, would be likely to require health care or community services during the condition specified above and that the provision of these health care and/or community services would be likely to result in a significant cost to the Australian community in the areas of health care and/or community services. The condition is permanent.
Is the applicant free from the relevant diseases or conditions (PIC 4005(1)(a), (b), (c))?
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.
Public interest criterion 4005(1)(c) requires the applicant 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 certain temporary visas, the applicant is excluded from the requirement to be free from a disease or condition likely to result in significant cost in the areas of health care and community services: PIC 4005(3).
As the applicant in this case has applied for a permanent visa, the exclusion provision in PIC 4005(3) does not apply and the applicant in this case must satisfy PIC 4005(1)(c)(ii)(A).
In determining whether a person meets PIC 4005(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.
[In] February 2015 an opinion of a Medical Officer of the Commonwealth was obtained. In that opinion the MOC found that the applicant does not satisfy PIC 4005(1)(c)(ii)(A). An earlier MOC opinion dated [in] January 2013 had also found that the applicant does not meet the health requirement and therefore does not meet PIC 4005.
A third MOC opinion was obtained dated [in] April 2016. That MOC again found that the applicant does not meet the health requirement.
The opinion stated that the applicant had [an organ] transplant. The MOC found the condition was Permanent. A hypothetical person with the condition, at the same severity as the applicant, would be likely to require health care or community services during the period specified above. The MOC found that the provision of these health care and/or community services would be likely to result in a significant cost to the Australian community in the areas of health care and/or community services.
On 22 April 2016 the applicant was provided with a copy of that opinion for a response. In the response dated [in] May 2016 the applicant challenged the validity of the opinions.
The Tribunal held a hearing on 5 December 2017. The applicant appeared to give evidence.
Prior to the hearing the applicant’s representative provided submissions requesting the Tribunal refer the matter to the Minister for his consideration.
At the hearing the Tribunal went through some background with the applicant. She was born in China in [birth year]. She arrived in Australia in 2007. She was on a [temporary] visa and studied [various fields]. She was granted [another temporary] visa in 2010. In 2011 she became very unwell. She received [an organ] transplant at a [hospital]. This transplant was successful and she decided she would study [a certain field].
Her evidence is that she has now finished her [degree] and is awaiting registration. Evidence was provided which indicates she has worked in [placements] and undertaken this study.
The applicant’s parents are in China. They have visited her in Australia. Her parents funded her study in Australia. The applicant states her intention was always to stay permanently in Australia.
She wants to make her life in Australia. She feels her working and paying tax is a benefit to Australia and she wants to dedicate herself to [serving the community].
She has had a successful [organ] transplant and obtained a [degree]. Her evidence is that she wants to work in Australia and that this work would outweigh any costs associated with any potential medical care.
The representative had provided submissions on a referral to the Minister but nothing further on the validity of the MOC.
The Tribunal asked if there was anything further the applicant or representative would like to say about the validity of the MOC.
The representative indicated there was nothing further. He indicated that they maintained their position on the validity of the MOC and relied on submissions already made to the previously constituted Tribunal but had nothing further to add.
The Tribunal has before it the submissions provided by the applicant’s representative in relation to the validity of the MOC. Those submissions put forward two issues and provide reasons why they feel their view is correct. The two issues are summarised as follows.
Firstly that the MOC is invalid as the opinion formed on the basis that the period of a permanent stay in Australia is erroneous because “permanent stay in Australia” is not defined in Paragraph PIC 4005(2).
The submission secondly stated that to properly reach an opinion that the provision of the health and/or community services identified would be likely to result in significant costs to the Australian community in the areas of health care and/or community services, it must involve consideration of costs of each health care and/or community services identified and then form an opinion as to whether these costs collectively would result in a ‘significant cost’ to the Australia community. On that basis, we contend for a RMOC option to be valid, it must detail the costing analyses used to form an opinion that it is “a significant cost”.
The Tribunal has considered the submissions provided carefully.
In cases where PIC 4005 is applicable and an adverse opinion is received from the MOC, the only issue before the Tribunal may be whether the opinion of the MOC is authorised by the Regulations.
In determining whether there is a valid MOC opinion, the decision maker must be satisfied that it has:
·an opinion;
·by a Medical Officer of the Commonwealth (defined in r.1.03 to mean a medical practitioner appointed by the Minister in writing under r.1.16AA to be a Medical Officer of the Commonwealth for the purposes of the Regulations);
·the opinion is on a matter referred to in r.2.25A(1) or (2) (for the purposes of (1) an opinion on whether a person meets certain health requirements); and
·the opinion addresses satisfaction of these requirements at the time of the Minister’s decision.[1]
[1] Blair v MIMA [2001] FCA 1014 (Carr J, 31 July 2001) at [19] citing MIMA v Seligman (1999) 85 FCR 115 at [48]-[49].
The Tribunal is satisfied that the MOC before it is an opinion from a Medical Officer of the Commonwealth.
The opinion refers to PIC 4005(1)(c)(ii)(A). The opinion correctly reflects assessment of costs and access to health care or community services during the relevant period. For all permanent visa applicants and applicants for a temporary visa of a subclass specified in a written instrument (generally provisional visas), the relevant period is the period commencing when the application is made. No end date is specified. The applicant has applied for a permanent visa. The MOC states the applicant has been assessed for the period of a permanent stay in Australia.
The MOC states that services for a hypothetical person with the condition at the same severity as the applicant, would be likely to require health care or community services during the period specified above and that those services would include Medical services and pharmaceuticals. The MOC then goes on to state that provision of those services would result in a significant cost to the Australian community in the area of health care and/or community services.
The applicant in submissions asserts that the MOC to be valid must detail the ‘costing’ analyses use to form an opinion that it is a ‘significant cost’. The Tribunal has considered that submission.
Where the MOC opinion relates to PIC 4005(1)(c)(ii)(A), 4006A(1)(c)(ii)(A) or 4007(1)(c)(ii)(A), i.e. that provision of health care of community services relating to the disease or condition would be likely to result in significant cost to the Australian community, the MOC is not obliged to state what the significant costs would be in order for the MOC opinion to be valid.[2] It is for the MOC to determine whether a cost is significant based on his or her medical judgment.[3] Nor is the MOC obliged to explain why a particular cost is considered to be a significant cost.[4]
[2] JP1 & Ors v MIAC [2008] FMCA 970 (Riley FM, 22 August 2008) at [13], citing Blair v MIMA [2001] FCA 1014 (Carr J, 31 July 2001) at [46]. The Court in JP1 was considering a MOC opinion in relation to (then) PIC 4005(c) for an applicant with HIV.
[3] JP1 & Ors v MIAC [2008] FMCA 970 (Riley FM, 22 August 2008) at [33] referring to MIMA v Seligman (1999) 85 FCR 115 at [53].
[4] JP1 & Ors v MIAC [2008] FMCA 970 (Riley FM, 22 August 2008) at [57].
The Tribunal after considering all the evidence finds that the MOC opinion is valid.
Accordingly, based on the opinion of the MOC, the applicant does not satisfy public interest criterion 4005(1)(c).
Referral to the Minister
The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351 which gives the Minister discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.
The applicant provided references from employers, friends and relatives. Submissions were provided. Those submissions go into detail about the applicant’s study, work and health issues in Australia.
At the hearing the Tribunal asked the applicant to comment on what circumstances would warrant a referral to the Minister.
The applicant stated she would dedicate herself to [her profession] in Australia. Her representative stated that the applicant is a normal functioning member of the community and would dedicate herself to assisting persons. She will pay taxes and the benefit would outweigh any medical costs. The submissions and representative referred to the applicant’s original application being delayed due to a policy of the Department which meant her application fell into lower priority processing and during this time she became unwell. The representative also pointed to there being two previous applications for ministerial intervention and was concerned about how a third application would be received. It is unfortunate that the applicant became unwell while awaiting the outcome of her original application. However she has been the recipient of a successful [organ] transplant and has obtained a [degree] while in Australia.
The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) but has decided not to refer the matter.
The Tribunal notes that the applicant has the assistance of her representative and can still make a request directly to the Minister.
As the applicant has not satisfied the requirements of PIC 4005, the Tribunal must affirm the decision under review.
DECISION
The Tribunal affirms the decision not to grant the applicant a Skilled (Residence) (Class VB) visa.
Catherine Carney-Orsborn
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)Sub-subparagraph (1) (c) (ii) (A) does not apply if:
(a)the applicant would not be eligible for the provision of the health care or community services; and
(b)the ineligibility would be due to the temporary visa for which the applicant is applying being of a particular subclass; and
(c)the subclass is not specified by the Minister in an instrument in writing made under subparagraph (2) (b) (ii).