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

1. 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).

2. 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. 

3. 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.

4. 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

5. 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.

6. 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.

7. 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.

8. 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.

9. As the applicant in this case has applied for a permanent visa, the exemption provision in PIC 4007(1B) does not apply.

10. 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

11. 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.  

12. 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.

13. On 18 February 2022, the first named applicant submitted information to the Department seeking a health waiver.

14. 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

15. 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.

16. The applicants were represented in relation to the review.

17. 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.

18. 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.

19. As noted above, the Tribunal must take the MOC opinion as correct, but must first be satisfied the MOC has applied the correct test in forming the opinion: Robinson v MIMIA (2005) 148 FCR 182 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, 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.

20. The new MOC is dated 11 December 2023. The first named applicant was assessed against the PIC 4007 and was found to meet the health requirement for a permanent stay in Australia.

21. The Tribunal is satisfied that the opinion has been validly made. Accordingly, based on the opinion of the updated MOC, the first named applicant satisfies PIC 4007(1)(c).

    Conclusion

22. Given the findings above, the appropriate course is to remit the application for the first named applicant.

23. 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

24. 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 Schmitz
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    Schedule 4

    4007(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.