2212059 (Migration)

Case [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

  1. 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).

  2. 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…

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2212059 (Migration) [2024] AATA 615
Case
[2024] AATA 615
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by applicants for Skilled Nominated (Permanent) visas, who were refused on the grounds that their son did not satisfy Public Interest Criterion (PIC) 4005 of Schedule 4 to the Migration Regulations 1994. The dispute centred on the assessment of whether the son, who had mild autism spectrum disorder, would likely require health care or community services resulting in a "significant cost" to the Australian community. The decision was made by Deputy J.l Redfern Psm P.

The court was required to determine the validity of the Medical Officer of the Commonwealth (MOC) opinions relied upon by the delegate in assessing the son's eligibility under PIC 4005. Specifically, the applicants contended that the MOC opinions were invalid or improperly formulated, and that the assessment by the MOC of estimated costs for a hypothetical person with the same condition was too general and did not properly apply the statutory criteria. The court also considered whether the MOC had applied the correct test by assessing the condition and then applying the statutory criteria by reference to a hypothetical person suffering from that specific form or level of the condition, rather than a generic form.

The Deputy President noted that while MOC opinions are generally to be taken as correct if properly formulated, they must be based on the correct application of the relevant criteria. The court referred to established case law, including *Minister for Immigration and Multicultural Affairs v Seligman* and *Robinson*, which held that a MOC opinion is only binding if it is of a kind authorised by the Regulations and if the MOC has applied the proper test. The Deputy President accepted the submission that the MOC must ascertain the specific form or level of the applicant's condition and then apply the statutory criteria by reference to a hypothetical person with that precise condition, not a generic one. Despite finding that the MOC opinions were not demonstrably unlawful or inconsistent with policy, the Deputy President acknowledged the force of the applicants' submission that the estimated costs for a hypothetical person might be an overestimation given the son's existing improvement and the applicant's expertise in disability services.

Ultimately, the Tribunal affirmed the decision not to grant the visas. While acknowledging the potential harshness of the outcome due to the absence of a waiver provision for PIC 4005 and the son's Australian birth and positive response to early intervention, the Deputy President found that the MOC opinions, as formulated, led to the conclusion that the health care and community services required would likely result in a significant cost to the Australian community, thus failing to meet the criterion.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 PSMDeputy PresidentATTACHMENTMigration Regulations 1994Schedule 44005(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.

Ratio Decidendi

Legal Principle Established

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.