Rai (Migration) - [2024] AATA 2445

Rai (Migration) [2024] AATA 2445 (30 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Yojana Rai
Mr Khim Bahadur Somai
Master Kaayan Somai
REPRESENTATIVE:  Mr Nishant Sharma (MARN: 1568498)
CASE NUMBER:  2211155
HOME AFFAIRS REFERENCE(S):          BCC2021/1435736
MEMBER:Deputy President J.L Redfern PSM
DATE:30 June 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Skilled Work Regional (Provisional) (Class PS) visas.
Statement made on 30 June 2024 at 5.40pm

CATCHWORDS
MIGRATION – Skilled Work Regional (Provisional) (Class PS) visa – Subclass 491 (Skilled Work Regional (Provisional)) – Registered Nurse – health criteria – Angelman Syndrome – ‘significant cost’ to the Australian community – government policy – Procedural Instruction for the Health Requirement – Disability Guidance Note – validity of the RMOC opinion – period for assessment of the significant costs – Guidelines (Ministerial intervention principles) – compassionate circumstances – exceptional economic or other benefit – shortage of health care workers – Ministerial Intervention requested – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 351, 358, 363
Migration Regulations 1994 (Cth), r 2.25A; Schedule 2, cl 491.211; Schedule 4, PIC 4005
CASES
2212059 (Migration) [2024] AATA 615
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
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
Robinson v MIMIA (2005) 148 FCR 182
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 15 July 2022 to refuse to grant the applicants Skilled Work Regional (Provisional) (Class PS) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 19 July 2021. The first named applicant, Ms Yojana Rai, is the primary applicant for the visa for the nominated occupation of registered nurse. The delegate refused to grant the visa on the basis that the third named applicant (now referred to as Kaayan) did not satisfy cl 491.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4005 of Schedule 4 to the Regulations was not met.
The refusal was based on a report received by the Department dated 18 March 2022 from the Medical Officer of the Commonwealth (referred to in this decision as the MOC) concluding that Kaayan, who has Angelman Syndrome (a chromosome abnormality), did not meet the health criteria. Kaayan was born in May 2019 and at the time of the assessment, he was nearly three years old. For an applicant to satisfy cl cl 491.211, each member of the family unit must satisfy the health requirement in para 4005. Given that Kaayan is a member of Ms Rai’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 9 October 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 Kaayan 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 $1,017,610.
On reviewing the RMOC opinion, I formed a preliminary view that the opinion was not valid because it included costs that should have been excluded under the relevant instrument. This was raised with the applicants by letter dated 27 November 2023. I also invited submissions from the Secretary of the Department pursuant to s 358(2) of the Act in relation to this issue by letter dated 28 November 2023.
Ms Yojana Rai, the first named applicant and primary applicant for the visa, appeared before the Tribunal on 5 December 2023 to give evidence and present arguments. The second and third named applicants did not appear. Ms Rai gave oral evidence and her legal representative made oral submissions. The validity of the RMOC opinion was discussed and it was foreshadowed that it was likely the Tribunal would obtain a further RMOC opinion after receiving submissions from the Secretary. The applicants’ legal representative requested that this be deferred pending a medical review to be undertaken by a neurologist in March 2024. I agreed with this request, given that any updated medical assessment of Kaayan’s medical condition would be relevant to the question of whether he met the health requirement.
Further evidence and submissions were provided to the Tribunal by the applicants and by letter dated 13 December 2023, the Department responded to the Tribunal’s invitation agreeing that the RMOC opinion of 9 October 2023 was invalid. This letter was referred to the applicants’ legal representative, who also provided a written submission. It was also submitted that if the applicants still did not meet the health requirements as a result of any revised medical opinion, that the matter be referred to the Minister for intervention.
A report dated 12 March 2024 was provided from John Hunter Children’s Hospital. This report, together with detailed instructions, was sent to the RMOC for further opinion. The opinion received on 12 April 2024 was in similar terms as the previous opinion and included expenses that should not have been included as part of the costs assessment. Unfortunately, RMOC did not follow the Tribunal instruction. A further issue was raised in respect of the period of the assessment and by letter dated 17 April 2024 the Registry wrote to the Department seeking further submissions pursuant to s 358 (2) of the Act in relation to the period of assessment. The Department was also directed, pursuant to s 363(1)(d) of the Act, to obtain further a opinion from the RMOC in compliance with the Act, the Regulations and the relevant instruments. This request was also made in relation to an unrelated matter that raised the same legal issues.
A revised RMOC opinion was provided on 6 June 2024, reducing the estimate of costs to $196,671. This was sent to the applicants, and they were invited to comment on or respond to this adverse information under s 359A of the Act. Detailed submissions were provided to support an application for Ministerial intervention.
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 Work Regional (Provisional) Subclass 491 visa on 19 July 2021. The occupation nominated was Registered Nurse, for which the applicant received a favourable skills assessment from Australian Nursing & Midwifery Accreditation Council in February 2021. She has a Master’s degree conferred by the University of Wollongong, specialising in nursing. She attended the University from July 2017 to December 2019. Her son was born in Australia.
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 491.211 of Schedule 2 to the Regulations sets out the requirements for a Skilled Work Regional (Provisional) Subclass 491 that must be satisfied at the time of decision. Clause 491.211 (3) relevantly provides that each member of the family unit of the applicant who is an applicant for a Subclass 491 visa must also satisfy PIC 4005.
The issue in this review is whether Kaayan, who is a member of the primary 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.
Clause 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. Clause 4005(1)(ab) requires that the applicant comply with any request by a MOC to undertake a medical assessment.
Clauses 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.
Clause 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, clause 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;..
Clause 4005(2) provides that the relevant period for assessing whether a person is free from a disease or condition for the purposes of clause (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.
Clause 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.
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. His Honour observes that it is not relevant to the application of the public interest criterion whether 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, is 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 AND EVIDENCE
In the decision record refusing the visa application, the delegate noted that the Department had received an opinion from the MOC to the effect that Kaayan did not meet the health requirements. The reasons for the opinion are outlined in the decision record. It is noted that the applicant is a two-year-old with severe cerebral palsy who had severe functional and cognitive impairment due to a chromosomal abnormality. It recorded that the MOC had regard to information available in relation to Kaayan, which included reports provided by his paediatrician, Dr Harsha Gowder, dated 23 February 2022 and a report by a Cerebral Palsy Alliance therapist dated 31 January 2022. This opinion assessed that the provision of healthcare and/or community costs would be likely to result in a ‘significant cost’ to the Australian community in the areas of healthcare and social community services.
The applicants applied for review of this decision and the Tribunal requested an updated medical opinion. This opinion was provided on 9 October 2023. The RMOC concluded that the applicant did not meet the health requirement and the estimated costs were assessed as $1,017,610 comprising: $319,850 for special education services for a period of five years, $237,760 for Commonwealth disability services (carers payments) for a period of eight years and further $460,000 disability services over a 10-year period, from 2 to 11 years old.
As outlined earlier, I formed the view that this medical opinion was invalid and requested submissions and a further opinion from the RMOC.
After the hearing, the applicants’ legal representative provided submissions and evidence, summarised as follows:
·A letter from the first named applicant dated 8 December 2023 stating that her son was diagnosed with Angelman syndrome when he was about 18 months. Despite his condition, she and her husband had seen him improve. He was happy, liked social activities with others and his condition had significantly improved. She and her husband, the second named applicant, claim costs from their private health fund insurance, BUPA, and see a neurologist every six months. Their son is on regular medication. He has been stable when he is taking his medication and his seizes were under control. His health care costs have never been as high as those estimated by the medical officer. He goes to preschool two days a week, and this is free. She works as a registered nurse and her husband works in cleaning services. Both are employed and paid taxes.
·In support of this statement, the applicants provided details of their healthcare cover and the monies that they had paid for the healthcare of their son.
·A short medical report was provided by their general practitioner, Dr Abiy Mebrate, dated 30 November 2023. According to the report, Kaayan is a ‘remarkable child’ who has been diagnosed with Angelman syndrome. He has made significant strides in his health and development, which is ‘a testament to his family’s unwavering commitment and care’. The cost estimate appears to be significantly higher than the actual costs incurred and, in Dr Mebrate’s view, the actual expenses ‘were only a fraction’ of the estimated costs. It is noted that the continued well-being of Kaayan hinges on his ability to reside in a stable environment, where he receives consistent medical care and the nurturing support of his family.
·The director of the Windale Preschool provided a short letter dated 30 November 2023. She noted that Kaayan had attended the school two days a week since January 2023. He had made significant progress in his development, and he is now able to separate from his family more easily, he seeks out and engages with peers, he explores more areas in play, seeks out educators to engage with them, pulls himself up to stand and walks supported by holding an educator’s hand and is eating more while sitting in his supportive chair.

The applicants provided a report from the John Hunter Children’s Hospital dated 12 March 2024. This report was also referred to RMOC. The joint authors of the report are Dr Gopinath Musuwadi Subramanian, Paediatric Neurologist, and Sarah Smith, Senior Social Worker. According to the authors of the report, they are writing to advocate for the well-being and medical stability of Kaayan, who has Angelman syndrome and associated medical diagnoses. It is noted that he was born in Australia and that his parents care and provide for him and cover most of his expenses with privately funded therapies. Kaayan has a medical diagnosis of Angelman syndrome which is a chromosomal abnormality consistent with a pattern of development delay and seizures. It is ongoing but in the opinion of the authors, it ‘does not involve a huge health service burden’. Supportive care is required along with good seizure control. It is reported to be important for Kaayan’s development and well-being that he continues to reside in an environment that offers him the best access to his prescribed medication reliably and the care of his loving parents. Notably, it is recorded that Kaayan’s health needs remain stable with the reliability of access to medication and private therapies.
Kaayan has epilepsy which is characterised by brief tonic seizures and is well-controlled on prescribed medication. He has only required infrequent visits to the emergency department and only two visits in 2023 for brief seizures. His family attend all the required medical appointments, which are on average to outpatient appointments per year. The authors note that Kaayan’s parents have informed them they do not intend to access NDIS for him and are happy to continue to pay privately for any therapy support. The authors ask that these matters be considered when making a decision regarding Kaayan’s immigration status.
The revised RMOC was provided on 4 June 2024. The new report assesses the services that would be likely to be needed would include special educational services. The rest of the costs and services estimated in the previous reports were excluded. The estimated costs were $196,671, which comprised special education services of $65,557 for three years for when Kaayan was age 7 to 9 years old. These costs were based on annual cost estimates for state funded special education funding for children in the 7-to-14-year age bracket set out in the Disability Guidance Note. It is noted that Kaayan is now five years old. In making the assessment, the RMOC took into account the period of a five year stay, as required under the relevant instrument, and made the assessment from the age of five years old, which was Kaayan’s age at the time the RMOC assessment was prepared. The RMOC refers to the information provided in making the assessment of costs and included specific reference to the report from the John Hunter Children’s Hospital referred to above. It is apparent from the commentary contained in the report and the estimates made, that the RMOC applied the correct instrument, by reducing the assessment for a period to a period of five years and excluding certain costs and taking into account some of the other matters outlined in the letters from the first named applicant, their general practitioner and the John Hunter Children’s Hospital.
This report was provided to the applicants. They did not challenge the validity of this report but rather made a request 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 Ms Rai 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 Ms Rai did not meet cl 491.211(3) because her son (Kaayan) did not satisfy para 4005(1)(c) as he had Angelman syndrome 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 18 March 2022. The subsequent RMOC opinion also found that Kaayan does not meet PIC 4005.
As such, the determinative issue in this case is whether Kaayan meets the requirements of para 4005(1)(c).
To decide this issue, the Tribunal must consider two questions.
The first question is whether Kaayan 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 Kaayan has Angelman syndrome and that he has required, and will require, health care and community services commencing from the time of the application.
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 determinative issue in this case and 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 19 July 2021 and the period against which the health requirement must be assessed is from this date. At the time the application was lodged, Kaayan 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 or guidelines. However, policy or guidelines 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 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 nominated threshold in the Procedural Instruction for the Health Requirement for costs considered to be ‘significant’ is $51,000.
The question for consideration is whether the updated RMOC provided on 4 June 2024 is valid. I have already formed the view, consistent with the submissions made on the Secretary’s behalf, that the previous medical opinions are invalid.
As noted in one of my previous decisions, 2212059 (Migration) [2024] AATA 615, the validity of opinions provided by a Medical Officer of the Commonwealth has been judicially considered on numerous occasions by the Federal Court of Australia. I will not repeat the principles summarised in that decision, other than to note that it is uncontroversial that the delegate, and thereby the Tribunal, is only entitled and obliged to take the opinion of a Medical Officer as correct if it is an opinion of a kind authorised by the Regulations. This turns on the question of whether the Medical Officer has applied the proper test by which to assess the matters referred to in PIC 4005. The Medical Officer must apply the statutory criteria by reference to a hypothetical person who suffers from that form or level of condition. The assessment must be made at the time of the decision, having regard to the prescribed period for the assessment.[5]
[5] Refer Robinson v MIMIA (2005) 148 FCR 182; Minister for Immigration and Multicultural Affairs v Seligman (1999) 85 FCR 115; Applicant Y v Minister for Immigration And Citizenship [2008] FCA 367 Han v Minister for Home Affairs [2019] FCA 331 and Dang v Administrative Appeals Tribunal [2019] FCA 220.
At the time the applicants applied for the subclass 491 visa, the relevant instrument under cl 4005(3) of Schedule 4 to the Regulations was IMMI 11/073 (Specification of healthcare and community services). The relevant instrument for the purposes cl 4005(2)(b)(ii) of the Regulations was IMMI 16/067 (Visa subclasses for the purposes of the health requirement). IMMI 16/067 did not specify subclass 491 visa for the purposes of cl 4005(2)(b)(ii) of the Regulations, with the effect that IMMI 11/073 continued to apply for subclass 491 visas. By the time of the decision before the delegate and the decision before the Tribunal, IMMI 11/073 and IMMI 16/067 were repealed and they were replaced by LIN 22/007. LIN 22/007 is less favourable. Relevantly, if LIN 22/007 applied, the applicants would be disadvantaged in the assessment of costs, firstly, because they would not get the benefit of IMMI 11/073, which excluded certain cost from being included in the assessment, and, secondly, because the assessment period would be open-ended.
Clause 4005(3) provides that the reference in cl 4005(1)(c)(ii)(A) to ‘healthcare and community services’ does not include the health care and community services specified by the Minister in an instrument in writing made for the subclause. In this case, IMMI 11/073, which was made for the purposes of sub clause (3), specifically excludes social security payments. These payments would include carer and other Commonwealth disability services payments, which comprised the majority of the costs referred to in the 2023 RMOC. If IMMI 11/073 continued to apply, the applicants would have the benefit of these payments being excluded from the assessment of costs for healthcare and community services.
I formed the preliminary view that these costs should not be included, that the 2023 RMOC opinion was invalid and, as already noted, invited the Department to make submissions about this matter. By letter dated 13 December 2023, the Department advised as follows:
The Department is of the view that IMMI 11/073 and IMMI 16/067 continue to apply in this case. The applicants have an accrued right to have their application determined accordingly, relevantly, to the time of the decision criteria for the visa that were in force at the time they made the application. This right was not affected by the repeal of either IMMI 11/073 or IMMI 16/067, and LIN 22/007 does not purport to apply retrospectively.
The Department stated that, in its view, the opinion of the Review MOC is invalid as it takes into account healthcare and community services which ought to be excluded from the assessment by IMMI 11/073. As such, it was noted that the Tribunal cannot rely on the Review MOC opinion in its decision.
A further issue that arose relates to the period for assessment of the significant costs. The Tribunal again wrote to the Department inviting submissions about this matter, having formed the preliminary view that the relevant period was five years rather than assessing the costs like a permanent visa.
By letter dated 30 May 2024, the Department responded to the invitation and advised that it considered that the relevant period in this matter, and in an unrelated matter raising similar issues, is five years from the grant of the primary visa holder’s visa. The reasoning, outlined in the letter, is as follows:
·Clause 4005(2) of Schedule 4 of the regulations specifies the period against which cl 4005(1)(c)(i) is to be considered. It distinguishes between three categories of visa, namely, permanent visas, temporary visas and temporary visas of a subclass specified by the Minister in an instrument in writing for the purposes of subparagraph 4005 (2)(b)(ii).
·For permanent visas and temporary visas of a subclass specified by the Minister in an instrument, cl 4005(1)(c)(i) is to be assessed by an open ended, commencing on the date the visa applicant applied for the visa.
·For other temporary visas, the relevant period is to be assessed by reference to the period for which the Minister to intends to grant the visa.
·A subclass 491 visa is a temporary visa, not a permanent visa, nor is it a visa that in a subclass specified by the Minister in instrument for the purposes of 4005 (2)(b)(ii) at the time the visa application was made.
·This is because IMMI 16/067, which commenced on 1 July 2016, continued to apply until the time of the application. As such, the accrued right to have the subclass 491 visa assessed by reference to IMMI 16/067 applied to the applicants.
·Pursuant to cl 491.512 of Schedule 2 to the Regulations, a subclass 491 visa is granted to a secondary visa applicant for a period of five years from the date of the grant of the primary visa holder’s visa. As such, the relevant period of assessment is five years, not open ended based on a permanent stay, as assessed by the Review MOC.
The opinion and reasoning in this letter, as summarised above, is in accordance with my view and is consistent with contentions raised in the Tribunal’s invitation to provide submissions.
Having regard to this opinion, the Department instructed the that the RMOC to undertake a further view and provide an opinion excluding the carer and disability payments and reducing the period of the assessment to 5 years. The result of this review was a reduction in the cost assessment as outlined above. This assessment is nonetheless more than the amount nominated in the Procedural Instruction for the Health Requirement and as such, would still be assessed as a ‘significant cost’ for the purposes of PIC 4005.
The opinion appears to take into account the relevant updated material and makes an assessment of costs by reference to the Procedural Instruction for the Health Requirement 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.
Findings
I find that the first RMOC opinion is not valid, but the revised RMOC dated 4 June 2024 is valid. This RMOC, which I must take to be correct, is to the effect that Kaayan does not meet para 4005(1)(c) because the costs for the provision of the healthcare or community services for Kaayan are estimated to be $196,671 over the relevant period and these costs are assessed as being ‘significant’. Accordingly, I find that the third named applicant, and therefore all applicants, do not meet the health criteria set out in PIC 4005. As Ms Rai does not satisfy cl 491.211(3) for the grant of the visa, it follows that she cannot meet the primary criteria for the grant of the subclass 491 visa.
The second and third named applicants, are secondary applicants. They are members of Ms Yojana Rai’s family unit. They must satisfy the secondary criteria, relevantly in this case, cl 491.311. Clause 491.311 provides that the applicant must be a member of the family unit of a person who holds a subclass 491 visa granted on the basis of satisfying the primary criteria for the grant of the visa. Because Ms Yojana Rai cannot satisfy the primary criteria for the grant of the visa, Mr Khim Bahadur Somai and Master Kaayan Somai 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. However, this 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 and the legal representatives detailed submissions dated 18 June 2024 addressing these issues. 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 by Mr Sharma. However, I accept that there are compassionate circumstances in relation to Kaayan 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 disorientation and, most importantly, the ongoing treatment for his Angelman syndrome, and in particular, his associated symptoms of seizures, is likely to be compromised. I accept that he may be disadvantaged in the health care and early intervention available to him in Nepal. In this regard, I note the reports from Dr Abiy Mebrate and Dr Gopinath Musuwadi Subramanian and Sarah Smith.
A significant factor in this case is that Ms Yojana Rai has been working in a critical sector in Australia as a registered nurse since 2019. She has a Master’s degree specialising in nursing. Nursing has been identified as a profession in respect of which there is a shortage. She works in rural and regional communities. Mrs Rai is currently employed full-time at Uniting Koombahla as a registered nurse. She contributes to the assessment, planning, implementation and evaluation of nursing care provided to residents and conducts case conferences with residents and families to update care plans.
According to submissions provided by the applicants’ legal representative, 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.[6] 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 Ms Yojana Rai and her family being permitted to remain in Australia.
[6] Committee for Economic Development of Australia (CEDA), Australia's Future Migration System, December 2022.
While this was not specifically submitted, I note there is an argument there would be unintended consequences in applying PIC 4005 in in circumstances of this case because the RMOC opinion, which are necessarily based on estimated costs for a hypothetical person with the same condition as Kaayan, is likely to be an overestimation of costs that may be incurred for special education services. I accept that Kaayan’s condition has improved. The assessment that has been made is based on a person with the same condition as Kaayan who may, or may not, need the special education services estimated. If these costs are not in fact incurred to this extent, it is possible that Kaayan may still exceed the estimate of significant cost but by a more modest amount. 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. Kaayan was born in Australia and, while he has a significant disability, there is evidence that he has had effective early intervention and his parents are very engaged in his care. It is also relevant to note that Ms Yojana Rai has an expertise in providing care services and will be in the position to provide ongoing care and support for Kaayan.
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.