The health criteria: Assessments. Challenging validity and complex issues

Peter Bollard LLB,Solicitor

Accredited specialist in immigration law

Lewis & Bollard Solicitors

1 Some recent costings from Medical Officers of the Commonwealth

1 Asymptomatic multiple sclerosis

Female

25 years old

Pharmaceuticals$1,220,000

Medical services$53,350

Total$1,273,350

2 Severe Thalassemia

Female

3 years of age

Medical services$5,922,000

Total$5,922,000

3 Asymptomatic Chronic Viral Hepatitis B

Male

30 years of age

Pharmaceuticals$264,000

Medical services$71,500

Total$335,500

4 Asymptomatic HIV

Male

48 years of age

Pharmaceuticals$425,634

Medical services$43,065

Total$468,699

Breakdown

Medical services

$1,305 x 33 years = $43,065

Pharmaceuticals

$12,898 X 33 years = $425,634

Total$468,699

5 Asymptomatic HIV

Male

27 years old

Pharmaceuticals$648,000

Medical services$81,000

Total $729,000

2 Non –migration members of the family unit declining to undertake medicals

Schedule 2 provisions in respect of certain provisional and permanent visas provide an escape from the “one fails or fails “rule in certain circumstances-here is an example:

Subclass 189.215

(6)Eachmember of the family unitof the applicant who is not an applicant for a Subclass 189 visa:

(a)satisfies public interest criteria4001,4002,4003and4004; and

(b)satisfiespublic interest criterion 4005unless it would be unreasonable to require the member to undergo assessment in relation to the criterion.

Below is an extract from the Procedures Advice Manual:

When are non-migrating family members not required to undertake health examinations

Overview

Requiring non-migrating dependent children to undergo health examinations can prove challenging especially in difficult situations, including where the children are no longer in the applicant’s custody.

Schedule 2 criteria for some visa subclasses provide for s65delegates to not require a non-migrating family member to undergo health examinations if the s65delegate is satisfied that it would be ‘unreasonable’ to require the person to do so.

As ‘unreasonable’ does not have a legislated definition, officers must give it its usual dictionary meaning. They should, however, keep in mind that having all family members undergo health examinations up front can help avoid difficult situations in the future.
For example, if a migrant to Australia decides after a period of time that they want to sponsor a family member who remained outside Australia, difficulties can arise if the family member has a major health concern that could lead to significant costs being incurred or Australian access to health care services being prejudiced.

If officers decidenotto request health examinations, they should counsel the applicant that if circumstances change and the family member does apply to migrate, the family member would be required to undergo health assessment at the time of application.

A decision not to require a non-migrating family member to undertake health examinations is not a “waiver” of the health requirement. Rather, officers are recommending that it is unreasonable, given the situation and supporting evidence, to request the family member to undergo the health examinations normally required.

The relevant health examinations should be edited out in HAP with the reason that the examinations were ‘unreasonable to undergo’ - refer to the Bordernet -Immigration health processing guidelines for case officers– Specific health case issues – Managing health examinations –Managing health for non-migrating dependantsdocument.

In this PAM3 instruction:

  • Claims that health examinations cannot be undertaken due to custody arrangementsand
  • Institutionalised family members

provide specific guidance in relation to:

  • two common situations in which, if applicable to the visa subclass in question, officers may find that the ‘unreasonableness’ clause applies and
  • the documentary evidence that should be requested.

Claims that health examinations cannot be undertaken due to custody arrangements

If a visa applicant claims difficulty in having a non-migrating child undergo required health examinations due to custody arrangements, officers should corroborate such claims:

  • if possible, by contacting the custodial parent by phone (with the applicant’s permission), because this can save time, avoid misunderstandings and quickly verify the applicant’s claims

or

  • by requesting the following documentation:
  • a statutory declaration or notarised statement from the custodial parent outlining that the relevant child will not be undertaking health examinations and why and
  • a legal document outlining the custody arrangements between the migrating and custodial parents.Note:If this is not possible and the applicant no longer has custody of the child, officers should, if possible, try to have the claims corroborated by an independent third party. Further evidence could include:
  • a statutory declaration or notarised statement from an independent third party outlining the children’s circumstances
  • a court order indicating that the visa applicant has been denied access to the child or
  • written correspondence between the applicant and former partner which supports the applicant’s claims of difficulty.

Institutionalised family members

Under policy, it would generally be considered unreasonable to require a non-migrating family member to undergo a health assessment if they have been institutionalised (possibly as a result of a court order) and it is not known whether they are likely to ever be discharged. Officers should request evidence of the non-migrating family member’s institutionalisation.

3 Adoption as a solution

The Migration Review Tribunal decision below deals with an application where a non migrating child who did not meet the health criteria and was adopted out by her parents (who were applying for a Subclass 886 visa) between the date of visa refusal and the tribunal hearing.

The tribunal then found in favour of the parents as the child was no longer a member of their family unit.

1317310 [2014] MRTA 2673 (14 November 2014)

4 Schedule 4020 problems

As participants would know Schedule 4020 applies to information and documents supplied in support of an application for a visa held in the 12 months before a visa application is made.

4020 (1)There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part5-reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:

  1. (a) the application for the visa; or
  2. (b) a visa that the applicant held in the period of 12 months before the application was made.

Many people granted Subclass 457 visas go on to apply for permanent visas and this is where a problem arises.

People applying for Subclass 457 visas are asked the following questions about medical conditions and often answer “No” to all questions.

During your proposed visit to Australia, do you, or any other person included in this application, expect to incur medical costs, or require treatment or medical follow up for:

Blood disorder
Cancer
Heart disease
Hepatitis B or C
Liver disease
HIV infection, including AIDS
Kidney disease, including dialysis
Mental illness
Pregnancy

The writer is seeing cases where (when undertaking medicals for a permanent visa) the applicant admits to having had ongoing treatment for one of the conditions mentioned at the time they applied for the Subclass 457 visa.

This immediately puts them at risk of being refused the permanent visa on Schedule 4020 grounds and facing a 3 year ban on most new visa applications.

5 Pokharel v Minister for Immigration & Anor [2016] FCCA 3295 (19 December 2016)

  1. On 16 July 2012 Mr Pokharel applied for a Subclass 885 visa and included his wife as a secondary applicant.
  1. On 4 January 2014 his wife gave birth to their daughter Avaha and Avaha was added to the application on 13 March 2014.
  1. The Department refused the application on 27 February 2015 on the basis that Avaha did not meet PIC 4005
  1. On 15 March 2015 an application for review was lodged with the AAT
  1. In November 2015 the Tribunal wrote to the applicant inviting him to attend a hearing on 27 January 2015
  1. On 8 December 2015 the applicant’s lawyers wrote to the tribunal requesting an adjournment of the hearing.
  1. On 15 January 2016 the Tribunal advised in writing that the request for an adjournment had been refused.
  1. On 15 January 2015 solicitor on behalf of the applicant, again requested in writing that the hearing be postponed. Their letter included the following:
  2. “AN UPDATE
  3. We have been able to obtain medical reports and records from the Lady Cilento Children’s Hospital from 29 November 2014 to present. However, we are yet to receive medical records and reports from the Mater Health Service for the period of 4 January 2014 to 28 November 2014. Additionally, we are yet to obtain the Department of Immigration and Border Protection’s file and we also need to engage medical experts and obtain their reports. We have also requested access to the Administrative Appeal Tribunal’s file on this matter.
  4. As previously communicated and as you can appreciate, this will require some time. Accordingly, we again, respectfully request an adjournment of the hearing scheduled for 27 January 2016. We note in this regard the Registry’s verbal advice on the 16 December, an adjournment of the Application, if not granted beforehand, can be again made on the 27 January 2016.”
  1. By email dated 18 January 2016 the AAT refused the request.
  • ...”
  1. At the hearing on 27 January 2016 the applicant’s representative again requested a postponement/adjournment of the hearing and the request was refused.
  1. On 27 January 2016 the Tribunal affirmed the Department’s decision.
  1. On 19 February 2016 the applicant filed an application for judicial review in the Federal Circuit Court of Australia.
  1. The court held that the tribunals decision was affected by jurisdictional error – set out below are extracts from the judgment.
  1. The amended grounds of application read as follows:-
  2. “1. The Second Respondent’s decision was affected by jurisdictional error in failing to act reasonably in refusing the applicant’s request for adjournment to obtain material relevant to the review.
  3. 2. The Second Respondent denied the Applicant natural justice.
  4. 3. The decision to proceed with the review was unfair and unjust, which abandoned substantial justice and the merits of the case.
  5. 4. The Second Respondent thereby contravenedPart 5of theMigration Act 1958, particularlysections 353,375A,360and363(1).
  6. 5. The decision of the Second Respondent was otherwise affected by jurisdictional error:
  7. Particulars:
  8. a) The Second Respondent failed to determine whether Public Interest Criterion 4005 was satisfied as at the date of the hearing.
  9. b) The Second Respondent misconceived its task or asked itself a wrong question and failed to appreciate the true extent of its decisional freedom (as to whether it was obliged to take opinions of Medical Officers of the Commonwealth to be correct; whether it should obtain a further opinion of a Medical Officer of the Commonwealth; and whether it should accede to an adjournment request “with a view to seeking a third opinion of a Medical Officer of the Commonwealth”) by
  10. i. Failing to identify which opinion of a Medical Officer of the Commonwealth it took to be correct;
  11. ii. Failing to consider whether either of the opinions of the Medical Officers of the Commonwealth reflected the level or severity of the applicant’s daughter’s condition as at the date of the hearing and, accordingly, whether they were opinions of the kind authorised by the regulation which the Tribunal was entitled and obliged to take as correct.
  12. c) Alternatively, there was no evidence and intelligible justification for a conclusion that the level or severity of the applicant’s daughter’s condition had not changed between the date of the respective opinions of the Medical Officers of the Commonwealth and the date of hearing such that the Tribunal was authorised and obliged to take the opinions as correct, and accordingly, the decision is legally unreasonable.”

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  1. I agree with the submission made on behalf of the applicant in relation to this issue. The Tribunal stands in the shoes of the decision maker. The Tribunal is required to conduct a fresh consideration of the original application. Accordingly, the relevant date of the decision referred to in clause 885.226 of the Regulations is the date of the Tribunal decision – which in this case was also the date of the Tribunal hearing namely, 27 January 2016.
  1. This interpretation of the task of the Tribunal appears to be implicitly accepted by the first respondent in paragraph 17.5 of the written submissions filed 31 October 2016. In that paragraph the first respondent has submitted that,“the most recent MOC opinion was less than one year old as at the date of the Tribunal’s decision”. There does not seem to be any reason why the first respondent would make that submission if, as appears to be contended in paragraph 15 of those written submissions, the first respondent is maintaining that the relevant “decision” referred to in clause 885.226 is in fact the delegate’s decision. As is apparent, I accept the submissions made on behalf of the applicant in relation to this issue.

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  1. The fact that the two MOCs described the child’s condition as “mild developmental delay” is particularly relevant.
  1. As noted, the two MOCs relied upon an examination of the child that took place when the child was only 3 months and 16 days old. The Tribunal hearing took place after the child’s second birthday.
  1. As was noted by Siopis J inRobinson(supra at paragraph 41) – the Tribunal (in this case) is only entitled and obliged to take the MOCs as correct if those opinions were of a kind which were validly authorised by the Regulations. To again use words utilised by Siopis J inRobinson(supra at paragraph 43) – a proper construction of Public Interest Criterion 4005 of the Regulations, requires the MOC to ascertain the form or level of condition suffered by the third named applicant (the child in question) – as at the date of the decision. This is required by clauses 885.22 and 885.32 of the Regulations. In the particular circumstances of this case – the MOCs were not“of a kind authorised by the regulations”and, accordingly, the Tribunal fell into error by considering itself bound to act upon the opinions. Further, in acting upon the MOCs as though they were binding upon the Tribunal – meant that the Tribunal in this case was acting upon a wrong view of the law and erred in the interpretation of the law (or its application). (Once again I have utilised words used by Siopis J inRobinson).

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  1. To put it another way, I agree with the written submission provided on behalf of the applicant (filed 30 September 2016) where it was stated:-
  2. “15. ...the Tribunal erred in holding that the two MOC opinions previously obtained were sufficient to discharge the duty to obtain a valid MOC opinion.”

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  1. Further, the Tribunal misconceived its task or asked itself a wrong question and failed to appreciate the true extent of its decisional freedom (as to whether it was obliged to take opinions of Medical Officers of the Commonwealth to be correct; whether it should obtain a further opinion of a Medical Officer of the Commonwealth; and whether it should accede to an adjournment request “ with a view to seeking a third opinion of a Medical Officer of the Commonwealth”) by – failing to consider whether either of the opinions of the Medical Officer of the Commonwealth reflected the level or the severity of the applicant’s daughter’s condition as at the date of the decision (hearing) and, accordingly, whether they were opinions of the kind authorised by the Regulation which the Tribunal was entitled and obliged to take as correct.

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  1. By failing to appreciate that it (the Tribunal) was not entitled to rely upon the two previous opinions (those opinions not being valid or authorised opinions as at the date of the decision/hearing) leads the Court to conclude that the refusal to grant the adjournment (referred to as a postponement) amounted to jurisdictional error because the refusal was legally unreasonable.

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  1. Having concluded that the Tribunal did commit jurisdictional error (as outlined) I have also come to the conclusion that, as a matter of discretion, the matter should be sent back to the Tribunal for determination according to law. In reaching this conclusion I have had regard to the affidavit of Jayanti Shreshtha Pokharel (the applicant’s wife). That affidavit was filed on 14 September 2016 and is relied upon by the applicant in these judicial review proceedings. That affidavit exhibits letters from various medical professionals. Those letters were signed by the various medical professionals in February 2016 – shortly after the date of the Tribunal’s hearing and decision. In a letter dated 19 January 2016 and signed on 15 February 2016 Doctor Nigel Dore of the Lady Cilento Children’s Hospital states in relation to the child, inter alia:-
  2. “...My expectation is that her level of trisomy 21 appears to be relatively high functioning and I would not expect her to be a burden on the Australian tax payer in the future. I would support her parents’ application to remain in Australia in the future.”

In a letter dated 10 February 2016 and signed on 17 February 2016 Doctor Andrew Cotterill of Lady Cilento Children’s Hospital states, in relation to the child inter alia:-

“...She is a healthy young lady who is thriving and being well cared for. She will not lead to significant costs to the Australian Government on the basis of her current medical condition.”

In a letter dated 19 January 2016 and signed on 22 February 2016 Doctor Margaret-Anne Harris of Lady Cilento Children’s Hospital states:-

“From a respiratory aspect, Ava is very well and I would not expect any significant long-term problems over the coming decades...I thus do not believe that Avaha will pose any increased health costs on the community in her coming decades, above and beyond that for a normal individual within Australian society.”

In a letter dated 22 February 2016 Doctor Richard Brown, General Paediatrician states:-

“Avaha does not have any particular health issues at this stage that are likely to impact significantly on her long-term health.
In view of the diagnosis of Down Syndrome, Avaha will most likely continue to have some degree of language delay and delay of cognitive development. The severity of this is difficult to predict at this stage, although her current developmental level suggest that this is unlikely to be severe...I would anticipate further improvement in her language and cognitive development with appropriate intervention over the next few years. I consider that it would be unlikely that Avaha would need to attend a Special School. I consider that it is more likely that she could attend a mainstream school with appropriate support.”

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