OCHOA (Migration) - [2019] AATA 2159

OCHOA (Migration) [2019] AATA 2159 (12 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr DARWIN ROY OCHOA
Ms RAQUEL CABERTO
Miss MARGRETH VIOLET NUSSH OCHOA
Mr ULRIK TYLER OCHOA
CASE NUMBER:  1817424
DIBP REFERENCE(S):  BCC2016/3203576
MEMBER:Alan McMurran
DATE:12 April 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) visas.
Statement made on 12 April 2019 at 1:07pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – health – adverse MOC opinion – extended time provision for further medical evidence – compassionate circumstances per Minister’s guidelines – Ministerial intervention requested – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 351, 359, 360, 362
Migration Regulations 1994, Schedule 2, r 2.25A, PIC 4005, cl 187.235
CASES
Islam v MIBP [2015] FCCA 2210
MIMA v Seligman (1999)85FCR115
Ramlu v MIMIA [2005] FMCA 1735
Robinson v Minister for Immigration and Indigenous Affairs [2005] FCA 1626

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 14 June 2018 to refuse to grant the applicants Regional Employer Nomination (Permanent) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 27 September 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.187.235 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.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant is a citizen of the Philippines and is applying for a Regulation 187 visa for permanent residence in the Direct Entry stream. The applicant has included three family members in the application. The family members include the applicant’s son, Ulrik Tyler Ochoa (Ulrik), who is now 10 years old as at the date of decision.
It is a criterion of the Regulation 187.235 that each member of the family unit of the applicant, and the applicant, satisfies PIC 4005, which in turn requires that they are free from a disease or condition in relation to which the provision of the healthcare or community services likely, would result in a significant cost to the Australian community in the areas of health care and community services. The criterion applies to each member of the family unit of the applicant. Ulrik is a member of the family unit and must meet the criterion.
Ulrik has been diagnosed with a condition as set out below. The condition was subject to a report from a Medical Officer of the Commonwealth (MOC) on 1 December 2016. That report was relied upon by the delegate in the decision made by the Department to refuse to grant the visa on 14 June 2018. It is that decision which is the subject of this review.
Tribunal History
This application for review together with the delegate’s decision was lodged on 14 June 2018, being the date of decision by the delegate, and the date the decision was notified to the applicant.
The Tribunal wrote to the applicant on 21 September 2018 providing an opportunity to obtain a further opinion from the MOC. The representative for the applicant responded by letter on 28 September 2018 to the Tribunal enclosing a request for a further MOC opinion. The case officer telephoned the applicant’s representative on 4 October 2018 to ask if the applicant wished to submit any further medical information or reports, as the only medical documents available were those previously submitted, and which were reviewed in the original MOC report which was unfavourable to Ulrik. The Tribunal indicated it was willing to give an extension of time if requested, in order for the applicant to be able to provide further medical evidence. The Tribunal’s response was confirmed in writing by an email on 5 October 2018 again confirming an extension of time would be granted if requested.
The respondent replied on 5 October 2018 requesting that the Tribunal defer referral for a further MOC opinion until “it receives a further medical opinion from the child’s two other specialist paediatrician as to the latest medical condition of the child’s autism disorder”. The letter attached a referral request to doctors Aggarwal and Garg as treating specialists. The Tribunal responded and extended the time for provision of further medical evidence by the applicant to 26 October 2018.
On 26 October 2018, the Tribunal invited the applicants to a hearing proposed for 9 November 2018.The applicant provided a report from Dr Garg only, dated 16 October 2018, attaching school certificates and awards in the name of Ulrik, from Bidwill Public School. The report from Dr Garg refers to the “observations of Ulrik’s previous paediatricians” and opines that he “would still fulfil the criteria for a diagnosis of autism spectrum disorder.” He opines that “Ulrik has a significant learning difficulty. Ulrik may respond to stimulant medication for his attentional weakness and impulsivity.”
On 31 October 2018, the Tribunal wrote to the MOC requesting a further medical opinion, and included the medical information provided by the applicant on 26 October 2018. On 5 November 2018, the Tribunal received the requested further medical opinion dated 2 November 2018 (“RMOC”). That opinion concluded that the applicant still did not satisfy PIC 4005 (1) and opined that “a hypothetical person with this disease or condition, at the same severity of the applicant, would be likely to require healthcare or community services for the period of the applicant’s permanent stay in Australia”.
On 6 November 2018, the applicant’s representative advised the Tribunal he was “in the process of the drafting outline of submission and we would be pleased if you can provide us a copy of the report”. The same day, the Tribunal received the applicant’s response to the Tribunal hearing invitation identifying those persons who would appear for the hearing proposed for 9 November 2018.
On 6 November 2018, the Tribunal wrote to the applicant under section 359A, providing a copy of the report from the RMOC dated 2 November 2018, and asking for a response or comments in reply to that opinion by 20 November 2018.
The Tribunal also informed the applicant the hearing date had now been cancelled, as the time for the applicant’s response was later than the proposed hearing date. The Tribunal’s letter of 6 November 2018 set out the particulars of the information being the RMOC report and informed the applicant that if there was no reply on the due date of 20 November 2018, the applicant would lose any entitlement to appear to give evidence and present arguments.
On 19 November 2018, the applicant’s representative requested from the Tribunal access to documents being all communications sent to the RMOC in relation to the health assessment of Ulrik, and “copies of attachments/doctors report/psychologist or any other assessment of documents sent to the MOC.” The applicant’s representative also made detailed submissions in a letter dated 19 November 2018 referred to below.
On 22 November 2018, the representative wrote to the Tribunal and requested access to documents under section 362A of the Act. The letter in summary requested the panel physician report, assessment of activities of daily living, chart of early childhood development of 28 November 2016, copies of any costings or cost impact statement made by the MOC, and communications including referral letter by the Tribunal to the MOC. At the same time, the representative withdrew a previous FOI request.
On 7 December 2018, the Tribunal sent by attachment copies of the requested material and correspondence to the representative in relation to his request. That included the Tribunal case file 1817424 (this review file) and the DOHA file BCC2016/3203576 (electronic copy and unfolioed 18 pages).
On 7 December 2018, the representative sent to the Tribunal a copy of a report from the Principal of Bidwill Public School, Janine Macky, dated 29 November 2018 (signed 30.11.2018), stating that “Ulrik continues to improve his academic and social outcomes.”
On 30 January 2019, the Tribunal wrote to the applicant with an opportunity to obtain a further opinion from the MOC. On 31 January 2019, the representative returned to the Tribunal a signed request for a further RMOC opinion.
On 4 February 2019, the applicant provided a paid tax receipt from the agent’s IMMI account ($526.86) for a further RMOC opinion to be obtained by the Department. The applicant also requested that the RMOC be provided with :
·The agent’s submission letter of 19/11/2019
·The letter from the school principal of 29 November 2019;
·Psychological report from Gerard McShane of 22 November 2018;
·Report of Dr Somaiya dated 10 November 2018;
·Other medical records on file.
On 8 February 2019 the Tribunal wrote to the RMOC requesting a further medical opinion which enclosed “all relevant medical documentation currently before us in relation to this case”. [1]The Tribunal’s letter listed the attachments sent to the RMOC, which included:
[1] T case file f 175
i.the representative’s detailed letter with submissions and attachments dated 19 November 2018, and which drew the attention of the RMOC to the specific medical reports relied upon by the applicant, and attachments;
ii.further copies of the medical reports and information received from the representative on 4 February 2019;
iii.Dr Gupta’s report of 7 October 2014 and 25 May 2018;
iv.Dr Lampropoulos report dated 8 January 2015;
v.Ms Summerville’s occupational therapy report of 15 November 2016;
vi.Dr Garg’s report dated 16 October 2018;
vii.Statutory Declaration of Raquel Caberto (Ulrik’s mother) dated 13 November 2018, with annexures;
viii.medical report of Dr Somaiya dated 10 November 2018;
ix.psychological report of Gerard McShane dated 22 November 2018;
x.letter of School principal, Janine Macky, dated 29 November 2018;
The representative’s submissions made 19 November 2018 pre-date the further submissions made following the RMOC opinion on 14 February 2019. These November submissions in summary complain that the RMOC:
·relied upon old reports
·failed to identify material with which he disagreed or agreed
·failed to specifically consider the contending medical opinions with the evidence submitted by the applicant
·failed to identify the form and level of condition suffered by the applicant
·engaged in contradiction and misconceived the task required by the test in PIC 4005, where the applicant asserts relying upon Robinson’s case[2] that it was not sufficient for the RMOC to make an assessment “by reference to a hypothetical person with a generalised notion of the condition”;
·failure to undertake a proper and realistic enquiry to ascertain the form and level of condition;
·failure to provide costing;
·wrongly concludes the applicant’s condition would prejudice access by Australians to health care and community services, which the applicant submits are “readily available in Australia and not listed as short supply that will prejudice access”;
·has wrongly applied and misunderstood the proper construction of PIC 4005 in Robinson’s case;
·that it would be contrary to public policy for the RMOC “to make a general notion that sufferers of autism spectrum disorder will all fail the test”[3];
·failure to give sufficient weight to relevant evidence (being, in part, the annexes to the representative’s submissions);
[2] Robinson v Minister for Immigration and Indigenous Affairs [2005] FCA 1626
[3] T file f 129
A review of the Tribunal’s file shows that the request for the further RMOC was forwarded by the Department to the senior medical officer for review in the period from 8 February 2019 to 14 February 2019.[4]
[4] T file f 181
On 15 February 2019, the Tribunal was advised the Form 884 had been completed and the latest RMOC opinion was available, noting “Does Not Meet”.
On 18 February 2019, the Tribunal sent a letter to the applicant’s under section 359A. The letter attached a copy of the RMOC’s report dated 14 February 2019 and invited a response and/or comments to the information by 4 March 2019. The letter contained the sanction that “if we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act to appear before us to give evidence and present arguments.” (Emphasis appears in the Tribunal’s letter).
The applicant did not respond to that letter by 4 March 2019.
On 11 March 2019, the Tribunal sent an invitation to the applicant to appear at a hearing scheduled on 8 April 2019, and to which the applicant responded, first on 20 March 2019 and again on 22 March 2019, providing details of who would be in attendance for the hearing.
The applicant however, as noted, had not responded to the Tribunal’s earlier letter under section 359A by the due date, and had not sought an extension of time or provided any reasons in support of an extension of time to respond to that letter. Under section 360(3) of the Act, if the applicant does not provide the information or response by the time requested (in this case by 4 March 2019), the applicant is then not entitled to appear before the Tribunal.
On 28 March 2019 the Tribunal wrote to the applicant cancelling the proposed hearing on 8 April 2019. The Tribunal advised the applicant that the Tribunal would proceed to make a decision on the review based on the information presently available, being the RMOC’s most recent opinion of 14 February 2019.
On 29 March 2019, the applicant wrote to the Tribunal and requested additional time to respond to the RMOC’s opinion of 14 February 2019. In their letter, the applicants complained that the RMOC had not had regard to the statutory declaration of Ulrik’s mother, or her observations.
On 1 April 2019, the Tribunal agreed to provide additional time to the applicant and asked for a response to the RMOC opinion by 6 April 2019.
On 5 April 2019, the Tribunal received the applicant’s detailed submissions and responses to the RMOC opinion of 14 February 2019, and in respect of which the Tribunal has given consideration and makes comments as outlined below.
The RMOC Opinion
The RMOC opinion, dated 14 February 2019, sets out in full as follows:
“The applicant has been assessed against Public Interest Criterion (PIC) 4005 [see attached extract] for the period of a 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 10-year-old person with:
·Moderate autism spectrum disorder
Form and severity of the applicant’s condition: the applicant has moderately severe functional and learning impairment associated with autism spectrum disorder, such that supported education and allied therapy intervention been required to improve his functioning and optimise his potential. Provision of services to a hypothetical person in Australia with the same condition as the applicant and at the same severity, would be likely to require community services including but not limited to special education, carer support and state disability services. 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, be likely to require healthcare or community services during the period specified above.
The services would be likely to include:
Special education services
Commonwealth disability services
State disability services
Provision of these healthcare and/or community services would be likely to result in a significant cost to the Australian community in the areas of healthcare 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 panel position examination, activities of daily living assessment and chart of early childhood development of 28 November 2016; and reports from Dr V Gupta (9 May 2014, 7 October 2914 (sic), and 25 May 2018), Dr B Lampropoulos (8 January 2015), Occupational Therapist Ms R Summerville (15 November 2016), Dr S Garg (16 October 2018), Dr J Somaiya (10 November 2018), psychologist G McShane (22 November 2018), Bidwill Public School principle (sic) Ms J Macky (29 November 2018), plus several attached certificates of achievement
Medical Officer of the Commonwealth
Position Number: BUPA019”
Is a MOC opinion required?
On the evidence before the Tribunal, a MOC opinion is required. The Tribunal must take the MOC opinion as correct[5], but must first be satisfied the MOC has applied the correct test in forming the opinion: Robinson’s case and Ramlu v MIMIA [2005] FMCA 1735 (Ramlu’s case). 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.
[5] Reg 2.25A (3):” the Minister is to take the opinion of the medical officer of the Commonwealth on a matter referred to in subregulation (1) or (2) to be correct for the purposes of deciding whether a person meets a requirement or satisfies a criterion."
Consideration – Does the opinion of the RMOC meet Regulation 2.25A?
The Tribunal has considered the detailed submissions in the representative’s letter made 5 April 2019. The submissions argue that the Tribunal should disregard the RMOC opinion, and which in summary, complain that the RMOC report is invalid for the following reasons:
·the report has ignored the Statutory Declaration of Ulrik’s mother, Raquel Caberto, made 13 November 2018;
·has “ignored/or not considered” relevant materials, listed as:-
i.the mother’s statutory declaration
ii.reports of:
a)Dr Gupta
b)Dr Somaiya
c)Dr Garg
d)Gerard McShane, psychologist
e)Rachel Summerville, occupational therapist
f)the school principal of Bidwill Public School
·there is no recent evidence of “severe autism spectrum disorder”
·the finding is of “moderately severe functional and learning impairment” which finding is itself not justified on the available material;
·the RMOC disagrees with the applicant’s medical opinions, where the applicant’s opinions are “logically probative” and should therefore be accepted over the RMOC
·the RMOC has had regard to an “old” report, being the report of Dr Lampropoulos, which is now more than three years old and an “irrelevant consideration” [6]
·failing to undertake a proper and realistic enquiry
·failing to itemise “significant cost”, where the threshold is $40,000
·where there is no “prejudice” caused to Australians, such as might be relevant in the case of organ transplant or dialysis, but not for moderate autism spectrum disorder
·failing to have regard to the RMOC checklist, the predictable length of the condition diagnosed, and an estimate of the likely cost over the life expectancy of the condition
·failing to have regard to the Department’s guidelines as set out in the procedure advice manual (PAM).
[6] See pp 9-10 of submission letter dated 5 April 2019

The letter submitted that the issue for consideration by the Tribunal is:
“Whether the Tribunal will accept the latest opinion of the RMOC on 14/02/2019 as correct, in accordance with reg. 2.25A (3) of the Migration Regulation”.[7]
[7] Page 4 of submission dated 5 April 2019
The representative submits that:
“The latest opinion of RMOC was void as it did not consider the statutory declaration of Racquel Roberto; it is unreasonable and illogical as it failed to ascertain the level and form of condition of the child which would constitute a jurisdictional error if the Tribunal accepts the RM0C opinion as correct”.
Dealing with each submission in turn, the Tribunal has carefully considered the applicant’s submissions and notes as follows.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the visa applicant meets Public Interest Criterion (PIC) 4005 as required by the criteria for the grant of the visa.
Public Interest Criterion 4005, as it applies to this case, is extracted in the attachment to this decision. It requires the applicant, in certain circumstances, to undergo medical assessment, and to be free of certain diseases or conditions that may impact on the community. The applicant in this case was found by the delegate not to meet the criterion in Regulation 187.235 for reason that Ulrik (as a family member) was unable to meet PIC 4005.
As noted by the representative, the delegate is required to take the opinion of the Medical Officer of the Commonwealth to be correct for the purposes of deciding whether a person meets a requirement or satisfies the criterion.
Is the RMOC a valid opinion?
The first step for the Tribunal is to determine that the RMOC has provided an opinion, by a Medical Officer of the Commonwealth, and that the opinion has considered whether the person relevantly meets the provision in Schedule 4 to the regulations, in this instance PIC 4005(1)(c) (ii)(A).[8]
[8] See MIMA v Seligman (1999)85FCR115;
That opinion requires that the RMOC ascertain “the form or level of condition suffered by the applicant in question and then apply the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition.”[9] The Federal Court has held that it is not enough to apply statutory criteria to a hypothetical person “with a generalised notion of the condition”.[10] The criteria must be applied on the basis of the “form or level of the condition”. This approach was endorsed and followed in Ramlu[11].
[9] Robinson’s case at par 43.
[10] Ibid at par 36 – counsel’s submission, which was accepted.
[11] See par 16, per Driver FM
The issue in Ramlu was the failure of the RMOC to state “which of the various ailments she had previously identified was the disease to which the paragraph applied”.[12] Notably in this instance, the only diagnosis for the RMOC to consider is autism spectrum disorder, and the level or severity, and there is no competing diagnosis.
[12] Ibid at par 22
In Islam v MIBP [2015] FCCA 2210 (Islam), the court considered a challenge to the validity of a MOC opinion. After referring to (and endorsing the above authorities) the court found that it was within the power of the Minister to take the opinion of the MOC on a matter referred to in subregulation (1) or (2)[13] to be correct, for the purposes of deciding whether a person meets a requirement. Islam considered an issue that the opinion of the MOC “did not involve a proper, genuine or realistic consideration or enquiry into the matters referred to the MOC, so as not to constitute an opinion at all”.[14] In other words, the RMOC is required to give “proper, genuine or realistic consideration” to the diagnosis at hand. The issue in Islam, similarly was “whether the tribunal fell into jurisdictional error in treating the MOC’s June 2012 medical opinion as an opinion authorized by the Migration Regulations.”[15]
[13] See reg 2.25A(3)
[14] Islam at par [45]
[15] Ibid at par [15] (j) – Minster’s submissions
in Islam, the court found that where it was satisfied that:
·the MOC had formed an opinion,
·that the opinion was adverse to the applicant,
·that there had been an assessment against PIC 4005 which the applicant did not satisfy,
·and which was considered against a hypothetical person with the condition of the applicant at the same severity,
·that expressed a view that the provision of healthcare or community services would be the likely result at significant cost to the Australian community,
·and that the opinion had regard to medical reports provided,
then it is an opinion that meets the purposes of regulation 2.25A, which the Tribunal is then required to be taken to be correct pursuant to regulation 2.25A (3).[16] The court further opined that the Tribunal had not failed “to undertake a proper, genuine or realistic enquiry, either itself or on the basis that the… Medical Opinion was not a proper, genuine or realistic enquiry”[17] because the medical opinion was “undeniably brief, but in circumstances where the opinion expressed is not inconsistent with the information to which the MOC has had regard”, and in circumstances where “the opinion is explicable, and is based on the available evidence, (and) its brevity is perhaps therefore understandable”.[18]
[16] 2.25A(3) states the RMOC opinion is taken to be correct for the purposes of determining whether a person meets a requirement or satisfies a criterion;
[17] Islam at par [51].
[18] Ibid at par [50]
The RMOC opinion of 14 February 2019 refers to Ulrik having moderate autism spectrum disorder. The report opines that a hypothetical person in Australia with the same condition as Ulrik, at the same severity, would be likely to require community services including but not limited to special education, carer support and State disability services, and which condition is likely to be permanent.
On its face, the Tribunal finds it is satisfied that the RMOC opinion in this case meets the requirements of the regulation as set out above in Islam and is not invalid. It relies upon a diagnosis of a condition (not disputed), with a finding as to the level or severity of the condition (disputed), likely length and cost of services to the Australian community (disputed) and “permanency” during the period of stay for the visa. But is the report based upon a proper, genuine or realistic consideration of those factors, which the applicant contends it is not?
Findings
The relevant report is dated 14 February 2019. The Tribunal finds the report refers to all the medical evidence available to the applicant and produced for consideration of the applicant’s condition, and by reference to the regulation 2.25A. The Medical Officer has listed the material considered.
The Tribunal does not interpret the authorities to require that the RMOC specifically identify by reference to each medical report, where the RMOC agrees or disagrees with the applicant’s reports and the material considered. It is enough that he or she is a medical practitioner qualified to give a medical opinion, and that the Medical Officer has stated that the RMOC has “had regard “to those reports and the information provided.
The Tribunal finds and is satisfied that the RMOC has compared the applicant to a hypothetical person at the same severity as the applicant and has not simply approached the opinion based on a generic application.
The applicant submits firstly that in assessing the applicant child, the RMOC ignored and/or did not consider relevant materials. In particular, the submission says the Statutory Declaration of Racquel Roberto is a relevant document and was ignored, or failed to be taken account of in the RMOC consideration. It is true the opinion simply says the RMOC has had regard to the information, without particularising the Statutory Declaration or its contents. That is not to say however that it was “ignored”. The Medical Officer is not required to opine on every aspect of every report or piece of information provided. The Statutory Declaration refers to the mother’s observations on his progress at school and the fact she disagrees with the medical opinion of the RMOC. She then relies upon awards that he had received from his school principal for schoolwork, and the fact she regularly tutors him at home and observes his behaviour. She refers to the fact he gets himself up, cleans and dresses himself and partakes in other home activities including cooking and household duties. She says that although his behaviour “can be challenging at times” he has no speech difficulties and in her view has good prospects to have “an independent adult life with minimal assistance”.
There is no doubt that the child’s mother is entitled to those views and to draw her conclusions in that way and it would be surprising were it otherwise. The Tribunal however must take into account the medical opinions of the expert, whose opinion is to be preferred against that of a non-medical expert. There is no evidence to assert and nor is it said by the RMOC that this information was not relevant or not considered. The Tribunal therefore does not accept that the RMOC has ignored or not considered this information, merely because he has drawn different conclusions as to his assessment of the child and the diagnosis.
Similarly in relation to the medical opinions considered, there is no evidence that the RMOC has not paid attention to each of those medical reports identified in the applicant’s submissions. The representative says in his letter that the report “has misapplied or misinterpreted the Public Interest Criterion 4005 test when it ignored the new material and relied on old material.[19] The submission states that the RMOC ignored the report of Dr Gupta of 25 May 2018, the report of Dr Garg dated 16 October 2018, and the report of Dr Jasmine Somaiya dated 10 November 2018. The submission quotes extracts from those reports about the child’s behaviour with Dr Gupta, Dr Garg’s opinion that the child “may respond” to treatment, and the fact Dr Somaiya states that “despite having moderate autism, (Ulrik) is able to perform all his daily activities…” The criticism of the RMOC in the submission appears to be a failure to mention the specific contents of those reports. The Tribunal does not agree however that by failing to do so and to mention the contents specifically, that the RMOC has “ignored and/or not considered” those reports[20], and rejects that submission.
[19] Submission letter dated 5 April 2019 at p6
[20] Applicant’s submission at p 8 of 5/4/2019 letter
The same submission and complaint is made in respect of the opinions of the psychologist, Gerrard McShane and the occupational therapist, Rachel Summerville, and the report from the school principal, Janine Macky. The information in those reports refers to observations about a supportive family and school environment, the child’s individual motor skills and sensory processing, and his improvement in academic and social outcomes at school. There is no evidence at all to the effect those comments and statements were “ignored or not considered” by the RMOC. The submission goes on to complain that the Tribunal should be able to identify from the RMOC opinion “with certainty which medical reports or psychological report” was relied upon to arrive at the opinion. It then asserts that the opinion wrongly relies upon an old report of Dr Lampropoulos, at which stage 3 years earlier the diagnosis was more severe. There is however no evidence that the opinion has paid particular regard to that report over or above any of the other reports, and there is no weighting provided by the opinion to any of the reports in particular. It will undoubtedly be the case that different medical opinions will be obtained from different medical consultants who may not necessarily all agree on the severity or consequences of a particular diagnosis at any particular point in time. That however does not mean that a report has been ignored or not considered. It suffices for the purposes of this consideration that the Tribunal is satisfied that the RM0C has had regard to all the relevant medical information available, and it is not for the Tribunal to replace its opinion with that of the medical expert concerned. On the contrary, the Tribunal must accept the opinion of the RMOC, provided it meets the indicia as described in Islam and referred to above.
The Tribunal finds there is no evidence to demonstrate that the RMOC has failed to undertake a proper and realistic enquiry to ascertain the form and level of condition of the applicant.
The applicant says in his submission that the RMOC has made a “generalised opinion” such that any person with autism spectrum disorder will not pass the health criteria.[21] The representative’s submission states that the RMOC opinion required an assessment of the “nature and condition of a person having a mild autism spectrum disorder”[22].
[21] See submission letter dated 5 April 2019 at point 3 on p10
[22] Ibid at 3(a) on p 10
The RMOC opinion was in fact of “moderate autism spectrum disorder”, not “mild”, and concluded that “a hypothetical person with this disease or condition, at the same severity...” is likely to require health care and community services for the period of the applicant’s permanent stay in Australia. The Tribunal finds it is satisfied that the RMOC has come to a conclusion having had regard to the available information that a person assessed at the same level (“moderate autism”) [23]as the applicant will require health care and community services and at a cost to the Australian community.
[23] RMOC 14/02/2019 p1
The RMOC opinion states that there is likely to be a requirement for ongoing healthcare or community services during the period of a permanent stay in Australia by the applicant and that the provision of these services is likely to result in a significant cost to the Australian community in the areas of healthcare and/or community services. It is sufficient for the opinion for it to state that consideration has been given to the cost, and that the cost is likely to be “significant”. The cost estimate in any event is a relatively small threshold of $40,000, which the applicant says should be calculated over a five-year period, and in respect of a condition “that is permanent and the course of the disease is reasonably predictable beyond the five-year period”. [24]
[24] Submission letter at p 14
The applicant submits that the RMOC should have specified and or estimated costs over the applicant’s remaining life expectancy, including where the life expectancy is reduced.[25] In this instance, the Tribunal finds it is satisfied that the opinion includes an estimate of the cost to the community for a period of permanent residency (which is more than 5 years) and predictable, so as to equate to “a significant cost”.[26] The Tribunal is satisfied that the cost to the community as assessed by the RMOC covers the period for which the visa is sought, which is for permanent residency. It is not a requirement that the RMOC identify with precision or accuracy the total amount of those costs for the entire permanent residency period based upon an estimated reduced life expectancy.[27].According to PIC 4005, the cost is to be estimated for the period commencing when the application is made, and which is likely to continue for many years, in this instance “Permanent”.[28]
[25] Ibid at p14
[26] RMOC 14/02/2019
[27] Submission letter at p 14
[28] RMOC 14/02/2019
The Tribunal notes the applicant’s submission that “community services” includes the provision of a pension or benefit, and relies upon the opinion of the psychologist, Gerard McShane, who opines that Australians with “mild-moderate autistic spectrum disorder” are “not a financial burden” in terms of health care and community services[29]. The applicant submits that substantial “healthcare costs” in terms of the criterion should be limited in terms of “prejudice” to other Australians, by reference only to more severe medical treatments such as organ transplant or dialysis “that are in short supply”.[30] The Tribunal finds this argument for a limited reading of the criterion is not persuasive in this case and places a wrong emphasis on the terms of the public interest criterion, where the emphasis is on overall prejudice to the Australian community, not just in circumstances of “short supply” of particular medical or community services.
[29] Submissions letter at p15
[30] Ibid at p 12
The Tribunal in considering PIC 4005 notes it refers to an applicant who is free from a disease or condition which would be likely to require health care or community services during the period of the visa permanent stay, and which would be likely to result in a significant cost, or prejudice the access of an Australian citizen or permanent resident to health care or community services. The Tribunal does not accept the applicant’s submission that the RMOC has not had proper regard to the application of the criterion in PIC 4005. The RMOC’s opinion is that the applicant’s condition requires health care or community services during the period of permanent residency as a “significant cost”[31] to the Australian community.
[31] RMOC 14/02/2019
The Tribunal finds it is satisfied that the RMOC medical opinion in this instance has correctly applied the test referred to above in Robinson’s case for the application of PIC 4005. Further, the Tribunal finds that there is no issue of public policy in this case created by a possible conclusion that all sufferers of autism spectrum disorder will “all fail the test”.[32] The proper application of the test will require each case to be determined upon the medical evidence available for that particular applicant and by way of comparison to a hypothetical person with the same or similar severity of condition. In this Tribunal’s view, that does not lead to an outcome that all sufferers of the same condition will “all fail the test”, and therefore be “against public policy”, and the Tribunal rejects that submission.
[32] Submissions letter at p 12
Finally, the Tribunal finds it is not satisfied that the RMOC opinion has failed to give sufficient weight to any of the relevant evidence, including to the representative’s submissions. The Tribunal finds it is satisfied that there is a valid RMOC opinion from a Medical Officer of the Commonwealth which meets the requirements of the regulation 2.25A (3) and that the Tribunal is required to take the opinion as correct.
Is the applicant free from the relevant diseases or conditions (PIC 4005)?
Public interest criterion 4005 requires that the applicant is 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 also requires the applicant be free from a disease or condition which would be likely to require health care or community services or which would meet the medical criteria for provision of a community service during the specified period; and provision of the health care or community services (regardless of whether it will actually be used in connection with the applicant) would be likely to: result in a significant cost to the Australian community in the areas of health care and community services; or prejudice access of an Australian citizen or permanent resident to health care or community services. For 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).

The Tribunal finds it is satisfied that it has obtained an opinion from a Medical Officer of the Commonwealth, the most recent being 14 February 2019. The Tribunal finds it is satisfied for the above reasons that the opinion is a valid opinion and must be taken by the Tribunal to be correct.
Accordingly, based on the opinion of the RMOC, the applicant does not satisfy public interest criterion 4005(1) (c).
As the applicant has not satisfied the requirements of PIC 4005, the Tribunal must affirm the decision under review.
Is this an appropriate case to refer to the Minster?
The Tribunal notes that the Department decision must be affirmed.
The Tribunal however has also paid careful regard to the applicant’s concerns and submissions from the representative, and the expert opinions provided. Having regard to the applicant’s personal circumstances, the Tribunal considers this to be an appropriate case where the Minister might consider a waiver, replacing the decision made by the Tribunal with one more favourable to the applicant.[33]
[33] See s. 351 of the Act
The Tribunal notes the evidence of the applicant that they are a family, well-established in Australia, having first arrived here in 2008. The husband, Darwin Roy Ochoa, works in a restaurant in Victoria and has done for several years. In that regard he has made a significant contribution to the Australian community. Ms Roberto herself works in a pathology centre and the family is financially independent, with the support from relatives including a sister, uncles and aunts who all live in Australia. Ms Caberto supervises and cares for Ulrik, helps him with home schooling and acquiring personal skills, which will enable him to live a more normal life, although still challenged. He attends swimming classes, plays guitar and sings. He is part of a supportive and loving family. These are all attributes which augur well for a successful and independent lifestyle in the future, where he will be supported by his family, and has prospects of acquiring independence both physical and financial.
The condition suffered by the child Ulrik has been improving over time, is now moderate and there is a reasonable expectation that following an early diagnosis, his assimilation and improvement will continue[34]. The medical reports provided are optimistic and which optimism appears to be well-founded. In any case, the parents who are applicants have made a substantial contribution to Australia and with their family will continue to do so and will support the child both financially and physically as he progresses, placing a lesser burden on the Australian community.
[34] See submissions letter at p.9 referring to opinion of clinical psychologist Gerard McShane, who expresses the view there may well be “significant improvement in outcomes” owing to early intervention with supportive family and school environments.
The Tribunal is of the view that having regard to this evidence, the applicant’s circumstances are capable of meeting the Minister’s criteria that there would be exceptional and other benefits to Australia from allowing the applicant to remain here, as well as very strong compassionate circumstances as per the Minister’s guidelines, arising from the relationship with the applicant’s Australian family and the preservation of their Australian family unit.
As a result, the Tribunal considers it appropriate to request that this case be brought to the attention of the Minister in order for him to consider whether it is appropriate to exercise discretionary intervention powers under section 351 of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) visas.
Alan McMurran
Member

ATTACHMENT
Migration Regulations 1994
Schedule 4
4005(1) The applicant:
(aa)if the applicant is in a class of persons specified by the Minister in an instrument in writing for this paragraph:
(i)must undertake any medical assessment specified in the instrument; and
(ii)must be assessed by the person specified in the instrument;
unless a Medical Officer of the Commonwealth decides otherwise; and
(ab)must comply with any request by a Medical Officer of the Commonwealth to undertake a medical assessment; and
(a)is free from tuberculosis; and
(b)is free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community; and
(c)is free from a disease or condition in relation to which:
(i)a person who has it would be likely to:
(A)require health care or community services; or
(B)meet the medical criteria for the provision of a community service;
during the period described in subclause (2); and
(ii)the provision of the health care or community services would be likely to:
(A)result in a significant cost to the Australian community in the areas of health care and community services; or
(B)prejudice the access of an Australian citizen or permanent resident to health care or community services;
regardless of whether the health care or community services will actually be used in connection with the applicant; and
(d)if the applicant is a person from whom a Medical Officer of the Commonwealth has requested a signed undertaking to present himself or herself to a health authority in the State or Territory of intended residence in Australia for a follow-up medical assessment — has provided the undertaking.
(2)For subparagraph (1) (c) (i), the period is:
(a)for an application for a permanent visa — the period commencing when the application is made; or
(b)for an application for a temporary visa:
(i)the period for which the Minister intends to grant the visa; or
(ii)if the visa is of a subclass specified by the Minister in an instrument in writing for this subparagraph — the period commencing when the application is made.
(3)If:
(a)the applicant applies for a temporary visa; and
(b)the subclass being applied for is not specified by the Minister in an instrument in writing made for subparagraph (2) (b) (ii);
the reference in sub-subparagraph (1) (c) (ii) (A) to health care and community services does not include the health care and community services specified by the Minister in an instrument in writing made for this subclause.