Rai (Migration) - [2023] AATA 4391

Rai (Migration) [2023] AATA 4391 (20 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Dr Bhim Bahadur Rai
Mrs Deepa Rai
Master Yodeep Yongpang Rai
Master Yogit Yongpang Rai
REPRESENTATIVE:  Mr Munashe Rusamo
CASE NUMBER:  2206204
HOME AFFAIRS REFERENCE(S):          BCC2021/1412415
MEMBER:Naomi Schmitz
DATE:20 December 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 858 visa:
·PIC 4007(1)(c) for the purposes of cl 858.221 of Schedule 2 to the Regulations.

Statement made on 20 December 2023 at 12:05pm
CATCHWORDS
MIGRATION – Distinguished Talent (Residence) (Class BX) visa – Subclass 858 (Distinguished Talent) – health criteria – disease or condition likely to require health care or community services at significant cost to Australian community – chronic renal disease – recent transplant, stable function and good prognosis – updated opinion of medical officer of commonwealth taken as correct – decision made without hearing necessary – members of family unit – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.25A(3), Schedule 2, cl 858.221, Schedule 4, criterion 4007(1)(c)
CASES
Ramlu v MIMIA [2005] FMCA 1735
Robinson v MIMIA (2005) 148 FCR 182
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 April 2022 to refuse to grant the applicants Distinguished Talent (Residence) (Class BX) (Subclass 858) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants are citizens of Bhutan currently residing in the Australian Capital Territory. The applicants applied for the visas on 14 July 2021. The first named applicant is a qualified ophthalmologist and retinal surgeon. It is on this basis he applied for the Distinguished Talent (Subclass 858) visa.
The delegate refused to grant the first named applicant the visa as he did not satisfy cl 858.221 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because he did not meet the health criteria in Public Interest Criterion (PIC) 4007 of Schedule 4 to the Regulations.
No hearing was held in this case as the Tribunal was able to make a favourable decision on the information before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Relevant law
The issue in this review is whether the visa applicant meets PIC 4007 as required by the criteria for the grant of the visa. PIC 4007, 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. This last requirement may be waived in certain circumstances.
Clauses 4007(1)(a) and (b) require the applicant to be free from tuberculosis and free from a disease or…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rai (Migration)

Details

AGLC: Rai (Migration) [2023] AATA 4391
Case: [2023] AATA 4391
Decision Date: 20 December 2023

CaseChat Overview and Summary

This matter concerned an application for review by the first applicant, and by extension, the second, third, and fourth applicants as members of his family unit, for a Distinguished Talent (Residence) (Class BX) visa, Subclass 858. The primary dispute revolved around whether the first applicant met the health criteria stipulated in Public Interest Criterion (PIC) 4007(1)(c) of the Migration Regulations 1994. The Administrative Appeals Tribunal (AAT) was required to determine if the first applicant was free from a disease or condition that would likely require significant health care or community services, resulting in substantial cost to the Australian community or prejudice to the access of Australian citizens or permanent residents to such services.

The Tribunal was tasked with considering the opinion of a Medical Officer of the Commonwealth (MOC), which, under regulation 2.25A(3), must be taken as correct when an opinion is required. The initial MOC assessment had concluded that the first applicant, suffering from severe chronic renal disease, would likely require long-term specialist health care, including a kidney transplant, at an estimated cost of $337,198, and that this would prejudice access to such services due to their scarcity. However, subsequent medical evidence indicated that the first applicant had undergone a successful kidney transplant in Australia, with stable renal function and a good prognosis, and no longer required haemodialysis. The Tribunal also obtained a further MOC opinion after the applicant requested it.

The Tribunal reasoned that the new medical evidence, particularly the successful transplant and the applicant's stable condition and good prognosis, fundamentally altered the assessment of his future healthcare needs. While acknowledging the initial MOC opinion and the significant costs associated with kidney transplants, the Tribunal found that the applicant now met PIC 4007(1)(c) based on the updated information. Consequently, the Tribunal remitted the applications for the second, third, and fourth applicants for reconsideration by the Minister, directing that the first applicant met the relevant health criterion.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

In determining whether a person meets PIC 4007(1)(a), (b) or (c), reg 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: reg 2.25A(3).Background As noted in the delegate’s decision record, on 29 October 2021, the first named applicant was assessed by a MOC. The visa refusal was based on an opinion of the MOC that the first named applicant did not meet the relevant health criterion PIC 4007(1)(c) of the Regulations due to severe chronic renal (kidney) disease. The MOC applied the statutory criteria of the hypothetical person with the same condition of the same level of severity of the first named applicant and concluded that the hypothetical person would be likely to require long term specialist health care services, including but not limited to kidney transplant services. The MOC concluded that the provision of the health care services would likely result in significant prejudice to access to the Australian community, due to dialysis and kidney transplant being in short supply. The MOC concluded that the provision of the services would be likely to result in a total estimated cost to the Australian community of $337,198. On 18 February 2022, the first named applicant submitted information to the Department seeking a health waiver. The delegate did not support a waiver due to there being no information before the delegate that the first named applicant’s spouse was a compatible kidney donor. Overall, the delegate was of the view that the grant of the visa would result in undue prejudice to the access of health care or community services to an Australian citizen or permanent resident. Application for review On 27 April 2022, the first named applicant applied to the Tribunal for a review of the refusal decision. The applicant provided a copy of the delegate’s decision record to the Tribunal. The applicants were represented in relation to the review. The Tribunal Member noted incoming medical evidence which indicated that the first named applicant had undertaken a kidney transplant in Australia on 28 July 2023. The donor was the first named applicant’s wife. The report stated that the first named applicant was ‘doing quite well since transplant. His renal function is quite stable and he does not require haemodialysis’. The report also concluded that his ‘overall prognosis is quite good’[1][1] Report from Dr Zain Qadri dated 18 September 2023. A further MOC was obtained by the Tribunal after asking the first named applicant if he wished for a further MOC opinion to be obtained. The first named applicant said that he did.[2][2] Tribunal letter dated 17 November 2023 and response from first named applicant dated 2 December 2023.

Evidence

Evidence Before The Court

No hearing was held in this case as the Tribunal was able to make a favourable decision on the information before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. CONSIDERATION OF CLAIMS AND EVIDENCERelevant law The issue in this review is whether the visa applicant meets PIC 4007 as required by the criteria for the grant of the visa. PIC 4007, 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. This last requirement may be waived in certain circumstances. Clauses 4007(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 4007(1)(c) 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 services are excluded from this consideration: PIC 4007(1B). The requirement may also be waived in certain circumstances. As the applicant in this case has applied for a permanent visa, the exemption provision in PIC 4007(1B) does not apply. In determining whether a person meets PIC 4007(1)(a), (b) or (c), reg 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: reg 2.25A(3).Background As noted in the delegate’s decision record, on 29 October 2021, the first named applicant was assessed by a MOC. The visa refusal was based on an opinion of the MOC that the first named applicant did not meet the relevant health criterion PIC 4007(1)(c) of the Regulations due to severe chronic renal (kidney) disease. The MOC applied the statutory criteria of the hypothetical person with the same condition of the same level of severity of the first named applicant and concluded that the hypothetical person would be likely to require long term specialist health care services, including but not limited to kidney transplant services. The MOC concluded that the provision of the health care services would likely result in significant prejudice to access to the Australian community, due to dialysis and kidney transplant being in short supply. The MOC concluded that the provision of the services would be likely to result in a total estimated cost to the Australian community of $337,198.

Decision

Reasons for decision

In regards to the second, third and fourth named applicants, the Tribunal notes that their visas were refused on the basis that the first named applicant did not meeting PIC 4007. Given the Tribunal has now found that the first named applicant meets PIC 4007, the Tribunal finds that the appropriate course is to remit the applications for the remaining visa applicants for the Minister to consider the remaining visa criteria.DECISION The Tribunal remits the applications for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 858 visa:·PIC 4007(1)(c) for the purposes of cl 858.221 of Schedule 2 to the Regulations.Naomi SchmitzMemberATTACHMENTMigration Regulations 1994Schedule 44007(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) subject to subclause (2) — 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 (1A); 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.(1A)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.(1B)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 (1A)(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.(2)The Minister may waive the requirements of paragraph (1)(c) if.(a) the applicant satisfies all other criteria for the grant of the visa applied for; and(b) the Minister is satisfied that the granting of the visa would be unlikely to result in:(i)undue cost to the Australian community; or(ii)undue prejudice to the access to health care or community services of an Australian citizen or permanent resident.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.