Migration Agent Andrew Woo discusses a recent decision on health waiver claims
The Federal Circuit Court of Australia in Haque & Ors v Minister for Immigration & Anor [2015] FCCA 1765 ruled that although a decision maker is normally bound to accept the opinion of the Medical Officer of the Commonwealth (MOC) as to whether a person meets the relevant health requirement for the visa applied for, the decision maker should only accept an opinion that is properly formed and is not based on significant mistaken facts. It follows that simply following the unreasonable or illogical opinion of the MOC by the decision maker whether it is a case officer or a tribunal member will make the decision invalid or legally ineffective in the sense that the decision has to be re-determined according to law. In other words, the opinions of the MOC may be successfully challenged in some circumstances if for instance the MOC comes back with unreasonable or ridiculously excessive costings for a specific medical condition of the visa applicant. The possibility of challenging the MOC findings may have some positive implications for visa applicants with adverse medical conditions whether there is a waiver of the health requirement available or not.
The decision in this case concerned the primary visa applicant (the applicant) who had a 12 year old daughter diagnosed with autistic spectrum disorder. The applicant was applying for a permanent skilled visa for which there is no health waiver available i.e. PIC 4005 as opposed to PIC 4007. Any costing greater than $40,000.00 by the MOC would have meant that the visa applicant did not meet the health requirement contained in PIC 4005. This would result in a refusal decision automatically if the costing or the opinion of the MOC had been formed on the basis of logical evidence. However in this case, a Review Medical Officer of the Commonwealth (RMOC) made a paper-based decision (which first concluded that the daughter was totally dependent in all of her activities of daily living before giving its “Does Not Meet Opinion”) which was at complete odds with various doctors opinions especially in terms of the daughter’s activities of daily living although there was no evidence at all to support the daughter’s total dependence in diverse activities of daily living. The Tribunal felt that it was bound to accept the tainted opinion of the RMOC. In fact the Tribunal should have refused to accept it. The court held that the Tribunal thereby fell into jurisdictional error, leading the court to quash the decision of the Tribunal and revert the matter back to the Tribunal for re-determination.
What would this result have meant for the applicant assuming that the Tribunal is to re-hear the matter after obtaining a further opinion of the RMOC? Would the applicant have succeeded in obtaining the visa applied for? Unfortunately the answer is NO. Although the costing may differ depending on the severity of autistic spectrum disorder concerned, costing for this specific medical condition usually range from $1,000,000.00 to $4,000,000.00 when taking into consideration all the services required for the child such as early intervention services, residential care services, Commonwealth disability services, State disability services and Special education services. The total likely costs of these services for this applicant’s child would have far exceeded the threshold of $40,000.00 for PIC 4005. In the writer’s view, this court’s decision may have been a pyrrhic victory for the applicant in this particular case.
But, there are of course some positives out of this case for applicants with medical conditions especially those applying for temporary visas such as Temporary Work (Skilled) Visa (Subclass 457) or those counting on waivers of the health criteria before the grant of permanent residency. This case confirms that there would be some protection against the MOC’s opinions in relation to costing that are excessively high, illogical and unreasonable in the face of available medical evidence. In such circumstances, a new opinion from the RMOC should be requested and this in turn may lower the costing for the specific medical condition. It may be possible to bring the total costing down under the $40,000.00 limit, thereby satisfying the PIC 4005 or reduce the total likely costs to the Australian community for the purposes of health waiver provisions. The common logic is the less the estimated cost to the Australian community for the medical condition is, then the more likely the grant of a health waiver.
ANDREW WOO (Registered Migration Agent No. 1383628)
For more information, Contact Lachlan Riches (Registered Migration Agent No. 9473887) or Andrew Woo (Registered Migration Agent No. 1383628) on 1800 600 664 or complete the Contact Form on this page.
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