1. Assessment, Challenging Validity and Complex Policy Issues
The Health Criteria:
Assessment, Challenging Validity and Complex Policy Issues
Dr Jan Gothard Disability and Health Specialist
Estrin Saul Lawyers 24 February 2017

2. Reg 2.25A(3) of the Regulations
The Minister is to take the opinion of the Medical Officer of the Commonwealth […] to be correct for the purposes of deciding whether a person meets a requirement or satisfies a criterion.  

3. “The current regulations state that a processing officer must take the opinion of a Medical Officer of the Commonwealth to be correct. This provision prevents case officers from substituting their own view as they do not have the required specialist skills or knowledge to make a decision as to whether an applicant with a serious health condition meets the requirement.”
Australian Government response to the Joint Standing Committee on Migration report: Enabling Australia, Inquiry into the Migration Treatment of Disability, November 2012

4. Responding to a s57 request
If the applicant provides no substantive information or information that is not medical in nature, delegates may assume that the original MOC opinion is correct.
If the applicant provides new information that is medical in nature, delegates should send this information to the MOC for a new opinion.

5. What is a lawful medical opinion?
lists the reports considered in forming the opinion;
states the applicant’s health condition;
describes the severity of the condition;
describes the health care or community services likely to be required by a hypothetical person who has the same condition as the applicant (including the same severity); and
specifies the assessed period of stay.

6. What makes up the MOC opinion?
medical assessment of the health or disability condition;
confirmation of the time frame over which the visa is costed or assessed;
some understanding of the circumstances of the applicant;
costing the above based on schedules set out in the various Notes for Guidance for Medical Officers of the Commonwealth.

7. Subitem (1)(c) - PIC 4005, 4006A, 4007
An applicant 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; […] 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.

8. Waiver for PIC 4007
The Minister may waive the requirements of subitem (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.   

9. What are health and community services?
Commonwealth disability services
State disability services
Health services including pharmaceutical benefits
Special education services

10. Costs for Commonwealth disability services
Excluded for temporary visa applicants (see IMMI 11/073)
‘The Instrument operates to list health care and community services that a temporary visa applicant would be unlikely to be able to access while in Australia’ (Explanatory Statement to IMMI 11/073)

11. Who is entitled to Medicare?
[a] person … who is lawfully present in Australia and whose continued presence in Australia is not subject to any limitation as to time imposed by law.
s3(d) of the Health Insurance Act 1973 (Cth)

12. State disability services and NDIS
Temporary residents are not currently eligible for state disability services in most States and Territories.
Eligibility for National Disability Insurance Scheme (NDIS) is confined to:
Australian citizens;
Australian permanent residents; and
Protected New Zealand citizens.

13. A more practical approach to waivers?
Delegates should consider the practical realities of waiving the health criteria.
Delegates should consider whether the grant of this visa in itself could lead to the particular costs identified by the MOC.

14. Actual use of services irrelevant
In determining whether an applicant’s condition is likely to result in significant costs or prejudice access, MOCs cannot take into account whether the applicant will actually use the identified health care or community services.
They must assess the likelihood of an applicant’s condition resulting in a need for health care or community services without regard to the applicant’s personal circumstances or any claims by the applicant that they do not intend to use the identified care or services.
Intentions cannot legally be enforced once permanent residency is obtained. Some applicants may also simply change their mind regarding services once residence is achieved and the full level of costs is realised.
PAM3: Sch4/ The health requirement

15. ‘MOCs must provide an opinion as to whether an applicant’s condition or disease would be likely to result in “significant” health care and community service costs if a visa were to be granted’.
PAM3: Sch4/ The health requirement

16. Case studies

17. Suggestions for interpreting MOC opinions
Has the age of the applicant been considered?
Have the particular requirements of the visa been considered?
Eligibility for Medicare?
Residential eligibility for state disability services?

18. Suggestions for interpreting MOC opinions
Does the MOC opinion adhere to and to reference the costs in Notes for Guidance for Medical Officers which have been drawn on in forming the opinion?

19. Future challenges - NDIS
‘When calculating costs for visa applicants under the NDIS, each person’s level of disability and individual circumstances must be assessed to accommodate the wide spectrum of circumstances that affect eligibility and options for disability support.’
Notes for Guidance for Medical Officers, February 2016