1928904 (Migration) [2020] AATA 673 (9 March 2020)

Last Updated: 27 March 2020

1928904 (Migration) [2020] AATA 673 (9 March 2020)

DECISION RECORD

DIVISION: Migration & Refugee Division

CASE NUMBER: 1928904

MEMBER: Karen McNamara

DATE: 9 March 2020

PLACE OF DECISION: Sydney

DECISION: The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) visa.

Statement made on 09 March 2020 at 11:37am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 (Regional Sponsored Migration Scheme) – medical condition resulting in significant cost to Australian community – pharmaceuticals and medical services – policy change to significant cost threshold and time period for estimating costs – availability of cheaper medicines – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), r 2.25A, Schedule 2, cl 187.235(1), Schedule 4, criterion 4005(1)(c)(ii)(A)

CASES
JP1 v MIAC [2008] FMCA 970
Ramlu v MIMIA [2005] FMCA 1735
Robinson v MIMIA [2005] FCA 1626; (2005) 148 FCR 182

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 Immigration on 1 October 2019 to refuse to grant the applicant a Regional Employer Nomination (Permanent) visa under s.65 of the Migration Act 1958 (the Act).
2. The applicant applied for the visa on 22 August 2017. The delegate refused to grant the visa on the basis that 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.
3. The applicant appeared before the Tribunal on 27 February 2020 via telephone from [Country 1] to give evidence and present arguments. The Tribunal also received oral evidence from Mr [A] and Dr [B].
4. The applicant was represented in relation to the review by his registered migration agent. The representative did not attend the hearing.
5. The Tribunal notes that numerous evidence and submissions were lodged by or on behalf of the applicant. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein.
6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.
8. The applicant in this case is a [age] year old citizen of [Country 1]. The applicant has nominated his occupation as [Occupation] (ANZSCO [Code]) and is nominated by [Employer].
9. The applicant undertook a health examination and was assessed against the health requirement for permanent stay in Australia. On 18 April 2019 a Medical Officer of the Commonwealth (MOC) gave an opinion that the applicant did not satisfy PIC 4005 (1)( c)(ii) (A) in Schedule 4 to the Migration Regulations.
10. On 1 July 2019, the policy threshold for the level of costs regarded as significant (the significant Cost Threshold) was increased to $49,000. The time period used for estimating significant costs by the MOC’s for permanent and provisional applicants was reduced to a maximum of 10 years.^[1]
11. In accordance with these changes the Department referred the applicant’s health case to the Migration Medical Service Provider (BUPA) for a new MOC opinion based on the new policy thresholds.
12. On 16 August 2019, the MOC provided an opinion based on the most up to date information available. The MOC assessed the applicant as not meeting the health requirements as required by sub regulation 187.235(1). The assessment opined that the applicant did not meet the criterion PIC 4005(1) ( c) (ii) (A) in Schedule 4 to the Migration Regulations.
13. On 12 October 2019, the applicant lodged an application for review with the Tribunal.
14. On 29 October 2019 the Tribunal invited the applicant to obtain a further opinion from a MOC.
15. On 13 November 2019, the applicant requested a further opinion from a MOC. Included with the request was:
    • Request for a Further Opinion from a Medical Officer of the Commonwealth signed and dated 13 November 2019; and
    • Receipt for the amount of $520 being payment for Request for a Further Opinion from a Medical Officer of the Commonwealth.
    • An opinion from Dr [B] [Health Centre] dated 11 June 2019.
16. A report from the MOC dated 29 November 2019 was provided to the Tribunal. This report considered the information available to date concerning the applicant, including but not limited to reports from Dr [B] (18 February 2019 and 11 June 2019), Dr [C] (15 January 2016) and Dr [D] (19 February 2014) and the report of the examination conducted by the panel physician on 19 February 2019.
17. The report found that the applicant had been assessed against PIC 4005 for the period of a permanent stay in Australia. The report found that the applicant did not satisfy PIC 4005(1) ( c)(ii)(A).
18. The MOC identified the medical condition to which the public interest criterion had been applied and the form or level of the condition suffered by the applicant. The MOC applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition.
19. The MOC as indicated in 16 above had regard to the information provided and available to them regarding the applicant.
20. On 3 February 2020, the Tribunal invited the applicant to appear before the Tribunal to give evidence and present arguments in relation to his case.
21. On 3 February 2020, the applicant’s representative sought a postponement of the hearing on the grounds that the applicant was offshore and due to Government imposed travel restrictions in response to the coronavirus outbreak, was uncertain when the applicant would be able to return to Australia.
22. On 4 February 2020, the Tribunal advised the representative that a postponement was not granted and provided the opportunity for the applicant to attend the hearing via telephone from [Country 1].
23. On the 7 February 2020, the Tribunal wrote to the applicant under section 359(A), providing a copy of the 29 November 2019 MOC report and sought a response or comments in reply to that opinion by 21 February 2020.
24. On 19 February 2020, the applicant provided to the Tribunal the following documents:
    • Submission titled “Response – [the applicant] dated 14July 2019
    • Report dated 11 June 2019 Dr [B] [Health Centre]
25. At the hearing of 27 February 2020, the applicant was invited to comment on the Tribunal’s preliminary view that the MOC’s opinion is valid. The applicant addressed the costings identified by the MOC in relation to his health assessment. The applicant told the Tribunal that cheaper drugs were available and that Dr [B] could provide evidence to support the availability of cheaper medication.
26. The applicant told the Tribunal that Dr [B] would be able to confirm that there had been changes to the medication costs listed in her advice to the Department dated 11 June 2019 and told the Tribunal that alternative cheaper medicines were available, including ordering the drugs online from overseas.
27. The Tribunal explained to the applicant that the costs quoted by the applicant and Dr [B] were for drugs listed under the Pharmaceutical Benefits Scheme (PBS) which are subsidised by the Australian Government. When assessing the costs involved with a disease and /or condition that an applicant has, the MOC applies their medical judgement and the hypothetical person test.
28. The Tribunal took evidence from Dr [B] who advised that since her submission to the Department dated 11 June 2019, that there were cheaper alternative drugs now available. The Tribunal confirmed with Dr [B] that the costs she referred to were the PBS cost. The Tribunal provided Dr [B] the opportunity to document and submit to the Tribunal her reviewed costings of the applicant’s treatment.
29. On the 27 February 2020, the Tribunal wrote to Dr [B] to confirm its request that she document her costings and provide an update of her previous submission of 11 June 2019.
30. On 4 March 2020, the Tribunal received Dr [B]’s submission of a summary of estimated costs of care including updated medication costs for the applicant. The submission states inter alia “it is therefore feasible to provide [the applicant] with very adequate medication for [amount] over a ten year period based on current PBS pricing.” Additionally Dr [B] estimates the applicant’s pathology costs ‘ as per Medicare rebate” as [amount] and specialist care [amount] over a ten year a period. The total estimate by Dr [B] for the applicant’s care over a ten year period being [amount]
31. The Tribunal has had regard to the applicant’s submissions and oral evidence, including the evidence provided by Dr [B]. The Tribunal notes that the evidence provided by Mr [A] attested to the applicant’s character.
32. Where the MOC opinion relates to PIC 4005(1) ( c) (ii)(A) i.e. that provision of health care or community services relating to the disease or condition would be likely to result in significant cost to the Australian community, the MOC is not obliged to state what the significant cost would be in order for the MOC opinion to be valid. ^[2] It is for the MOC to determine whether a cost is significant based on his or her medical judgment.^[3] Nor is the MOC obliged to explain why a particular cost is considered to be a significant cost.^[4]
33. The Tribunal notes that the applicant has been provided with specific information relating to the MOC’s assessment of significant costs and afforded opportunity to respond. On numerous occasions during the hearing the Tribunal advised the applicant that the Tribunal is required to take the opinion of the MOC to be correct for the purposes of deciding whether a person meets a requirement or satisfies the criterion and does not have the discretion to waive the health criterion in PIC 4005. The MOC opinion of 29 November 2019, states that the applicant does not meet PIC 4005 (1)(c )(ii)(A) in Schedule 4 to the Migration Regulations.
34. The issue before the Tribunal is whether the opinion of the MOC complies with/is authorised by the regulations (r.2.25A as prescribed in Schedule 2 to the Migration Regulations 1994).

Is the applicant free from the relevant diseases or conditions (PIC 4005(1)(a), (b), (c))?

35. Public interest criterion 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.
36. Public interest criterion 4005(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 service are excluded from this consideration: PIC 4005(3).
37. As the applicant in this case has applied for a permanent visa, the exclusion provision in PIC 4005(3) does not apply.
38. 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).

Is a MOC opinion required?

39. On the evidence before the Tribunal, a MOC opinion is required. 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] FCA 1626; (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.
40. The Tribunal has before it, three opinions from Medical Officers of the Commonwealth in relation to the applicant. All three opinions come to the same conclusion being the applicant does not satisfy PIC 4005(1) ( c) (ii) (A).
41. The MOC in their report of 21 February 2019 identified the form or level of the condition suffered by the applicant as “asymptomatic HIV infection which is well controlled by antiretroviral medication but requires ongoing medication to remain in good health.” The MOC applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition. The MOC states that “a hypothetical person with the applicant’s condition of the same severity would be likely to require ongoing treatment with antiretroviral medication and periodic medical review. 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, would be likely to require health care or community services during the period specified as above.”

42. The applicant has been assessed for the period of a permanent stay in Australia.^[5]
43. The MOC states that these services would be likely to include Pharmaceuticals and Medical services and concludes that the provision of these health care and/or community services would be likely to result in a significant cost to the Australian community in the areas of health care and/or community services.
44. After considering all of the above, the Tribunal is satisfied that it has obtained an opinion from a Medical Officer of the Commonwealth, the most recent being 29 November 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.
45. Accordingly, based on the opinion of the MOC, the applicant does not satisfy Public Interest Criterion 4005(1)(c). It follows that the applicant does not satisfy cl.187.235(1) of the regulations, which is a requirement for the grant of the visa. Therefore the applicant does not meet cl.187.235 of the Regulations.
46. As the applicant has not satisfied the requirements of PIC 4005, and as such does not satisfy the requirements of cl.187.235, the Tribunal must affirm the decision under review.

DECISION

47. The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) visa.

Karen McNamara
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.

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^[1] Policy –Migration Regulations Sch 4 - 4005-4007 – The health PIC-Sch4/4005-4007–The health requirement –The MOC Assessment –Significant costs (re-issued 01/07/2019).
^[2] JP1 & Ors v MIAC [2008] FMCA 970 (Riley FM, 22 August 2008) at [13], citing Blair v MIMA [2001] FCA 1014 (Carr J, 31 July 2001) at [46]. The Court in JP1 was considering a MOC opinion in relation to (then) PIC 4005(c) for an applicant with HIV.
^[3] JP1 & Ors v MIAC [2008] FMCA 970 (Riley FM, 22 August 2008) at [33] referring to MIMA v Seligman [1999] FCA 117; (1999) 85 FCR 115 at [53].
^[4] JP1 & Ors v MIAC [2008] FMCA 970 (Riley FM, 22 August 2008) at [57].

^[5] On 1 July 2019, the time period used for estimating significant costs by the MOC’s for permanent and provisional applicants was reduced to a maximum of 10 years.