1729745 (Migration)
[2019] AATA 5188
•6 September 2019
1729745 (Migration) [2019] AATA 5188 (6 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1729745
MEMBER:Alison Mercer
DATE:6 September 2019
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the application for Skilled Nominated (Permanent) visas for reconsideration, with the direction that the second named applicant meets the following criteria for a subclass 190 - Skilled - Nominated visa:
·PIC 4005(1)(c) for the purposes of cl.190.216 of Schedule 2 to the Regulations.
Statement made on 06 September 2019 at 10:39am
CATCHWORDS
MIGRATION –Skilled Nominated (Permanent) (Class SN) visa – Subclass 190 Skilled - Nominated – free from disease or condition that may result in threat to public health – adverse Medical Officer of the Commonwealth (MOC) opinion – Public Interest Criterion 4005 – significant cost to the Australian community – initial MOC opinion invalid – medical condition in the low to moderate phase – positive MOC opinion – exact form or level of the disease or condition suffered by the applicant – decision under review remittedPRACTICE AND PROCEDURE – where an opinion of MOC is required, Tribunal must take it as correct – Tribunal must be satisfied that MOC has applied correct test in forming its opinion – MOC opinion considered invalid
LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), r 2.25A, Schedule 2, cl 190.216, Schedule 4, Public Interest Criterion 4005CASES
Haque & Ors v Minister for Immigration and Anor [2015] FCCA 1765
Ramlu v MIMIA [2005] FMCA 1735
Robinson v MIMIA (2005) 148 FCR 182
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 decisions made by a delegate of the Minister for Immigration on 17 November 2017 to refuse to grant the applicants Skilled Nominated (Permanent) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 3 August 2016. The delegate refused to grant the visa on the basis that the first named applicant (now referred to as the applicant) did not satisfy cl.190.216 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. Specifically, the delegate found that applicant’s wife did not meet PIC 4005(1)(c), which required that any member of the family unit of the applicant had to be free from a disease or condition in relation to which a person who has the disease or condition would be likely to require health care or community services, or meet the medical criteria for the provision of a community service from the time the visa would be granted, and where provision of the health care or community services would be likely to result in a significant cost to the Australian community in the areas of health care or community services, or would prejudice the access of an Australian citizen or permanent resident to health care or community services (regardless of whether the health or community services will actually be used in connection with the applicant). The delegate found that a Medical Officer of the Commonwealth (MOC) had provided a report dated 9 June 2016 indicating that the applicant’s wife had asymptomatic chronic viral Hepatitis B and that the MOC assessed that she did not meet PIC 4005(1)(c). A review by a Review Medical Officer of the Commonwealth (RMOC), which took into account a specialist report by Dr [A] dated 31 July 2017, still found that the applicant’s wife did not meet PIC 4005(1)(c). The delegate noted that there was no waiver provision in relation to PIC 4005, and that if one member of the family unit failed to meet PIC 4005, the whole visa application failed.
The Tribunal received a review application from the applicants on 27 November 2017, which was accompanied by a copy of the delegate’s decision, and an authority by which the applicants appointed a registered migration agent, Ms [B], as their representative and authorised recipient for correspondence. It was also accompanied by a copy of a medical report from Dr [A] dated 31 July 2017, in which he states that the applicant’s wife is in the ‘Hepatitis B e-antigen negative chronic disease’ phase, that her liver test is normal and shows a low to moderate viral load, with no evidence of significant LT liver damage. He concludes that there is therefore a very low risk of the applicant’s wife developing cirrhosis or carcinoma and that anti-viral therapy is not required. He states that the majority of patients in this stage last this way for decades.
The applicants requested a further MOC report on 30 June 2018.
They subsequently provided updated medical reports. One was from Dr [A] dated 4 February 2019, in which he stated that there is a 75% likelihood that the applicant’s wife would remain in the minimally active phase of Hepatitis B. He estimates the costs associated with her condition as being annual tests costing approximately $350 to $400 per year, rising to approximately $1,900 per year if first line anti-viral therapy is required.
Another letter was from Associate Professor of Gastroenterology, [Dr C], dated 13 February 2019, in which he states that the applicant’s wife had not received any treatment for her condition over the years. When he saw her on 1 February 2019, she reported that she was perfectly well and had no symptoms of tiredness or anything related to chronic liver disease. On examination, she had no peripheral stigmata of chronic liver disease and neither her liver nor her spleen were palpable or enlarged. He further states that his investigations showed that she had a normal full blood examination and a platelet count of 260 x 10(9), which was normal, and perfectly normal liver function tests. She was Hepatitis B surface antigen positive and Hepatitis B e antigen negative and Hepatitis B antibody detected. Her Hepatitis B DNA was 130,000 IU/ml. Dr [C] states that in his opinion, the applicant’s wife almost certainly contracted Hepatitis B by vertical transmission in Asia. Her investigations showed that she was in phase 3 or the immune control phrase of Hepatitis B as indicated by a positive Hepatitis B surface antigen but negative Hepatitis B e antigen and positive Hepatitis B DNA level combined with normal liver function tests. Her examination and investigations indicated that her liver was perfectly normal. He further states that people in phase 3 or immune control Hepatitis B have demonstrated that their immune system had suppressed the viral reapplication and maintained normal liver function tests. In people in phase 3, the virus eventually might become undetectable but many subjects stayed in this phase long term. There was a 5% to 7% chance over 10 years of the applicant’s wife moving to phase 4, with abnormal liver function tests requiring viral suppression with such agents such as entedavir or tenofvir. Dr [C] concludes that it is his opinion that the applicant’s wife was likely to have a normal life expectancy and the Hepatitis B would not progress and require treatment. Her future medical care would require blood tests every 6 months to check her liver function, then 12 monthly measurements of Hepatitis B DNA levels. There was a 5% to 7% chance of the applicant’s wife requiring viral suppression with such agents such as entedavir or tenofvir, but most of these drugs are now off-patent, so the long term costs of her management were not likely to exceed $40,000 in the foreseeable future.
Also provided were written statements from the applicant and his wife, dated 31 March 2019 and 16 April 2019, respectively. The applicant states that he is a qualified [Occupation 1] while his wife works as [an Occupation 2], having successfully built her own business in this field. He notes that his wife has always been happy and [healthy]. He stresses that she has never suffered any symptoms from her Hepatitis B, and that she and he lead active, healthy lifestyles and eat well and avoid alcohol and cigarettes. He estimates her medical monitoring costs at approximately $367 per year, which her specialist estimated might rise to $445 per year when his wife turns 50.
The applicant’s wife reiterated much of the above information and stated that her medical condition had not affected her daily life, including her [business], and she had been advised that her Hepatitis B was unlikely to progress beyond requiring annual monitoring.
The applicants’ agent made the following legal submissions (in summary):
·the review applicant was a [age] year old Chinese citizen, and his wife was the subject of a negative assessment by the MOC in relation to PIC 4005;
·subsequently, the applicants provided 2 further medical reports dated 4 February 2019 and 23 March 2019 from Dr [A], which indicated that the applicant’s wife’s Hepatitis B condition was in the low to moderate phase with normal liver function tests and minimal hepatic fibrosis, and that her current management would typically involve an ultrasound every 6 months for HCC surveillance;
·also provided to the Tribunal was an opinion by Associate Professor [C] dated 13 February 2019, which similarly indicated that the applicant was well and had no symptoms, and that examinations showed no peripheral stigmata of chronic liver disease, nor did her liver or spleen appear enlarged or palpable. He concluded that her liver appeared to be perfectly normal;
·the applicant’s wife required blood tests every 6 months and 12 month measurements of Hepatitis B DNA levels. She did not require any medication. Both Dr [A] and Professor [C] had confirmed that her Hepatitis B would be unlikely to progress and required treatment;
·it was contended that the MOC did not apply the correct test in forming his or her opinion. While the opinion identified a medical condition that the applicant’s wife’s had, it failed to also specify
·the ‘form and level’ of the condition suffered by the applicant’s wife; and
·the statutory criteria (as to whether provision of health care or community services would be likely to result in significant cost).
·this was the approach to applying the health criterion that was enshrined in the leading cases of Robinson and Ramlu v Minister for Immigration a few months later. In Robinson (and confirmed with Ramlu), Siopsis J explained that the MOD and the RMOC are required by law to ascertain the exact form or level of the disease or condition suffered by the applicant, and then assess whether the provision of health care or community services to a hypothetical person with that level of disease or condition would result in a significant cost to the Australian community;
·the MOC’s opinion states the applicant’s wife has ‘Hepatitis B viral infection with an elevated viral load. She is not on antiviral therapy, however would be eligible for treatment under the Pharmaceutical Benefit Scheme. Provision of services to a hypothetical person with [the applicant’s wife’s] condition. A hypothetical person with the same condition of a similar severity would be likely to require ongoing medical review and antiviral therapy. This condition is likely to be Permanent;’
·in preparing the opinion, the MOC had regard to the applicant’s wife’s visa medical assessment and associated investigations dated 30 May 2017 and a medical report from Dr [A] dated 31 July 2017;
·the MOC report did not provide which phase of Hepatitis B the applicant’s wife was in. The MOC expressed no agreement or disagreement with the opinion of Dr [A] but reported a finding of a level that was different from Dr [A]. The MOC stated that the applicant’s wife was not on antiviral therapy, however would be eligible for treatment under the PBS. To be eligible for treatment (antiviral therapy), the person must have signs of liver damage, therefore requiring treatment under the PBS. There was no evidence that the applicant’s wife had signs of liver damage and there was no evidence that she was on antiviral treatment nor that she would be likely to require it in the future;
·the applicant’s wife had chronic Hepatitis B. People diagnosed with Hepatitis B require regular monitoring. The frequency of this monitoring varied according to the phase of infection, the extent of liver damage present, whether the person is receiving treatment, and the presence of other complicating factors such as co-infections, immunosuppression and other causes of liver disease. The applicant’s wife was in Phase 3 – Immune Control. There was no liver damage, no presence of other complicating factors and treatment (antiviral therapy) of Hepatitis B was not needed in this phase. Monitoring is required 6 to 12 monthly and it was not expected that her condition would deteriorate;
·in the 31 July 2017 report by Dr [A], he states that the applicant’s wife has Hepatitis B with normal liver function and was at very low risk of developing either of the long term complications of cirrhosis or hepatocellular carcinoma. He anticipated that she would not require antiviral treatment;
·this diagnosis was further supported by subsequent medical reports by Dr [A] and Associate Professor [C];
·in policy, to determine the costs, the MOC refers to ‘Notes for guidance for viral hepatitis,’ (‘Notes’) which deals with financial implications and consideration of prejudice of access to services associated with viral hepatitis. The Notes also provide clinical scenarios to assist the MOC with diagnosed Hepatitis B infection at different levels and the associated costs for each clinical scenario;
·Clinical Scenario 2 described and mirrored the applicant’s wife’s condition as follows:
·Scenario 2:
oChronic Hepatitis B A 39 year old woman is found to be hepatitis BsAg positive and Hepatitis BcAB positive on screening. She is assumed to have acquired hepatitis B in childhood. Her liver enzymes are within the normal range and her HBV viral load is low. She does not drink alcohol. She is well and has no signs of liver disease.
·Clinical opinion
oFrom these tests, she appears to have no signs of significant liver injury and is in the immune control phase. In the following 12 months, she will require hepatitis serology, HBV viral load and liver enzymes every 6 months. She is at low risk of developing advanced liver disease and its related complications. Anti-viral drugs are not likely to be required.
·the annual cost prescribed in the Notes for the above scenario is $590.00;
·when calculating costs for the visa applicants, each person’s level of condition and individual circumstances must be assessed to accommodate the wide spectrum of circumstances that affect eligibility. The MOC is not obliged to state what the significant costs would be in order for the MOC opinion to be valid. Nor is the MOC obliged to explain why a particular cost is considered to be a significant costs. However, it is for the MOC to determine whether a cost is significant based on his or her medical judgment;
·the MOC Notes indicate that ‘patients without evidence of active liver disease should be monitored on a regular basis and have an alanine aminotransferase (ALT) measurement performed at least every 6 months.’ This advice is echoed in Dr [A]’s and Associate Professor [C]’s reports that the applicant’s wife would require monitoring every 6 to 12 months, and that she showed no signs of significant liver injury and was in the immune control phase, with it being very unlikely that Hepatitis B would progress and require treatment;
·in summary, the MOC’s opinion was based on an assessment at a higher level of generality and probability than the specific likelihood of the applicant’s wife requiring health care. Despite the absence of the assessed costs associated with the medical condition in the MOC’s opinion, it was evident that the applicant’s wife was costed for pharmaceutical and medical services which she did not require. The applicant’s wife’s level of condition and costs were as described in the Clinical Scenario 2 example in the MOC Notes, as supported by her medical reports. The annual cost of $590.00 was not significant;
·in Robinson’s case, it was established that PIC 4005(1)(c)(ii)(A) required the objective test of likelihood based on the applicant’s wife’s diagnosis and not simply just a possibility based on a higher level of generality. In making the assessment, the MOC must take into consideration all relevant information about the applicant’s wife’s medical condition and reach an opinion on the basis of a hypothetical person with the same specific condition. The ‘hypothetical person’ test was not met here; and
·as such, it was requested that a direction be made that the applicant’s wife met PIC 4005 for the period of a permanent stay in Australia and meets PIC 4005(1)(c)(ii)(A) of Schedule 4 to the Regulations.
On 24 April 2019, the Tribunal wrote to the MOC to request a further medical opinion for the applicant’s wife, based on the medical information received by the Tribunal in relation to her.
On 3 May 2019, the Tribunal received a RMOC opinion dated 30 April 2019, which states as follows:
The applicant has been assessed against … PIC 4005… for a period of permanent stay in Australia.
The applicant does not satisfy sub-subparagraph PIC 4005(1)(c)(ii)(A) in Schedule 4 to the Migration Regulations.
The applicant is a [age] year old person with:
– Asymptomatic chronic viral Hepatitis B
Form and severity of the applicant’s condition: the applicant has asymptomatic infection with the Hepatitis B Virus. There is laboratory evidence of ongoing viral activity such that the applicant would be eligible for treatment under the Pharmaceutical Benefits Scheme in Australia. Provision of services to a hypothetical person in Australia with the same condition as the applicant and at the same severity: a hypothetical person in Australia with the same condition as the applicant, at the same severity, would be likely to require long term specialist health care services, including, but not limited to, antiviral pharmaceuticals and medical supervision. This condition is likely to be Permanent.
I consider that a hypothetical person with this disease or condition, at the same severity as the applicant, would be likely to require health care or community services during the period specified above.
These services would be likely to include:
·Medical services
·Pharmaceuticals
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.
In preparing this opinion, I have had regard to the information available to date concerning the applicant, including, but not limited to, the report from Prof. [C] dated 13 February 2019; the reports from Dr [A] dated 31 July 2017, 23 March 2018 and 4 February 2019; various blood tests and the report of the examinations conducted by the Panel Member on 11 April 2016 and 30 May 2017 with associated blood tests…
On 4 July 2019, the Tribunal wrote to the applicants, via their agent, to invite them to a hearing on 30 July 2019. The Tribunal requested that any further written submissions and/or documents (including any addressing the Ministerial intervention power in s.351 of the Act) 1 week prior to the hearing. In the meantime, the Tribunal sent a courtesy copy of the RMOC opinion dated 30 April 2019 to the applicants via their agent on 5 July 2019.
On 23 July 2019, the Tribunal received additional legal submissions from the applicants’ agent, which can be summarised as follows:
·the RMOC’s latest opinion stated that the applicant’s wife has ‘asymptomatic infection with Hepatitis B Virus. There is laboratory evidence of ongoing viral activity such that the applicant would be eligible for treatment under the Pharmaceutical Benefits Scheme in Australia. Provision of services to a hypothetical person in Australia with the same condition as the applicant, at the same severity would likely require long term specialist health care services, including, but not limited to antiviral pharmaceuticals and medical supervision. The condition is likely to be permanent… I consider that a hypothetical person with this disease or condition, at the same severity s the applicant, would be likely to require health care or community services during the period specified above;’
·in reaching this opinion, the RMOC had regard to various blood tests and the report of the examination on 11 April 2016 and associated blood tests conducted on 30 May 2017, medical report by Gastroenterologist and Hepatologist Dr [A] dated 31 July 2017 and subsequent reports from Dr [A] of 23 March 2018 and 4 March 2019, and medical report by Professor [C] dated 13 February 2019;
·the Federal Circuit Court of Australia (FCCA) in Haque & Ors v Minister for Immigration and Anor [2015] FCCA 1765 ruled that although a decision maker is normally bound to accept the opinion of the MOC as to whether a person meets the relevant health criteria for the visa for which they have applied, the decision maker should only accept a MOC opinion that is properly formed and that is not based on significant mistaken facts;
·as contended in the earlier submission, it was submitted that the RMOC’s opinion was not properly formed. Not only was the diagnosis based on a higher level of generality, the level of the condition against which the cost assessment was made, on a hypothetical basis, was wrong, as there were significant mistaken facts in the opinion;
·namely, there was no evidence of the need for antiviral pharmaceuticals. In fact, there was clear evidence to the contrary to be found in Dr [A]’s report of 31 July 2019 (he claims ‘she therefore does not require antiviral therapy or other significant investigations’), MOC opinion of 4 September 2017 (which claims that ‘the applicant has an asymptomatic Hepatitis B viral infection with an elevated viral load. She is not on antiviral therapy, however, would be eligible…’), Dr [A]’s report of 28 March 2018 (he reports that ‘on the basis of these results, she has a very low risk of developing either of the long term complications of cirrhosis or hepatocellular carcinoma. She therefore does not require antiviral therapy or any other significant investigations’), and Professor [C]’s report of 13 February 2019, in which it is stated that the applicant’s wife ‘is likely to have a normal life expectancy and the hepatitis B will not progess and require treatment;’
·the applicant’s wife’s condition is in the Immune Control Phase (Phase 3). Antiviral pharmaceuticals are not needed in this phase, as evidenced in the various medical reports cited above, and further supported in many medical journals including the Australasian Society for HIV, Viral Hepatitis and Sexual Health Medicine’s “Positive All You Wanted To Know About Hepatitis B,’ the Clinical Scenario 2 in the MOC’s Notes, and Hepatitis B factsheet for Clinicians (authorised and published by the Victorian government);
·patients may move between phases. However, as noted in previous submissions, and as supported by the available medical reports, the applicant’s wife’s condition is unlikely to progress. Further, Dr [A]’s latest report of 21 July 2019 claims that there is a 2.2% to 3.3% estimate that the applicant’s wife will require antiviral pharmaceuticals;
·the RMOC’s claim that laboratory evidence of ongoing viral activity is a criterion for treatment under the Australian PBS is incorrect. Amongst other criteria, to be eligible for antiviral pharmaceuticals under the PBS in Australia, a patient must have some evidence of chronic liver injury determined by confirmed elevated serum ALT or liver biopsy. Eligibility criteria is found in the PBS schedule, the MOC’s notes, and Dr [A]’s report of 21 July 2019, which details the clinical reasons why the applicant’s wife cannot meet the PBS eligibility criteria for antiviral pharmaceuticals;
·PIC 4005, properly construed, requires a MOC to take into account:
(a) the category of the medical services to be provided;
(b) the frequency with which they are to be provided; and
(c) the period of time or duration for which those services would be likely to be required
and to apply the statutory criteria to those factors, as they apply to a hypothetical person in that position, to determine whether or not providing those medical or community services will constitute ‘significant cost;’
·in this review, medical and pharmaceutical services in the nature of antiviral pharmaceuticals and medical supervision were provided in the opinion. The RMOC’s assertion that the applicant’s wife would be eligible for treatment under the PBS in Australia and that this would be a ‘significant cost to the Australian community’ confirms that the RMOC had described the applicant’s wife’s condition as needing antiviral pharmaceuticals and involving liver injury, as these conditions are prerequisites for PBS benefits. This was a significant mistake of fact;
·the RMOC’s opinion ‘that a hypothetical person with this condition or disease, at the same severity as the applicant, would be likely to require health care or community services during the period specified,’ was flawed because the applicant’s wife was not eligible for PBS-funded treatment as she was not the hypothetical person with the same severity of the disease;
·in Haque, the Court held in providing opinions, the MOC is required to ‘act reasonably’ and that for any opinion to be ‘legally effective’, there must be facts, evidence or a logical basis for the opinion. In this review, there was no logical basis to include the cost of antiviral pharmaceuticals as part of the assessment. There was no evidence of the need for them. Although the RMOC did not quantify a cost in their opinion, it was clear that antiviral pharmaceuticals were included in the assessment. If the costs of antiviral pharmaceuticals were not included, the annual cost prescribed in Clinical Scenario 2 in the MOC’s Notes for a person with the applicant’s wife’s severity was $590.00. This was not a ‘significant cost to the Australian community;’ and;
·as stated in Robinson’s case (2005) FCA 1626, an objective test of likelihood is required to be based on the applicant’s diagnosis, and not simply a possibility based on a higher level of generality. As stated in Haque’s case, ‘the decision maker should only accept an opinion that is properly formed and not based on a significant level of mistaken facts.’ It was therefore requested that the Tribunal make a direction that PIC 4005(1)(c)(ii)(A) was met by the applicant’s wife.
The following supporting documents were also provided:
·B Positive – All You Wanted to Know About Hepatitis B: A Guide for Primary Care Providers, published by the Australasian Society for HIV Medicine, 2014;
·Victorian government fact sheet, Hepatitis B Factsheet for Clinicians, April 2016;
·report by Dr [A], 31 July 2019 in response to the RMOC opinion. Dr [A] state that ‘in relation to this applicant’s particular circumstances, this is incorrect [the RMOC’s opinon that on the basis of laboratory evidence of viral activity, she would be eligible for treatment under the PBS]. As stipulated in the PBS eligibility criteria (listed on the PBS website at non-cirrhotic HBeAg negative Hepatitis B patients [such as the applicant’s wife] not only require evidence of viral activity in excess of 2000 IU/mil, but also “evidence of chronic liver injury determined by confirmed elevated serum ALT or liver biopsy.” [The applicant’s wife] is not cirrhotic (as per abdominal ultrasound, fibroscan and normal platelet count) and has repeatedly demonstrated a normal ALT level, therefore she does not fulfil the PBS indication for subsidised treatment. Indeed, the Hepatitis B treatment guidelines of multiple liver societies such as the ASSLD, EASL, APASL and GESA all indicate that patients such as [the applicant’s wife] do not require treatment (even if they were hypothetically eligible on the PBS)… The PBS criteria described above are consistent with all currently antivirals including Entecavir, Tenafovir, Lamivudine and Adefovir… It should be noted, that the only circumstances where a patient would be eligible for PBS funded antiviral treatment solely on the basis of ongoing viral activity without the additional requirement for chronic liver injury is where a patient already has documented cirrhosis. [The applicant’s wife] has has no evidence of cirrhosis or even advanced fibrosis. She remains in phase 3 of the natural history of chronic Hepatitis 3 infection. The annual rate of relapse to a state of active hepatitis is estimated to be 2.2 to 3.3% (see attached references), and it is only in that circumstance [that she would] require antiviral therapy… Based on the above, the eligibility of [the applicant’s wife] for PBS funded treatment as suggested in the letter of the [RMOC] dated 30 April 2019 is not correct;’
·‘Natural History of chronic hepatitis B virus infection and long-term outcome under treatment,’ by Yun-Fan Liaw, Liver International 2009;
·abstract for article, ‘Natural history of hepatitis B e antigen to antibody seroconversion in patients with normal serum aminotransferase levels;’ and
·PBS entry on Entecavir.
The applicants appeared before the Tribunal on 30 July 2019 to give evidence and present arguments. The Tribunal also received oral submissions from their agent.
The applicants told the Tribunal that they had been living in Australia for over 9 years, having come as visitors earlier and having decided that they wanted to make their future here. The applicant said that in China, he was a [Occupation 3] but that he had re-qualified as a [Occupation 1] in Australia. Initially he worked in [various workplaces]. He now worked as an [Occupation 1] while assisting his wife with her [business]. The applicant’s wife told the Tribunal that she established the [business] several years ago and it was expanding. It now employed additional [staff] besides herself, and had a very multicultural clientele and focus. Both applicants told the Tribunal that they led healthy lifestyles and had no indication until the visa health examination that the applicant’s wife’s inherited Hepatitis B condition was an issue. They both told the Tribunal that the applicant’s wife was very healthy and was under the care of Dr [A], who was very diligent. Her health to date was fine, and there was very little indication that this was likely to change. She had no liver damage, felt fine and was not medically entitled to receive antiviral medication under the PBS, according to Dr [A]. They understood that there was virtually no likelihood that she ever would be entitled. The applicant queried the justice of the decision to refuse her a visa on health grounds, given these circumstances, and the fact that they were contributing to Australian society through the applicant’s [work] and his wife’s [business] community.
The Tribunal discussed a number of the legal issues it considered significant to the case with the applicants and their agent; namely, that there was no waiver in relation to PIC 4005 and subclass 190 visas, and that even if the Tribunal found that the latest RMOC was invalid for one or all of the reasons raised by the applicants’ agent, the Tribunal could not substitute its own decision that the applicant’s wife meets the health criteria in PIC 4005, as this could only be satisfied if there was a valid, positive MOC or RMCO opinion in relation to her. It proposed that it would refer the additional material and issues raised by the applicants’ agent most recently to the RMOC for clarification and/or a new opinion, taking into account this new material. After discussion with the applicants’ agent, the Tribunal agreed to defer doing this until the agent had provided additional legal submissions by 7 August 2019 addressing the new Departmental guidelines on assessment of the health criteria, which raised the ‘undue cost’ amount from $40,000 to $49,000, and which appeared to confine the period in consideration (even for permanent visas, such as the subclass 190 visa) to 10 years.
On 5 August 2019, the Tribunal received further supplementary submissions from the applicants’ agent, made particularly in light of the changes to immigration health policy as of 1 July 2019. They can be summarised as follows:
·in earlier submissions, it was argued that the RMOC’s opinion was not properly formed. Not only was the diagnosis based on a higher level of generality, the level of the condition against which the cost assessment was made, on a hypothetical basis was wrong as there were significant mistaken facts included in that opinion;
·it was further submitted that the RMOC’s opinion was not properly formed because the RMOC’s report was outdated in terms of how the costs assessment was made. From 1 July 2019, there were changes in immigration health policy which had resulted in the ‘significant cost threshold’ being increased from $40,000 to $49,000;
·in addition, the time frame over which costs can be assessed had been changed. Applicants for a permanent visa with a long term health condition or permanent disability will no longer be assessed for lifetime costs. Rather, the maximum period for assessment was now 10 years;
·although policy (as set out in the Department’s Procedures Advice Manual, or PAM3) is not legally binding on the Minister, the Department decision-makers or a Tribunal Member, it was generally followed unless the policy itself was inconsistent with the Act or Regulations;
·the new PAM3 as of 1 July 2019 states:
For permanent and provisional visa applicants, the time period for estimating significant health care and community service costs against the significant cost threshold (AUD 49,000) is calculated as follows:
If the applicant is aged less than 75 years: a 5 year period; or
If the applicant is aged 75 years or older: a 3 year period
Unless:
The applicant has a condition that is permanent and the course of the disease is inevitable or reasonably predictable (65% likelihood) beyond the 5 year period – in these circumstances, the applicant would be assessed for a maximum of 10 years. When assessing the costs, the MOC should estimate costs for a period up to a maximum of 10 years.
The applicant has an inevitable or reasonably predictable (65% likelihood) reduced life expectancy due to their health condition or disease – in this case, the applicant should be assessed for a time period up to a maximum of 10 years;’
·current PAM3 also stated that ‘the policy threshold for the level of costs regarded as significant is currently AUD 49,000;’
·given that the RMOC’s opinion was dated 30 April 2019, it cannot be said to be a full and proper assessment of the applicant’s wife’s health or the costs of the treatment at the time of decision because the RMOC was using what are now outdated guidelines;
·it was further submitted in the alternative that if the RMOC continued to rely on the significant mistaken fact which claimed that the applicant’s wife required antiviral pharmaceutical, the cost in the end is not significant;
·PIC 4005, in defining the ‘period’ for consideration, states in subparagraph (2):
(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;
·In Schedule 4, item 4005(2), the ‘period’ requires a start and end point in time. A period could not be defined by a commencement date only, there had to be an end date specified to ensure it is a period. In this review, the date of the visa application was 3 August 2016, and the end date should be 3 August 2026, as PAM3 provides that ‘the applicant should be assessed for a time period up to a maximum of 10 years;’
·when applying the MOC’s Notes for Guidance for Viral Hepatitis, the PBS Schedules for Entecavir and the current PAM3, the total cost in 10 years was $34,251.56. This was not a significant cost to the Australian community (as shown in the attached table);
·in summary, the RMOC’s opinion was not properly formed because the RMOC’s opinion was based on an assessment at a higher level of generality and probability, significant mistaken facts and an outdated immigration policy; and
·for all of the above reasons, the Tribunal should set aside the decision under review and find that the applicant’s wife meets PIC 4005 for the period of a permanent stay in Australia, and that the applicant’s wife satisfies PIC 4005(1)(c)(ii)(A).
The attached table is stated to be for ‘Antiviral Pharmaceuticals – Entecavir 500 microgram tablet 30’ and is as follows:
PBS cost
$358.59 (x 12 months)
$4,308.08
Ref: PBS Schedule dated July 2019
MBS cost
$590
Ref: MOC Notes July 2017, page 40
Total annual cost
$4,893
10 years from date of application
3/8/16
$-
3/8/17
$-
3/8/18
$-
3/8/19
$-
3/8/20
$4,893.08
3/8/21
$4,893.08
3/8/22
$4,893.08
3/8/23
$4,893.08
3/8/24
$4,893.08
3/8/25
$4,893.08
3/8/26
$4,893.08
Total costs for permanent stay
$34,251.56
On 22 August 2019, the Tribunal wrote to the Department to note that the applicants’ agent had argued that the MOC opinion of 30 April 2019 was invalid, and that the Tribunal also considered this to be the case, for the following reasons:
·it was based on an incorrect fact/assumption; that being that the second named applicant’s ongoing viral activity would render her eligible for treatment under the PBS. This assumption had been explicitly refuted by the second named applicant’s treating doctor, Dr [A], and was not consistent with the PBS guidelines on antiviral therapy, which stated that in order to be eligible, an applicant must have evidence of chronic liver injury determined by confirmed elevated serum ALT or liver biopsy. It was also not consistent with the MOC Notes on Viral Hepatitis; in particular, the section on oral antiviral treatments. Therefore, the ‘hypothetical person’ against whom the question of whether significant costs would be incurred by the Australian community is assessed was therefore too general when compared with the actual level of the second named applicant’s Hepatitis B condition; and
·the likely costs of a hypothetical person with the applicant’s condition were assessed against a now-outdated set of guidelines. At the time of the assessment, the Department’s Procedures Advice Manual (PAM3) on Schedule 4, PIC 4005, required that applicants for permanent visas were assessed over the course of their likely life expectancy and the policy threshold for the level of costs to be regarded as significant was $40,000. However, the post-1 July 2019 PAM3 guidelines on PIC 4005 (specifically, the section on ‘Significant Costs’) limit consideration of the period to a maximum 10 year period and set a new threshold for the level of costs to be regarded as significant at $49,000.
The Tribunal advised that, under the circumstances, it sought a valid, further MOC opinion based on the current PAM3 significant costs guidelines and for a hypothetical person with the second named applicant’s level of severity of Hepatitis B, taking into account the additional medical information provided by the applicants and their agent in response to receiving the MOC opinion of 30 April 2019.
On 28 August 2019, the Tribunal received a Form 884 – Opinion of a Review Medical Officer of the Commonwealth, dated 27 August 2019, stating as follows:
THE APPLICANT MEETS THE HEALTH REQUIREMENT
…
The applicant has been assessed against … PIC 4005 and meets the health requirement for a permanent stay in Australia.
My opinion is based on available medical and radiological reports.
Medical Office of the Commonwealth.
Position Number: [redacted by Tribunal]
A Medical Officer of the Commonwealth for the purposes of providing an opinion on whether prescribed health criteria under the Migration Regulations 1994 are met.
Bupa Medical Visa Services.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the second named 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 visa applicants, in certain circumstances, to undergo medical assessment, and to be free of certain diseases or conditions that may impact on the community. The second named applicant in this case was initially found not to meet PIC 4005(1)(c).
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 an 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 an 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 specified temporary visas, certain specified health care and community service are excluded from this consideration: 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.
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.
As noted above, the first 2 opinions of an MOC dated 9 June 2016 and 30 April 2019 respectively found that the second named applicant had applied for permanent residence, suffered from Hepatitis B, and that the costs to the Australian community would be significant (that is, over $40,000) for a hypothetical person with her condition, over her estimated life expectancy. As further noted above, the Tribunal considered that these MOC opinions were invalid due to new guidelines as to significant costs and the duration of which they had to be assessed as of 1 July 2019, and additional medical information specific to the second named applicant’s entitlement (if any) to antiviral therapy on the PBS.
A new RMOC opinion was provided on 27 August 2019 which indicates that the second named applicant has been (re)assessed against PIC 4005 and is now found to meet the health criteria for a permanent stay in Australia.
The Tribunal has considered whether the failure of the MOC opinion of 27 August 2019 to refer to the second named applicant’s specific condition of Hepatitis B, or a hypothetical person with that condition and the likely costs, means that this MOC opinion is invalid. However, it concludes that it is valid, when read in conjunction with the earlier 2 invalid MOC reports, which it purports to review, (which do mention the applicant’s specific condition of Hepatitis B, and a hypothetical person with that condition and the likely costs to the Australian community). Further, the Tribunal notes that the current MOC opinion is based on all of the available medical and radiological reports, which detail the form and level of the condition suffered by the second named applicant.
Accordingly, based on the opinion of the MOC of 27 August 2019, the Tribunal finds that the second named applicant satisfies public interest criterion 4005(1)(c).
Given the findings above, the appropriate course is for the Tribunal to remit the matter to the Minister for reconsideration of the remaining criteria for the visa.
DECISION
The Tribunal remits the application for Skilled Nominated (Permanent) visas for reconsideration, with the direction that the second named applicant meets the following criteria for a subclass 190 - Skilled - Nominated visa:
·PIC 4005(1)(c) for the purposes of cl.190.216 of Schedule 2 to the Regulations.
Alison Mercer
MemberATTACHMENT
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.
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