2212059 (Migration) - [2024] AATA 615

2212059 (Migration) [2024] AATA 615 (4 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS: [Applicant 1]
[Applicant 2]
[Applicant 3]

REPRESENTATIVE:  Mr Nishant Sharma
CASE NUMBER:  2212059
MEMBER:Deputy President J.L Redfern PSM
DATE:4 April 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Skilled Nominated (Permanent) visas.
Statement made on 4 April 2024 at 9:57am

CATCHWORDS:
MIGRATION – Skilled Nominated (Permanent) (Class SN) visa – Subclass 190 Skilled – Nominated – Requirement for members of the family unit of the primary applicant to meet the health criteria – Where primary applicant’s child does not meet health criteria – adverse Medical Officer of the Commonwealth (MOC) opinion – Public Interest Criterion 4005 – significant cost to the Australian community – MOC opinion invalid – Ministerial Intervention – principles concerning MOC opinion assessments – subsequent MOC opinion - Decision affirmed
PRACTICE 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
LEGISLATION:
Migration Act 1958 (Cth), ss 65, 349, 351
Migration Regulations 1994 (Cth), r 1.03, r 2.25A, Schedule 2, cl 190.216, cl 190.311, Schedule 4, Public Interest Criterion 4005
CASES:
Applicant Y v Minister for Immigration And Citizenship [2008] FCA 367
Dang v Administrative Appeals Tribunal [2019] FCA 220
Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs; DCM20 v Secretary of Department of Home Affairs [2023] HCA 10
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Han v Minister for Home Affairs [2019] FCA 331
Minister for Immigration and Multicultural Affairs v Seligman (1999) 85 FCR 115
Nellas v Minister for Immigration, Citizenship And Multicultural Affairs (No 2) [2024] FedCFamC2G 67
Ramlu v MIMIA [2005] FMCA 1735
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179
Robinsonv MIMIA (2005) 148 FCR 182
SECONDARY MATERIALS:
Committee for Economic Development of Australia (CEDA), Australia's Future Migration System, December 2022
Department of Home Affairs, Notes for Guidance for Disability Services, May 2023
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 which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
INTRODUCTION

This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 8 August 2022 to refuse to grant the applicants Skilled Nominated (Permanent) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on [date] [month] 2021. The delegate refused to grant the visa on the basis that the first named applicant, [name], did not satisfy cl 190.216(3) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because not every member of her family unit satisfied the health requirement in public interest criterion 4005 (PIC 4005) of Schedule 4 to the Regulations. [First named applicant] and her spouse, the second named applicant, [name], met the health criteria in PIC 4005 but the visas were refused because the delegate found that their son, [name], does not.
The refusal was based on a report received by the Department dated 23 June 2022 from the Medical Officer of the Commonwealth (referred to in this decision as the MOC) concluding that [the son], who has a diagnosis of mild autism spectrum disorder, did not meet the health criteria. [The son] was born in [month] 2019 and at the time of the assessment was three years old. For an applicant to satisfy cl 190.216, each member of the family unit must satisfy the health requirement in PIC 4005. Given that [the son] is a member of [first named applicant]’s family unit, her application was refused.
The applicants sought review of the refusal, and the Tribunal obtained an updated opinion from a MOC, referred to as the Review Medical Officer of the Commonwealth (RMOC), dated 4 September 2023. The RMOC found that the applicant did not satisfy PIC 4005 based on an assessment that certain Commonwealth disability and special education services would be needed by [the son] and that the provision of these 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 estimated cost of these services was $367,760.
The applicants appeared before the Tribunal on 1 February 2024 to give evidence and present arguments. [First named applicant] gave oral evidence.
The applicants were represented in relation to the review by their lawyer, Mr Nishant Sharma, who provided further evidence and helpful cogent submissions. The validity of the RMOC opinion was disputed. A further opinion was sought and this opinion, dated 15 February 2024, gave a revised estimate for costs of $140,700.
The revised RMOC opinion was provided to the applicants for response or comments and, by letter dated 8 March 2024, the applicants’ lawyer responded by providing detailed submissions requesting that this matter be referred to the Minister for consideration under section 351 of the Act.
For the following reasons, I have concluded that the decision under review should be affirmed. I recommend that this matter be referred to the Minister under s 351 of the Act for consideration of whether a more favourable decision should be made in the circumstances of this case.
RELEVANT LAW AND POLICY
The applicant made an application for a Skilled Nominated Subclass 190 visa, which is a permanent visa, on [date] [month] 2021. The occupation nominated was Registered Nurse (Disability and Rehabilitation), for which the applicant received a favourable skills assessment from Australian Nursing & Midwifery Accreditation Council.
As noted by the delegate in the decision, a visa cannot be granted unless the applicant meets the relevant legal requirements that are specified in the Act and the Regulations. Clause 190.216 of Schedule 2 to the Regulations sets out the requirements for a Skilled Nominated Subclass 190 visa that must be satisfied at the time of decision. Clause 190.216(3) relevantly provides that each member of the family unit of the applicant who is an applicant for a Subclass 190 visa must also satisfy PIC 4005.
The issue in this review is whether [the son], who is a member of the applicant’s family unit, meets PIC 4005. Public interest criterion 4005 is extracted in the attachment to this decision. It requires an applicant to undergo a medical assessment in certain circumstances and to be free of certain diseases or conditions that may impact the Australian community.
PIC 4005(1)(aa) requires that if the applicant is in a specified class of persons, he or she must undertake the specified medical assessment and be assessed by a specified person unless a MOC decides otherwise. PIC 4005(1)(ab) requires that the applicant comply with any request by a MOC to undertake a medical assessment.
PIC 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.
PIC 4005(1)(c) contains provisions dealing with general health-related diseases and conditions, requiring an applicant to be free from a disease or condition which would be likely to result in significant cost to the Australian community or would be likely to prejudice access of Australian citizens or permanent residents to healthcare or community services. Specifically, PIC 4005(1)(c) provides as follows:
The applicant:
………..
(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;..
PIC 4005(2) provides that the relevant period for assessing whether a person is free from a disease or condition for the purposes of PIC 4005(1)(c) is during the period commencing when the application is made for a permanent visa and, in respect of a temporary visa, the period for which the Minister intends to grant the visa or, if the visa is of a subclass specified by the Minister in an instrument, the period commencing when the application is made.
PIC 4005(3) excludes specific health care and community services from being included as part of the assessment of significant cost. This provision only applies to temporary visas.
The term ‘health care’ is not defined in the Act or Regulations but ‘community services’ is defined in reg 1.03 of the Regulations to include ‘the provision of an Australian social security benefit, allowance or pension’. The question of what is encompassed by costs associated with health care and/or community services is uncontentious.
Regulation 2.25A requires the Minister and, on review the Tribunal, to seek the opinion of a 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: reg 2.25A(3).
Notwithstanding reg 2.25A(3), the Tribunal must first be satisfied the MOC has applied the correct test in forming the opinion: Robinson v MIMIA (2005) 148 FCR 182 (per Siopis J) 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, the opinion must identify the form or level of the condition suffered by the applicant and the Medical Officer must have applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition. These principles have been established by judicial authority over the past 20 years and are discussed in more detail later in these reasons.
The Department has published procedural instructions to decision-makers to assist in the assessment of whether applicants meet the health requirements contained in Schedule 4 to the Regulations. The relevant procedural instruction is referred to as the Procedural Instruction for the health requirement.[1] The Procedural Instruction includes commentary about the purpose and scope of the health requirements and sets out detailed instructions about how assessments should be undertaken. The Department states that the purpose of this public interest criterion is to ensure the public health risks and health costs are not unduly increased by travellers and migrants.[2]
[1] Department of Home Affairs, Notes for Guidance for Disability Services, May 2023.
[2] Department of Home Affairs, Notes for Guidance for Disability Services, May 2023.
In Nellas v Minister for Immigration, Citizenship And Multicultural Affairs (No 2) [2024] FedCFamC2G 67, Judge Brown observed that the regulatory intent of public interest criterion 4005 is directed toward protecting members of the Australian community from potential threats which may arise to public health, in both actual and fiscal terms, from those applying to be permanent residents of Australia. He summarised the objectives as: protection for the Australian community from any threats to public health posed to it by any prospective permanent residents; containing the exposure of the Australian public to expenditure on health and community services arising from the needs of any such prospective permanent residents; and providing a safeguard for the access of Australian residents to access community services in short supply (at [7]).
His Honour noted that the relevant regulatory regime provides mechanisms for visa applicants and members of their family to undergo compulsory medical examinations in the context of these considerations. This regime envisages the calculation of the prospective exposure of the Australian public to liability to provide health and community services to a visa applicant by comparing a person with his level of disability to a hypothetical individual, with the same level of incapacity. Notably, and germane to the considerations referred to later in these reasons, his Honour observes that it is not relevant to the application of the public interest criterion that the person actually utilises such services to the degree estimated for such a hypothetical individual.
In addition to the Procedural Instruction for the health requirement, the Department has provided guidance to Medical Officers to assist them in making an assessment about whether an applicant meets this criterion. The guidance, which is also publicly available, comprises multiple documents and covers a broad range of health conditions and diseases. The policy document published by the Department relating to disability services, which is the policy guidance relevant to this case, headed ‘Notes for guidance for disability services’ dated May 2023 (the Disability Guidance Note).[3] The Disability Guidance Note is detailed and is said to deal with the ‘financial implications and consideration of prejudice of access to services associated with disability services’. It outlines the disability support services available in Australia and identifies applicable federal government funded disability payments, including estimated likely costs for applicants with various health conditions. These estimated likely costs are to assist Medical Officers, and others who review the Disability Guidance Note, in estimating ‘significant costs’ for the purposes of the health criterion. It is noted that, at the time of publication of the Disability Guidance Note, none of the identified disability services are considered to be in short supply. Accordingly, it appears that it is the Department’s current view that the provision of the available disability services for applicants would not prejudice the access of Australian permanent residents. This is consistent with the findings of the delegate.
[3] Department of Home Affairs, Notes for Guidance for Disability Services, May 2023.
BACKGROUND
The MOC opinion relied on by the delegate dated 23 June 2022 noted that the [the son] was a three-year-old person with mild autism spectrum disorder. It was further noted that he had associated language delay and, while he had shown significant improvement in his language skills with therapy and increased daycare attendance, he continued to require therapy for speech delay. The MOC took into account various reports provided in June 2022, including reports from [the son]’s paediatrician and early learning centre. There was no breakdown of the estimated cost likely to be incurred but it was concluded, firstly, that a hypothetical person with the condition identified and at the same severity as [the son] would be likely to require health care or community services during the period specified and, secondly, that these services would be likely to result in a significant cost to the Australian community. As such, the applicant did not satisfy para 4005(1)(c)(ii)(A) in Schedule 4 to the Regulations and therefore did not satisfy PIC 4005.
The RMOC dated 4 September 2023 noted that at the time of the visa application [the son] was two years old. He was assessed with mild autism spectrum disorder as evidenced by developmental delay, particularly for language, repetitive and restricted behaviours and impairment in communication and socialisation skills. It was also noted that he required early intervention services including speech and occupational therapies to develop communication and social skills. It is further reported that for the purpose of RMOC, and in line with para 4005(2)(a), the [the son] was assessed as a two-year-old person to reflect their age at the time of the visa application. The RMOC made an assessment based on services to be provided to a hypothetical person with the same condition as [the son]’s and with the same severity. It was noted that the condition was likely to be permanent and it was concluded that [the son] would be likely to need Commonwealth disability and special education services. The estimated total cost was $367,760, which comprised Commonwealth disability for early intervention services from the age of two years old to seven years old totalling $41,100, carer payments totalling $229,760 and special education services totalling $96,900. It was concluded 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 preparing this opinion, the RMOC had regard to a number of updated reports and assessments, including a report from the [the son]’s paediatrician dated 18 July 2023 and updated statements about [the son]’s activities.
It was submitted that this report was invalid because the opinion did not take into account the level of the condition suffered by [the son] when applying the hypothetical person test. The RMOC had not assessed the significant progress made by [the son] and had assessed him as he was when he was a two-year-old child. A further medical report was provided to the Tribunal dated 6 December 2023 which noted as follows:
[The son]’s skills are improving since he has been attending the childcare and allied health sessions. He fulfils the DSM – 5 criteria for diagnosis of autism spectrum disorder (ASD) Level I. He can attend mainstream classes and he does not require substantial amount of support.
[First named applicant] also provided a ‘Summative assessment’ from [an Early Learning Centre] at Campsie dated 6 December 2023. Amongst other things, the assessment noted that [the son] was working towards cooperating with others and establishing relationships with his peers. It was noted that he could communicate verbally and non-verbally.
The applicants provided details of Medicare claims made in respect of [the son] between December 2020 and December 2023. This information showed that Medicare funded costs for [the son] in this period totalling approximately $2,670.10.
It was submitted that if the RMOC had made a proper assessment of the needs of [the son], these costs may have been less than $51,000, which was under the Department threshold for “significant costs”. It was requested that a further RMOC be obtained to take these matters into account.
I accepted the concerns raised in the submissions about the RMOC opinion and, for reasons that will be explained later in these reasons, additional information was referred to the RMOC for further assessment. It was also requested that the RMOC make the assessment based on [the son]’s current condition and not on his condition when he was two years old.
On 15 February 2024 the Tribunal was provided with an updated RMOC. The updated RMOC opinion concluded that [the son] would be likely to need special education services, assessed to be in the vicinity of $96,900, and Commonwealth disability services for early intervention services assessed as $43,800. The estimated total cost of these services was $140,700. It was therefore concluded that the provision of these services would likely result in a significant cost to the Australian community in the areas of health care and community services. The RMOC took into account the updated material provided by the [first named applicant], being the report from the paediatrician and [the Early Learning Centre] and concluded that carer payments would not be required. These were excluded from the revised estimate of costs. This resulted in a significant reduction in the estimate of costs as the estimated carer payments were the largest component of the previous assessment.

This updated RMOC opinion was provided to the applicants by letter dated 23 February 2024 as adverse information. The applicants did not dispute the updated RMOC opinion but made submissions requesting the Tribunal make a recommendation for Ministerial intervention.
ISSUES FOR DETERMINATION
There is no dispute that all applicants in this case were required to undertake, and did in fact undertake, a medical assessment by a MOC. As such, the requirements in paras 4005(1)(aa) and (ab) are met.
There is no evidence that [first named applicant] or any of her family have tuberculosis or 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. This was not raised by the delegate or the MOC, nor has it been raised by the RMOC. I therefore find that the requirements in paras 4005(1)(a) and (b) are met.
In this case, the delegate found that [first named applicant] did not meet cl 190.216(3) because her [the son] did not satisfy para 4005(1)(c) as he had mild autism spectrum disorder and his condition, which was permanent, would be likely to require health care or community services during the relevant period which would be a ‘significant cost’ to the Australian community. This finding was based on a MOC opinion dated 23 June 2022. Subsequent RMOC opinions have also found that [the son] does not meet PIC 4005.
As such, the determinative issue in this case is whether [the son] meets the requirements of para 4005(1)(c).
To decide this issue, the Tribunal must consider two questions.
The first question is whether [the son] is free from a disease or condition in relation to which he would be likely to require health care or community services commencing from when the application was made, namely when he was two years old. It is accepted that [the son] has mild autism spectrum disorder and that he has required, and will require, health care and community services commencing from the time of the application. Notably, there is evidence provided by the applicants that health care and community services have already been accessed for [the son].
The second question is whether the provision of health care or community services would be likely to result in a significant cost to the Australian community in the areas of health care and community services. This is the nub of the dispute.
It is an important issue for the applicants because there is no waiver or discretion if PIC 4005 is not satisfied.
CONSIDERATION
The application was made on [date] [month] 2021 and the period against which the health requirement must be assessed is from this date. At the time the application was lodged, [the son] was two years old.
There is no dispute in this case that a MOC opinion is required. Nor is there dispute that the MOC opinion, and the updated RMOC opinions, are adverse to the applicants because the cost assessed is said to be ‘significant’. The estimated cost exceeds $51,000, which is the amount nominated by the Department in its Procedural Instruction for the health requirement as being the policy threshold for the level of costs regarded as significant.[4]
[4] Department of Home Affairs, Notes for Guidance for Disability Services, May 2023.
Unless government policy is unlawful or there are cogent reasons to depart from the policy, the Tribunal should have regard to relevant government policy. However, policy should not simply be applied without independent scrutiny and to do so would be an error of law: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 and Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179.
Having reviewed the Procedural Instruction for the Health Requirement and the Disability Guidance Note, I am of the view that neither of these policy documents are inconsistent with the Act, the Regulations or case law, nor was there a submission to this effect. They are comprehensive, relevant and promote consistency based objective medical and healthcare information.
The applicants contend that the first RMOC is not binding on the Tribunal because it is invalid or is not properly formulated. The applicants do not take issue with the revised RMOC but I must nonetheless still consider its validity as it forms the basis for the assessment on whether the health care and community services required for [the son] would likely result in significant cost.
Opinions of the Review Medical Officer of the Commonwealth – are they valid?
Questions about the impact of Medical Officer opinions on the assessment of the health requirements for certain visas and the validity of those opinions have been judicially considered on numerous occasions by the Federal Court.
In Minister for Immigration and Multicultural Affairs v Seligman (1999) 85 FCR 115, the Full Court held that the delegate is only entitled and obliged to take the Medical Officer’s opinion as correct if it is an opinion of a kind authorised by the Regulations.
In Robinson, the Minister accepted that, even though Seligman was decided before the privative clause provisions were introduced to the Act, the nature of the error identified by the Full Court in that case would be a jurisdictional error. Accordingly, Siopis J found, referring to Seligman, that the question of whether there had been jurisdictional error would depend on whether the medical opinion was binding on the Tribunal pursuant to reg 2.25A(3) of the Regulations. This in turn would depend on whether the Medical Officer has applied the proper test by which to assess the matters referred to in PIC 4005. In considering this matter, his Honour accepted the submission of the applicant and found as follows at [43]:
A proper construction of Public Interest Criterion 4005 of the Regulations, requires the MOC to ascertain the form or level of condition suffered by the applicant in question and then to apply the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition. It is not the case that the MOC is to proceed to make the assessment at a higher level of generality by reference to a generic form of the condition.
This issue was further considered by Tamberlin J in Applicant Y v Minister for Immigration And Citizenship [2008] FCA 367. His Honour, in citing the authority of Seligman, noted that where the Minister is required by regulation 2.25A(3) to take the opinion of the Medical Officer of the Commonwealth as correct, but this was subject to a qualification that any such opinion must address whether the relevant requirements were satisfied at the time of the Minister’s decision at [18]. His Honour further explained that the Tribunal cannot generally disregard a substantial lapse in time between the issue of a MOC report and the making of its decision stating, at [20] as follows:
… Whether further investigation is required will depend on an assessment of all the circumstances of the case, including the amount of time that has elapsed between the issue of the MOC’s report and the Tribunal’s decision, any evidence of change (and, in particular, improvements) in the applicant’s health, and the degree to which any other medical opinions demonstrate a lack of currency and reliability in the opinion of the MOC.
In Han v Minister for Home Affairs [2019] FCA 331, Bromwich J rejected the contentions of the applicant that the MOC opinion relied on by the delegates and the Tribunal was invalid. In so doing, his Honour referred to the distinction between making the hypothetical assessment, as required, and making an assessment by reference to the costs in fact being being incurred or likely to be incurred. His Honour notes at [63] that “even if that information might in some way assist in the hypothetical assessment, it is “entirely a matter for the MOC as to how such information is brought to bear for that purpose”. He further observes:
To require the MOC to have regard to that actual information in some particular way not only encroaches on the assessment task in the nature of impermissible merits review, but is, in substance, to make it a predictive exercise in relation to Ms Han’s specific circumstances, of a kind that has clearly been eschewed by Parliament in favour of the hypothetical.
In Dang v Administrative Appeals Tribunal [2019] FCA 220, the Full Court (Kerr, Colvin and Jackson JJ) considered, amongst other things, whether the assessment taken by the Medical Officer sufficiently identified the nature and extent of the relevant medical condition. The process to be undertaken by a Medical Officer was explained as follows, per Colvin and Jackson JJ at [30]:
It seems unlikely that expertise as a medical practitioner would inform or qualify the Medical Officer as to the making of an assessment of that kind. The fact that the formation of the required opinion is entrusted by the legislation to a medical practitioner informs the proper construction of the provision. A medical practitioner may be able to form a view, based upon medical expertise, as to the likely prognosis and consequently the likely extent in general terms of the level of health care and community services that may be required in caring for a person with a particular type of condition over a lifetime. Based on that general assessment, perhaps aided by inquiry, the practitioner will then be able to make an informed judgment as whether the cost of providing that level of services will likely be significant and also whether the services are readily available (such that additional demand might prove difficult to meet without prejudicing access to the same service by an Australian citizen or permanent resident).
It is further observed at [39]:
The decision in Robinson exposes the need for the Medical Officer to form the opinion as to the likely provision of health and community services by reference to an hypothetical person with the relevant form or level of condition. The degree of particularity required will depend upon the extent to which there is diversity in the experience for those with the particular type of condition. That is to say, it is purposive and informed by the nature of the opinion that the Medical Officer is required to form.
In Dang, it was accepted that the Medical Officer proceeded on a correct understanding of the test to be applied. The appellant contended that the description of the form and severity of the applicant’s condition as a person with Down syndrome as being an 11 year old with moderate intellectual impairment was not sufficiently particular to enable the Medical Officer to perform the statutory function of forming an opinion as to the general extent of health care or community services likely to be required by a person with the same form and level of condition. The plurality found (Colvin and Jackson JJ at [47]) that there was no evidence as to whether that description has a specific, well understood meaning or whether the form of words might be sufficiently particular in its ordinary meaning for the test to be applied. It was further noted:
Without evidence of that kind, the Court is not in a position to find that the description was insufficiently particular to enable the Medical Officer to perform the statutory function of forming an opinion of the required kind.
It was noted that the statutory task did not require a detailed calculation, but rather an identification in broad terms of the nature of the services likely to be required. In the absence of expert evidence as to why a more detailed description of the particular level of severity of the expression of the condition is required to undertake this statutory task, jurisdictional error had not been demonstrated (at [49]).
Accordingly, the principles can be summarised as follows:
(1)In forming a view about whether an applicant meets para 4005(1)(c), it is necessary for the decision-maker to consider whether an applicant would be likely to require health care or community services, the provision of which would be likely to result in significant cost to the Australian community in respect of those services, or would be likely to prejudice the access of an Australian citizen or permanent resident to those services.
(2)In assessing the matters referred to in (1) the decision-maker must take the opinion of the Medical Officer of the Commonwealth to be correct. However, the opinion will only be binding on the decision-maker if it is valid and the Medical Officer has applied the proper test for making the assessment.
(3)The Medical Officer must apply the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition. The assessment must be made at the time of decision having regard to the prescribed period for the assessment which, in the case of a permanent visa, commences from the time of the application. This does not mean that the assessment must be made having regard to the age or condition of the applicant at the time of the application but rather that the assessment must commence from that time.
(4)To properly perform the statutory task it is not necessary for the Medical Officer to make an assessment of the actual costs incurred or likely to be incurred, nor is it necessary for the Medical Officer to have regard to a more detailed description of the particular level of severity of the condition. The question will be whether there is evidence of improvements in the applicant’s health to such a degree to demonstrate a lack of currency and reliability in the assessment as to the requirements for health care and community services. The focus is on an assessment by reference to a hypothetical person who suffers from the form or level of condition or disease suffered by the applicant in question, which must be made at the time of the decision. Where there is diversity in the experience for those with a particular type of condition, it may be necessary for a Medical Officer to consider more detail about the nature and extent of the condition. This may seem to make a fine distinction between the requirements of a hypothetical person with a particular condition and the requirements of the applicant in question by reference to their particular circumstances. Cases that turn on this distinction have been the subject of numerous appeals to the Courts.
(5)The assessment by a Medical Officer about whether an applicant would be likely to require health care or community services and whether the provision of those services would be likely to result in a significant cost, is for the Medical Officer to determine, assisted by the Procedural Instruction and the relevant Department guidance, in this case the Disability Guidance Note.
(6)Provided the Medical Officer has applied the statutory test, has considered updated information and has made the assessment by reference to relevant updated information and the relevant Department policy and guidelines, the opinion is valid and the Tribunal is bound by the opinion of the Medical Officer.
(7)If a Medical Officer finds that the applicant would be likely to require health care or community services and the provision of that health care and services would be likely to result in a significant cost to the Australian community, the Tribunal must find that the applicant does not meet para 4005(1)(c).
In this case, the first RMOC opinion expressly states that [the son] has been assessed as a two-year-old person to reflect his age at the time of the visa application. While there were additional references to assessing [the son] by reference to the provision of services to a hypothetical person with the same condition and severity as [the son], it was not clear from the opinion how the child’s improvements had been taken into account in assessing his condition and needs. In particular, the reference to [the son] requiring full-time carer services for eight years in the sum of $229,760 suggested that the Medical Officer did not take into account the nature and severity of the child’s condition given his relatively high level of functioning as outlined by his paediatrician and in the material provided to the Tribunal.
Both RMOCs make reference to DSM-5. DSM-5 is a reference to the fifth edition of the Diagnostic And Statistical Manual of Mental Disorders published by the American Psychiatric Association. It is the standard reference that health care providers used to diagnose mental and behavioural conditions, including autism. There are three levels of severity for the autism spectrum disorder: namely Level 1, where the person has deficits in social communication which require support; Level 2 where there are marked deficits in verbal and non-verbal social communication which require substantial support; and Level 3, where there are severe deficits requiring very substantial support.
While there was a reference in the first RMOC opinion to a more recent report assessing [the son] at Level 1 in severity on the autism spectrum (i.e. [Dr L.C], dated 18 July 2023), there was also a reference to earlier reports which assessed [the son] as having deficits in social communication and reciprocity consistent with Level 1–2 on the autism spectrum disorder ([Dr F.C], dated 18 January 2022). This assessment was made over two years ago when [the son] was two-and-a-half years old. Assessing the requirements of a person who is diagnosed to be Level 1 on the autism spectrum is vastly different from assessing the requirements of a person who is on Level 2 or Level 3.
It was for this reason that I was not satisfied the first RMOC was valid and requested a further assessment, having regard to updated material provided by the [first named applicant] and drawing attention to the need to make an assessment as at the time of decision, not at the time of application when [the son] was two years old.
The second RMOC opinion, while again incorrectly stating that [the son] should be assessed as a two year old, appears to take into account his improved condition in making the assessment of costs. Relevantly, the Medical Officer refers to the latest paediatrician report noting that [first named applicant]’s son meets the DSM-5 criteria for diagnosis of autism spectrum disorder, Level 1. The revised RMOC opinion removes the reference to the need for carer payments for eight years but takes into account special education and early intervention services. It is clear from the costs that the Medical Officer has included in the revised opinion that he or she has had regard to the types of services assessed as being required for a male who has mild cognitive impairment under Scenario 2 in Appendix A of the Disability Guidance Note issued in May 2023. The level of severity described in Scenario 2 is where the person is having difficulty in reading, comprehending and writing but has good everyday living skills. It is further noted that a person with mild cognitive impairment may need modified programs in some learning areas at school and may need assistance with planning and organising activities. The case study in Scenario 2 appears to be consistent with autism spectrum disorder, Level 1.
The applicants contended that special education services of approximately $96,000 should be excluded from the assessment because there is evidence to the effect that [the son] will be able to attend a mainstream school. It is also submitted that the fact that [the son] has not used extensive health care or community services to date should be taken into account in assessing whether significant costs would be likely to be incurred. I reject both contentions.
Special education services include support services and modified programs in mainstream school and the inclusion of these costs is consistent with the disability services set out in the Disability Guidance Note. [The son] may do so well with early intervention that, over time, he may not need intensive special education services. However, it is impossible to know how [the son] will develop and the assessment process is necessarily predictive based on certain diagnostic norms.

Similarly, the fact that the services provided to [the son] to date have been modest is not a relevant consideration according to the judicial authorities, other than insofar as it may be useful in assessing the condition of the relevant applicant and resultant health care or community services that would be likely to be required for that condition. It is also relevant to note that the question of whether the identified health care or community services will actually be used in connection with the applicant is expressly excluded under para 4005(1)(c)(ii).
The revised RMOC opinion assesses the likely costs that would be required as $140,700, which is more than the mandated department threshold for significant costs. I am satisfied that the opinion is valid. While the revised RMOC opinion makes reference to the fact that the applicant should be assessed as a two-year-old person, this is a misunderstanding about the effect of para 4005(2)(a), which speaks of the period for the assessment not the time of the assessment. This does not itself make the RMOC opinion invalid and I note that the opinion otherwise appears to take into account the relevant updated material and makes an assessment of costs by reference to the Department Procedural Instruction and the Disability Guidance Note. As already noted, these policy and guidance documents seem to be consistent with the legislative framework. There is no submission to the contrary.
I therefore find that the first RMOC opinion was not valid but the revised RMOC is valid. The validity of both RMOCs is an interesting question in this case. Both conclude the provision of health care or community services to [the son] would be likely to result in a ‘significant cost’ to the Australian community, albeit both rely on slightly different information and make different assessments about what services are required. Ultimately, it does not matter because the relevant medical opinion, which I must take to be correct, is to the effect that [the son] does not meet para 4005(1)(c).
Findings
As noted above, cl 190.216(3) requires each member of the family unit of the applicant who is an applicant for a Subclass 190 visa to satisfy PIC 4005. [The son] is a member of the [first named applicant]’s family unit and was included in her application for the Subclass 190 visa. As [the son] does not satisfy para 4005(1)(c), it follows that [name], the first named applicant and primary applicant for the Subclass 190 visa, does not satisfy cl 190.216(3) for the grant of the visa. It therefore follows that [first named applicant] cannot meet the primary criteria for the grant of the subclass 190 visa.
[Second named applicant] and [the son], the second and third named applicants, are secondary applicants. They are members of [first named applicant]’s family unit. They must satisfy the secondary criteria, relevantly in this case, cl 190.311. Clause 190.311 provides that the applicant must be a member of the family unit of a person who holds a subclass 190 visa granted on the basis of satisfying the primary criteria for the grant of the visa. Because [first named applicant] cannot satisfy the primary criteria for the grant of the visa, [second named applicant] and [the son] cannot meet the secondary criteria.
Accordingly, the visas must be refused and I must therefore affirm the decision under review.
MINISTERIAL INTERVENTION
Guidelines
Under s.351 of the Act, the Minister may substitute for a decision of the Tribunal under s 349 of the Act another more favourable decision if he or she thinks that it is in the public interest to do so. This discretion is broad and the Minister may make a more favourable decision, whether or not the Tribunal had the power to make that other decision.
The Minister has issued guidelines relating to the Minister’s discretionary power under s.351 of the Act and these are set out in the Department’s Procedural Advice Manual 3 (PAM3) ‘Act – Ministerial powers – Minister’s guidelines on Ministerial powers (sections 351, 417 and 501J)’. The most recent guidelines were issued in 2016. The Ministerial Instruction directs departmental officers not to refer a request to exercise the power conferred by s.351 of the Act to the Minister unless the case has one or more of the unique or exceptional circumstances referred to in section 4 of the Guidelines. Section 5 refers to relevant information that departmental officers should provide to the Minister if a request is referred and section 7 of the Guidelines sets out those circumstances where it would be inappropriate for the Minister to consider intervention. Section 6 notes that intervention powers are not available if there is no review decision or the Minister has exhausted his or her powers in relation to the review.
In Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs; DCM20 v Secretary of Department of Home Affairs [2023] HCA 10, the High Court considered the lawfulness and the nature and extent of the Instruction. Keifel CJ and Gageler and Gleeson JJ held that the Minister may instruct officials to implement the Minister’s procedural decision (by instructing the screening out of requests based on objective criteria) or the Minister may seek advice and assistance to enable the Minister to make a decision. Justice Jago also found that the Minister may obtain assistance and advice from departmental officers in exercising the power but noted that there were procedural and substantive aspects to the power which could not be delegated. Justice Edelman found that departmental officials could not lawfully exercise the Minister’s personal liberty to refuse to consider the requests for Ministerial Intervention made by Mr Davis and DCM20. Justice Stewart did not agree and dismissed the appeals.
This is an oversimplification of a complicated decision by the High Court about the 2016 Ministerial Instruction to departmental officers which may result in a revision of the Instruction. However, the High Court decision does not directly impact my recommendation for referral for Ministerial intervention and, in the absence of new guidelines, I have used the existing guidelines as a basis for my recommendations. I also note that the applicants have based their submissions on the Guidelines.
Section 3 of the Guidelines (Ministerial intervention principles) notes that consideration of a case for intervention is at the Minister’s discretion and is not an extension of the visa process. If a person has a visa pathway available to them, including an offshore pathway, it is noted that it is generally not appropriate for the Minister to intervene. It is also noted that it is expected that a person requesting the Minister’s intervention would be a lawful noncitizen if they are in the community when they make their intervention request and that they should remain a lawful non-citizen until the request is finalised.
Section 4 of the Guidelines provides that cases that have one or more unique or exceptional circumstances, such as those described in the section, may be referred to the Minister for possible consideration of the use of intervention powers. There are seven matters listed within section 4, four of which it is contended apply to the applicants, being matters where there are:
§Strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or an Australian permanent resident
§compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious ongoing and irreversible harm and continuing hardship to the person
§exceptional economic, scientific, cultural or other benefit would result from the person being permitted to remain in Australia
§circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case
Section 5 of the Guidelines refers to other relevant information which may be considered in exercising the power. Relevant to the circumstances of this case, that information includes information about Australia’s obligations under the Convention on the Rights of the Child and the best interests of the child, which must be treated as a primary consideration, and the level and nature of the person’s integration into the Australian community and the length of time they have been in Australia both as lawful and unlawful non-citizens.
Section 7 of the Guidelines refers to the cases where it would not be appropriate for the Minister to consider intervention. This section notes that the Department may finalise these matters without referral to the Minister. There are 19 matters listed in the section, none of which apply to the applicants.
Recommendations in relation to Ministerial intervention
Having considered the guidelines in the circumstances of this case, I am of the view that there are strong grounds for this application to be referred to the Minister and for Ministerial intervention to be considered.
This is not a case where the refusal of the visa leads to serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or Australian permanent resident. None of the applicants in this case are Australian citizens or Australian permanent residents. I therefore reject this submission. However, I accept that there are compassionate circumstances in relation to [the son] that if, not recognised, would result in serious, ongoing and potentially irreversible harm and continuing hardship to him. He was born in Australia, he has resided in Australia since his birth and is not proficient in the Nepalese language. I accept that he has a deep connection to the Australian community and, if he and his family were compelled to return to Nepal, he may experience psychological distress, cultural disorienation and, most importantly, the ongoing treatment for his mild autism spectrum disorder is likely to be compromised. I accept that he may be disadvantaged in the health care and early intervention available to him in Nepal.
A significant factor in this case is that [first named applicant] has been working in a critical sector in Australia since 2019. She studied her Bachelor of Nursing and has been working in this field for many years. Nursing has been identified as a profession in respect of which there is a shortage. She specialises in disability and rehabilitation. According to submissions provided by the applicants’ lawyer, nurses make up more than half of Australia’s health care workforce. They are primary caregivers and their involvement is essential to the delivery of healthcare in Australia. Mr Sharma notes that the health care for sector faces a projected shortage of over 110,000 aged care workers within the next decade and despite an 18% increase in nurse registrations since 2019, there remains a shortage of nurses in aged care and remote areas.[5] I accept these submissions. The shortage of health care workers in Australia and, in particular, registered nurses, is well known. This is a factor which clearly falls within the guideline of exceptional economic or other benefit which would result from [first named applicant] and her family being permitted to remain in Australia.
[5] Committee for Economic Development of Australia (CEDA), Australia's Future Migration System, December 2022.
It is further submitted that there would be unintended consequences in applying PIC 4005 in in this case because the MOC opinions, which are necessarily based on estimated costs for a hypothetical person with the same condition as [the son], are likely to be an overestimation of costs in the circumstances of this case. I accept that there is force to the submission. [The son] has already had active intervention and his condition has significantly improved. The assessment that has been made is based on a person with the same condition as [the son] who may, or may not, need the special education services estimated. If these costs were not in fact incurred (and this is a possibility), [the son] would have either fallen outside the assessment of significant cost or may have only modestly exceeded it. There is no provision for a waiver in relation to PIC 4005 and the resultant refusal of the visa appears to be somewhat harsh in the circumstances of this case. [The son] was born in Australia and, while he has mild autism spectrum disorder, there is evidence that he has had effective early intervention. It is also relevant to note that [first named applicant] has an expertise in providing disability and rehabilitation services and will be in the position to provide ongoing care and support for [the son]. She has studied a profession which is recognised as being in short supply and is working and has continued to work in this profession since she finalised her nursing qualifications.
DECISION
The Tribunal affirms the decision not to grant the applicants Skilled Nominated (Permanent) visas.
J.L Redfern PSM
Deputy President

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.