Applicant Y v Minister for Immigration

[2007] FMCA 468

FEDERAL MAGISTRATES COURT OF AUSTRALIA

APPLICANT Y v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 468

MIGRATION – Application to review decision of Migration Review Tribunal – failure to meet health criteria – whether Tribunal fell into error in relation to opinion of MOC – whether Tribunal erred in manner in which it dealt with medical reports – whether Tribunal applied the wrong test in relation to undue cost to the Australian community. 

Migration Act 1958, s.359
Migration Regulations, Regulation 2.25A, Schedule 4, Item 4007

Blair v Minister for  Immigration &  Multicultural Affairs [2001] FCA 1014
Bui v Minister for  Immigration &  Multicultural Affairs (1999) 85 FCR 134
Imad v Minister for  Immigration &  Multicultural Affairs [2001] FCA 1011
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24
Minister for Immigration & Ethnic Affairs v Conyngham (1986) 68 ALR 441
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Multicultural Affairsv Eshetu (1999) 197 CLR 611
Minister for  Immigration &  Multicultural Affairs v Seligman (1999) 85 FCR 115
Minister for  Immigration &  Multicultural Affairs v Yusuf (2001) 206 CLR 323
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration & Multicultural & Indigenous Affairs v X [2005] FCAFC 209
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 219 ALR 27
Puhlhofer v Hillingdon London Borough Council [1986] AC 484
Robinson v Minister for  Immigration &  Multicultural & Indigenous Affairs (2005) 148 FCR 182
X v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 429
Yavas v Minister for Immigration &  Multicultural Affairs (2006) 229 ALR 548

Applicant: APPLICANT Y

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1131 of 2005

Judgment of: Barnes FM

Hearing dates: 14 December 2006 & 7 March 2007

Delivered at: Sydney

Delivered on: 11 April 2007

REPRESENTATION

Counsel for the Applicant: Mr A. Coombe

Solicitors for the Applicant: Lewis Law

Counsel for the Respondents: Ms R. Francois

Solicitors for the Respondents: Clayton Utz

ORDERS

1. That the application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1131 of 2005

APPLICANT Y

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for review of a decision of the Migration Review Tribunal made on 15 April 2005 affirming a decision of a delegate of the first respondent that the visa applicant was not entitled to the grant of a Partner (Temporary) (Class TK) visa or a Partner (Residence) (Class BS) visa. 

2. The applicant first entered Australia in May 1998 as the holder of a visitor visa. She departed and re-entered Australia on a number of occasions. On 30 June 2001 she married an Australian citizen and on 23 July 2001 she applied for a Subclass 820 partner visa. One of the criteria for such a visa (in clause 820.223 of Schedule 2 to the Migration Regulations) is that the applicant satisfy public interest criterion 4007.

3. On 3 June 2002 the applicant underwent a medical examination by Health Services Australia Limited in connection with her visa application.  She disclosed that she had been diagnosed with HIV.  She provided a letter from her treating doctor (Dr Chen) dated 20 May 2002 concerning her HIV status. 

4. Relevantly that letter was as follows:

   [The applicant] was first diagnosed with HIV in December 200 at Sydney Sexual Health Centre.  At the time of diagnosis her CD4 count was 230 (11%) with HIV viral load of >750 000 copies/ml.  She has not had any AIDS-defined illnesses.  Soon after diagnosis, [the applicant] was commenced on anti-retroviral medication.  Apart from developing a rash from Nevirapine, she has remained well on her medication.  Currently she is on a stable combination of Combivir and Abacavir.  Her most recent results show an undetectable viral load of <50 copies/ml and a CD4 count of 320 (20%).  Apart from the HIV, [the applicant] is a hepatitis B carrier.  Her liver function tests have remained normal.

5. On 7 June 2002 Dr Neyerowitz, a Medical Officer of the Commonwealth, prepared an opinion as to whether the applicant met the prescribed health criteria in relation to the grant of a visa.

6. The medical officer assessed the applicant against the requirements of clause 4005 (sic) of Schedule 4 to the Migration Regulations stating that “In my opinion the applicant fails to meet the above Regulation for the following reasons. The applicant is a person who has been HIV positive since 2000. She is also a hepatitis B carrier. She is currently stable on anti-retroviral therapy. She is likely to require ongoing treatment with anti-viral drugs and make use of various community resources including hospitalisation and income support … the applicant does not meet public interest criterion 4005”.

7. On 14 April 2003 the applicant’s solicitor informed the Department of Immigration that the relationship between the applicant and her husband had broken down “as a result of him assaulting her”. In May 2003 the applicant provided statutory declarations from herself, a medical practitioner and a registered nurse for the purpose of meeting the domestic violence provisions in the Migration Regulations.

8. On 8 May 2003 Dr Phillips, a Medical Officer of the Commonwealth (MOC) provided an opinion that the applicant did not meet the prescribed health criterion in relation to an application for a partner visa (under clause 4007 of Schedule 4 to the Migration Regulations). The opinion, which was said to be based on available medical and radiological reports and the proposed duration of stay sought in Australia, was as follows:

   As per telememo of 7/6/2002, the applicant is a person with HIV infection. 

   She is currently receiving anti-retroviral therapy. 

   The provision of health care for the period of intended residence will involve significant cost, with ongoing anti-retroviral medication, specialist care, intermittent income support and hospital admissions. 

   An estimate of the cost involved for the provision of this care is $250,000. 

   The applicant is a person who is HIV positive. 

   This disease or condition is a disease or condition to which paragraphs 4007(1)(c)(ii)(a) in Schedule 4 of the Migration Regulations 1994 apply regardless of whether or not health care or community services will actually be used in connection with the applicant during the period of the applicant’s proposed stay in Australia.

   A person with such a disease or condition would be likely to require health care or community services or would be likely to meet the medical criteria for the provisions of a community service and provision of such health care or community services relating to the disease or condition would be likely to result in a significant cost to the Australian community in the areas of health care and community services, or prejudice the access of Australian citizens or permanent residents to health care and community services.

   Therefore the applicant does not meet Public Interest Criterion:  4007.

9. On 14 August 2003 a delegate of the first respondent wrote to the applicant care of her solicitor advising that the Medical Officer of the Commonwealth had concluded that she did not meet public interest criterion 4007, pointing out that Regulation 4007(2) provides that health requirements may be waived in strictly defined conditions and advising that the potential impact on the public health and welfare system needed to be considered in relation to waiver. 

10. It invited her comment on the particular circumstances of her case, including the extent of social welfare, medical, hospital or other institutional care likely to be required in Australia and the willingness and ability of others to provide care at no public cost.  A response was sought within 28 days of receipt of the letter.  The applicant was advised that she must include all the material she wished to have considered.

11. On 12 September 2003 the applicant, through her solicitor, responded by providing a letter from her employer (stating she had been employed for two weeks as a casual waitress) and a report from Dr Chen dated 28 August 2003.  That report was as follows:

    [The applicant] has been a regular patient of mine since she was diagnosed with HIV in December 2000.  When she was first diagnosed, her initial CD4 count was 230 and the HIV viral load was above 750,000 copies/ml.  She has not had any previous HIV-related illnesses or AIDS-defining conditions.

    [The applicant] has responded well to her HIV medication:  the viral load has remained undetectable and the CD4 count had increased to 620 by February 2003.  This sustained and significant response over three years on the one drug combination (Trizivir), without requiring any changes in therapy because of therapeutic failure – a response that can be regarded as above average.  With a CD4 count at this level, the prognosis is good. 

    So far, [the applicant] has only required outpatient visits for routine blood tests.  She has not required any inpatient management and is unlikely to require inpatient management in the foreseeable future.  As she has only been on the one drug combination, she has plenty of treatment options if the current combination loses its potency.

12. The applicant’s solicitor also advised that the applicant did not have family in Australia but did have friends who would support and assist her and that she had no doubt that such friends would continue to do so once they become aware of her condition (assuming she did need assistance).  However the letter stated that the applicant was not anxious to advise large number of people of her condition, as her ethnic community in Sydney was a small one and if it became more known that she was HIV positive it could create difficulties for her and her family in her home country. 

13. On 10 October 2003 a delegate of the first respondent refused the application for a Partner visa, finding that the applicant failed health criterion 4007.  The delegate was not satisfied that granting the visa would be unlikely to result in undue cost to the Australian community. 

14. On 16 October 2003 the applicant applied to the Migration Review Tribunal (the Tribunal) for review of the delegate’s decision.  She claimed that there were grounds for a waiver of the health requirements.   

15. On 22 March 2004 the Tribunal wrote to the applicant advising that the Tribunal could not review a medical assessment by an MOC and that its review was restricted to giving the applicant the opportunity to obtain a new medical assessment from a Review Medical Officer of the Commonwealth (for which there was a fee of $330) and/or considering whether to waive the health requirements in the applicant’s case.  The Tribunal stated that it could only waive the visa health requirements where it was satisfied that the granting of the visa would be unlikely to result in undue costs to the Australian community or undue prejudice to the access to health care or community services of other Australians.  It invited the applicant to advise whether she elected to obtain a new medical assessment and advised her that if she elected not to do so the Tribunal would proceed directly to considering whether to waive the visa health requirements in her case.

16. The applicant’s solicitor responded by letter of 7 April 2004 stating that they had discussed the possibility of obtaining a new medical assessment but had advised their client that “In previous cases involving applicants who were HIV positive we have found that the RMOC always affirms the decision of the Medical Officer of the Commonwealth to find that the applicant fails to meet health criteria.  In these circumstances the applicant does not believe that any useful purposes would be served by obtaining a report from the RMOC”

17. On 13 April 2004 the Tribunal wrote to the applicant under s.359 of the Migration Act 1958 (Cth) seeking additional evidence. The letter commenced by advising the applicant that in determining whether she satisfied the visa health requirements the Tribunal must accept as correct the most current medical assessment before it which stated that she did not meet the visa health requirements and that the likely cost to the Australian community as a result of her health condition was $250,000 and that this may mean that she did not qualify for a visa. The Tribunal then set out factors relevant to whether to waive the visa health requirements. It invited the applicant to comment on the medical assessment before the Tribunal and to provide any further information or evidence she considered relevant to the factors outlined which may assist the Tribunal with its decision whether to waive the visa health requirement in her case.

18. On 28 April 2004 the applicant responded through her solicitor. The then solicitor for the applicant conceded that the applicant did not meet the criteria in para 4007(1) of Item 4007 in Schedule 4 to the Regulations in that the Medical Officer of the Commonwealth had made the finding that the grant of a visa to her would lead to a significant cost ($250,000). The letter went on to address the factors specified by the Tribunal as relevant to be taken into account when deciding whether to waive health requirements. In addressing the extent of social welfare, medical, hospital or other institutional or day care likely to be required by the applicant, the applicant’s solicitor suggested that people who were HIV positive and took appropriate medication could lead healthy and normal lives. The submission referred to the report of Dr Chen dated 28 August 2003. The applicant’s solicitor suggested that bearing in mind the report from Dr Chen, it was likely the applicant would continue to remain in good health. As to the overall lifetime charge, it was submitted that there was no certainty that the cost of $250,000 would actually be incurred and that this must be balanced against the fact that the applicant was in paid employment and paid income tax.

19. On 4 June 2004 the applicant attended a Tribunal hearing.  She provided additional information in relation to her financial situation and letters of support from friends. 

20. Subsequently, the appointment of the Tribunal member who had conducted the hearing ended.  The Tribunal was reconstituted.  The applicant’s solicitor advised the Tribunal that it wished to have a further hearing before the reconstituted Tribunal.  A further hearing was conducted.  In its reasons for decision the Tribunal recorded that after the hearing it gave the applicant time to provide a further report from her treating doctor which was to include “an up-to-date assessment of the visa applicant’s health and was also to cover the availability of Trizivir in the applicant’s home country”.  

21. On 27 October 2004 the applicant provided the Tribunal with a copy of a further report of Dr Chen dated 8 October 2004.  It did not refer to the availability of Trizivir in the applicant’s home country, but stated:

    … I am pleased to report that [the applicant] has maintained her excellent response to HIV therapy.  Since my last letter (28 August 2003), [the applicant] has remained on the same anti-retroviral combination (Trizivir), which continues to suppress [the applicant’s] HIV viral load to an undetectable level (less than 50 copies/ml).  [The applicant] has not had any adverse effects from her therapy and has not required any changes to her medication.  Her CD4 count was 680 when last checked in August 2004 – remarkable considering her initial CD4 count was 230 at diagnosis, with a viral load of 750,000 copies/ml. 

    Given her response to therapy and current immunological status, [the applicant’s] outlook is very good, with little chance of AIDS developing within the foreseeable future.  She will require regular three-monthly outpatient visits with routine blood tests, but inpatient management is unlikely to be necessary for some years.  As [the applicant] has only required the same anti-retroviral combination since commencing treatment in 2000, she has plenty of treatment options available should she develop viral resistance.  [The applicant] has always been a regular attender at the clinic:  her excellent adherence to treatment has, no doubt, contributed to her above-average response.

The Tribunal decision

1. On 15 April 2005 the Tribunal affirmed the decision of the delegate to refuse to grant the visa. In its reasons for decision the Tribunal set out Regulation 2.25(A) in relation to referral to Medical Officers of the Commonwealth, clause 4007 of Schedule 4 to the Migration Regulations and policy guidelines on the waiving of the requirements of clause 4007. The Tribunal also summarised the evidence given by the applicant at the hearing, including the fact she had read the MOC’s report, that she had been advised by her doctor that the drug Trizivir was not available in her home country, that as far as she knew HIV treatment was available in her home country but that she did not trust such treatment and was afraid the treatment she would receive there would not be the same as the treatment she was receiving in Australia. She had not made any enquiries about the treatment in her home country apart from asking a nurse at her treating hospital. She was afraid she would be given herbal medication and did not wish to be a guinea pig in experiments in the treatment of HIV in her home country.

2. In the findings and reasons part of its decision the Tribunal recorded the evidence that the applicant was HIV positive and the MOC’s opinion that she failed to satisfy paragraph 4007(1)(c) on the basis that she was suffering from a condition that was likely to result in a significant cost to the Australian community in the areas of health care or community services and the MOC’s opinion that the lifetime cost to the Australian community was $250,000.  The Tribunal stated that Regulation 2.25(A) “provides that the Tribunal must accept the MOC’s opinion as correct”.

3. The Tribunal went on to state that the criterion in paragraph 4007(1)(c) may be waived if the visa applicant satisfies subclause 4007(2) and that in considering whether to waive the requirements the Tribunal must consider “whether the granting of the visa would be unlikely to result in ‘undue’ cost to the Australian community”.

4. The Tribunal referred to the meaning of the word “undue” in the expressions “undue harm” and “undue cost”.  It considered the issue of waiver, referring to factors set out in policy and “other” factors.  First it found no compelling circumstances.  It found that while the applicant had friends who had offered to provide her with support, they had not been advised of her medical condition, so that the weight to be given to the offers of support was severely limited.

5. The Tribunal had regard to the applicant’s educational and occupational needs and prospects and the fact that she had not used the skills she had acquired in courses undertaken in Australia and was not presently studying.

6. In relation to the potential for the applicant’s state of health to deteriorate, the Tribunal referred to Dr Chen’s evidence that she was responding well to her treatment and his opinion that there was little chance of her developing AIDS in the foreseeable future, that inpatient therapy was unlikely to be necessary for some years, that she had plenty of treatment options available should she develop viral resistance and that her adherence to treatment had contributed to her above-average response.  However it stated that “against this must be set the MOC’s opinion that the visa applicant suffers a condition that will incur a significant cost to the Australian community”.

1. Under the heading “the overall lifetime charge to Australian public funds” the Tribunal referred to the fact that the lifetime charge to the Australian community:

   is assessed as being $250,000 by the MOC.  The MOC’s opinion is that this is a significant cost.  The visa applicant relies on her income to support herself.  There is no evidence that she has any other funds from which to meet any future costs.  The … weight that the Tribunal can give to her friends’ offers of help is severely limited.

2. The Tribunal noted that the relationship between the applicant and her sponsor had ceased and that she was a citizen of a named country to which she had returned eleven times from Australia.  The Tribunal was satisfied there was no legal impediment preventing her from returning to her home country.  It had regard to the applicant’s claims that she would be embarrassed and criticised if she had to return and reveal her medical condition, her relationship breakdown and the reason for the breakdown.  However it noted that in the last three years the applicant had spent eight months living in her home country and that while she said she would not be able to use her IT skills in her home country because they were out of date, when asked, she had not said that she would not be able to find work there.  The Tribunal referred to the applicant’s evidence that she had no friends in her home country, but was satisfied she would be able to find work there, noting that she had worked as a high level waitress in Australia for 2½ years and that such work would be available to her in her home country. 

3. The Tribunal found that there were no children of the relationship who would be adversely affected by a decision not to waive and that the applicant’s family members were located in her home country, that she had visited them on eleven occasions after coming to Australia and that she was concerned about her father’s ill-health as he was suffering from cancer, had a short time to live and was dependent on a government pension.  It had regard to the applicant’s evidence that after the sale of the family home the family would move to the capital and that if she returned home she would live with her family.  The Tribunal referred to evidence from the applicant that she regarded a particular person as part of her family, but gave limited weight to this as the applicant had not discussed her medical condition with this person.  The Tribunal accepted for the purpose of considering the waiver that the breakdown of her spousal relationship was not the applicant’s fault.

4. The Tribunal then referred to the applicant’s evidence that she was afraid the treatment she would receive in her home country was not the same as she was receiving in Australia.  It referred to the fact that she had not made any enquiries in that country, although she had asked a nurse in Australia about treatment there.  It also noted that she had been asked to provide a statement from her treating doctor about the availability of Trizivir in her home country, but that in his report Doctor Chen had not advised of the availability or otherwise of that medication in the applicant’s home country.  It also referred to the applicant’s claims to be afraid she would be given herbal medication and that she did not wish to be a guinea pig for experiments.  It noted that, as far as the applicant knew, HIV treatment was available in her home country.  The Tribunal was satisfied that treatment for HIV was available in the applicant’s home country.  The Tribunal noted there was no adverse evidence in relation to the applicant’s immigration history.

5. The Tribunal concluded that in all the circumstances the grant of the visa would be likely to result in an undue cost to the Australian community.  It stated that it gave weight in particular to the absence of family in Australia, the fact that the applicant had close ties to her family in her home country, the fact that treatment was available for her there and that she would be able to work and live with her family in the capital.  It also had regard to the fact that the support offered by her friends in Australia was offered in the absence of knowledge of her medical condition.  It accepted that the applicant’s relationship with the nominator had broken down through no fault of her own and that she was the victim of domestic violence.  

6. As the Tribunal found the grant of the visa would be likely to result in undue cost to the Australian community it decided that the requirements of clause 4007(1)(c) should not be waived. Therefore the applicant did not meet the requirements of that provision and did not satisfy public interest criterion 4007. Hence it found that she did not meet the criterion in clause 820.233 for the class of visa for which she had applied. The Tribunal affirmed the decision of the delegate.

These proceedings

1. The applicant sought review of the Tribunal decision by application filed in this Court on 3 May 2005.  The matter was listed for hearing on 14 December 2006.  The applicant filed written submissions on 29 November 2006 to which was attached a proposed further amended application on which the applicant sought to rely.  The first respondent filed written submissions that addressed the grounds of review in the proposed further amended application. 

2. However, at the hearing on 14 December 2006 the applicant was represented by counsel other than the counsel who had prepared the further amended application and written submissions.  Counsel for the first respondent contended that the oral submissions made by counsel for the applicant raised issues that were not in the further amended application (and hence had not been addressed in the respondent’s submissions).  It also became apparent that the time allocated for the hearing was not sufficient.  The hearing was adjourned part-heard to 7 March 2007.  Leave was granted to the applicant to file a second further amended application (although counsel for the applicant contended that he was not in fact putting a new case).  Each of the parties was given an opportunity to file further written submissions addressing the further amended application.  The applicant filed further submissions on 1 February 2007 which were said to be supplementary and complementary to the earlier written and oral submissions.  She sought to rely on a second further amended application dated 30 January 2007.  The first respondent filed supplementary submissions on 1 March 2007.  The applicant filed submissions in reply in court on 7 March 2007. 

The legal framework

1. The applicant applied for a partner visa. The only subclass in respect of which claims were made was Subclass 820. The criteria for such a visa include, in subclause 820.223(1), a requirement that at the time of decision the applicant satisfy specified public interest criteria including criterion ‘4007’ which is in Schedule 4 to the Migration Regulations.

2. Item 4007 of Schedule 4 to the Migration Regulations is as follows:

   (1)   The applicant:

   (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 not a person who has a disease or condition to which the following subparagraphs apply:

   (i)    the disease or condition is such that a person who has it would be likely to:

   (A)   require health care or community service  or

   (B)     meet the medical criteria for the provision of a community service;

   during the period of the applicant's proposed stay in Australia;

   (ii)    provision of the health care or community services relating to the disease or condition 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, the applicant has provided such an undertaking.

   (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.

3. Regulation 2.25A of the Migration Regulations relevantly provides:

   (1)     In determining whether an applicant satisfies the criteria for the grant of a visa, the Minister must seek the opinion of a medical officer of the Commonwealth on whether a person (whether the applicant or another person) meets the requirements of paragraph … 4007(1)(a), 4007(1)(b) or 4007(1)(c) of Schedule 4…

   …

   (3)     The Minister is to take the opinion of the medical officer of the Commonwealth on a matter referred to in sub-regulation (1) … to be correct for the purposes of deciding whether a person meets a requirement or satisfies a criterion.

4. It is notable that in MIMA v Seligman (1999) 85 FCR 115 the Full Court of the Federal Court pointed out at [48] – [49] in relation to the process by which a medical opinion is provided in accordance with Regulation 2.25A

   The seeking of an opinion by the Minister takes place “in determining whether an applicant satisfies the criteria for the grant of a visa”.  This recognises the conceptual distinction between ascertaining whether criteria are satisfied and deciding to grant or refuse the visa.  It is the first limb of that two phase process upon which the requirement of reg 2.25A operates.  The defining and limiting attributes of what is sought from the Medical Officer are:

   1.  What is provided must be an opinion.

   2.  The opinion must be that of the Medical Officer of the Commonwealth who provides it. 

   3.  The subject of the opinion must be “whether a person meets the requirements of the applicable paragraph of Schedule 4”. 

   The Minister is required by reg 2.25A(3) to take the opinion to be “correct”. 

   That is subject to three qualifications:

   1.  The opinion must be the opinion of the Medical Officer “on a matter referred to in subreg (1) or (2)”.  The matter referred to in reg 2.25A(1) is whether a person meets the requirements of the relevant paragraph of Sch 4.

   2. The Minister is to take the opinion as correct for the purposes of deciding whether a person meets a requirement or satisfies a criterion. 

   3.  The opinion must address satisfaction of the requirements at the time of the Minister’s decision.

5. Regulation 2.25(1) now specifically refers to the subject of the opinion being “whether a person … meets the requirements of paragraph … 4007(1)(a), 4007(1)(b) or 4007(1)(c) of Schedule 4…” 

6. It was suggested in Seligman (at [49]) that the opinion must address satisfaction of the requirements “at the time of the Minister’s decision” consistent with the fact that the criterion in subclause 820.223(1) must be satisfied at the time of the decision.  This issue is discussed further below. 

7. Their Honours also stated at [66] that the decision-maker “is only entitled and obliged to take that opinion as correct [under reg 2.25A(3)] if it is the opinion of a kind authorised by the regulations and, it may be added, validly so authorised.  If it is not or if it travels beyond the limits of what is authorised, then to act upon it as though it is binding is to act upon a wrong view of the law and to err in the interpretation of the law or its application …”

8. It is also convenient to mention at this stage Bui v MIMA (1999) 85 FCR 134 to which both parties referred in submissions. In that case the Full Court of the Federal Court explained the relationship between the element of “significant cost” in paragraph 4007(1)(c)(ii) and “undue cost” in paragraph 4007(2)(b)(i) as follows (at [46]):

   … There are obviously broad judgments to be made in determining what amounts to “undue cost” and “undue prejudice”.  Reading together the criterion in item 4007(1)(c)(i) and the criterion for waiver in item 4007(2)(b)(i) it is apparent that the occasion for the exercise of the waiver will only arise where it is already established that the cost to Australia, if the visa is granted, is likely to be “significant”.  The Minister will therefore need to be satisfied that a likely “significant” cost would nevertheless not be “undue”.  In the former determination he or she is evidently to be bound by the opinion of a Medical Officer of the Commonwealth. 

9. Their Honours also addressed the scope of the notion “undue cost to the Australian community”, stating (at [47]):

   The evaluative judgment whether the cost to the Australian community or prejudice to others, if the visa is granted, is “undue” may import consideration of compassionate or other circumstances.  It may be to Australia’s benefit in moral or other terms to admit a person even though it could be anticipated that such a person will make some significant calls upon health and community services.  There may be circumstances of a “compelling” character, not included in the “compassionate” category that mandates such an outcome.  But over and above the consideration of the likelihood that cost or prejudice will be “undue” there is the discretionary element of the Ministerial waiver.  And within that discretion compassionate circumstances or the more widely expressed “compelling circumstances” may properly have a part to play.

This application

1. The further amended application filed in Court on 14 December 2006 relied on two grounds: first that the Tribunal fell into jurisdictional error in dealing with the updated reports of Dr Chen of 28 August 2003 and 8 October 2004; and second that the Tribunal applied the wrong test in determining whether the granting of a permanent residence visa to the applicant would be unlikely to result in “undue cost to the Australian community”. 

2. The second further amended application replaced the first ground with four separate grounds and provided particulars in relation to the second ground (which became the fifth ground).

Whether the Tribunal was bound to accept the opinion of the MOC as to lifetime cost to the community

1. Ground one of the second further amended application is that the second respondent fell into jurisdictional error “by holding that it was bound to accept as correct the opinion of the MOC that the lifetime cost to Australian community of the applicant’s condition is $250,000”.

2. The applicant submitted that while the Tribunal had correctly stated that for the purposes of determining whether there was a “significant cost to the Australian community” within the meaning of para 4007(1)(c), regulation 2.25A(3) required that the Minister take the opinion of the MOC to be correct, the Tribunal fell into jurisdictional error by finding that it was bound by regulation 2.25A to accept this opinion as correct for the purposes of determining the issue of “undue cost to the Australian community” within para 4007(2)(b)(i). 

3. It was submitted that in considering the issue of “undue cost” a fresh enquiry must be made to determine whether or not that cost to the Australian community was undue, to meet the “evaluative judgment” required in considering the issue of “undue cost” (see Bui v MIMA at [47]). It was pointed out that such evaluative judgment was broad-ranging and may take into account “compassionate or other circumstances” (Bui at [47]). However it was said that the Tribunal had taken the opinion of the MOC as to the assessment of the cost of lifetime care at $250,000 as binding upon it in the determination of undue cost and hence failed to consider whether the lifetime cost to the Australian community was less than that assessed by the MOC.

4. It was suggested that the source of such error may have been reliance on paragraph 81.2 of Departmental policy (in PAM 3) which stated “The MOC’s opinion [in relation to the estimated cost for health care and community services] must be taken as correct by the [delegate] in considering the waiver under clause 4007(2)”. It was contended that this statement was erroneous, because while the opinion must be taken as correct in the Tribunal’s consideration of whether there was a significant cost, it need not be taken as correct in the consideration of whether there was an undue cost.

5. The applicant submitted that the reports of Dr Chen dated 28 August 2003 and 8 October 2004 raised a real question as to whether the lifetime cost to the Australian community in relation to the applicant was likely to be less than $250,000, as such reports indicated that “it is likely that the applicant will continue to remain in good health”.  This was said to be relevant to whether the grant of the visa would be unlikely to result in “undue cost”, in that a hypothetical lesser assessment may have influenced the decision as to whether or not the applicant represented an “undue cost” to the Australian community. 

6. It was contended for the first respondent that this ground appears to plead particulars intended to establish that the Tribunal erred in the exercise of its jurisdiction by acting on an incorrect principle, being that it considered it was bound by regulation 2.25A(3) to accept the MOC’s estimate of the lifetime cost to the Australian community of the applicant’s condition. 

7. The first respondent submitted first that paragraph 4007(1)(c)(ii) does not require the MOC to consider the specific applicant, but rather a hypothetical person who suffers from the disease or condition of the applicant.  Thus it is said not to involve a prediction of whether the particular applicant will in fact require health or community services at a significant cost to the Australian community (see Imad v MIMA [2001] FCA 1011 per Heerey J at [13]). Nonetheless the MOC is required, where relevant, to ascertain the form or level of the disease or condition the applicant has and not some generic form of the condition (Robinson v MIMIA (2005) 148 FCR 182 at [43].

8. Counsel for the first respondent acknowledged that while the opinion of an MOC in relation to clause 4007(1)(c) and “significant cost” was to be taken to be correct for the purposes of deciding whether a person met a requirement or satisfied a condition (regulation 2.25A(3)), such opinion was only binding if validly made by the MOC (Robinson at [38] and [41]). It was submitted however that in this instance the opinion was validly made and that the Tribunal did not err in taking it to be correct.

9. It was pointed out that the question of the lifetime cost to the Australian community of the applicant’s condition was not a consideration to be found in the Migration Act 1958 (Cth) (the Act) or Regulations but rather was a factor for consideration listed in Departmental guidelines. Insofar as the point was put slightly differently in the applicant’s further written submissions (as an argument that while the MOC’s opinion was binding in relation to the question of significant cost the Tribunal could ignore that assessment in determining undue cost), the first respondent submitted that this argument was both legally and factually flawed, because the reports of Dr Chen did not provide a proper basis for inferring that the MOC’s assessment of costs was not correct and that some other amount should have been considered. There was said to be no proper basis for assuming that the MOC had failed to read the material on the Health Services Australia file or that the MOC had no understanding of the beneficial effects of the anti-retroviral medication, contrary to the apparent underlying assumption of the applicant that the MOC had not taken into account that the applicant was responding well to anti-viral medication and was unlikely to require inpatient care for some years. It was said that this assumed that the MOC had not read the first report of Dr Chen (which had been received by Health Services Australia and which stated that the applicant was well and on medication and had not had any AIDS-defining illnesses) and also that the MOC did not understand that the benefits of anti-retroviral medication could be that the applicant would remain well for an extended period.

1. The first respondent also submitted that insofar as the applicant argued that the Tribunal was not legally bound by the opinion of the MOC as to the amount of the expense in relation to the exercise of discretion as to whether the costs were “undue”, this submission subverted the requirements of item 4007.  It was submitted that the Tribunal was bound to accept the MOC’s opinion that the likely costs for the provision of health care or community services were “significant” and that the applicant therefore failed to meet the prescribed criteria in paragraph 4007(1)(c)(ii) (see Regulation 2.25A(3)).  It was reiterated that it was this fact that triggered the exercise of the discretion under paragraph 4007(2)(b)(i) as to whether this unchallengeable “significant” cost was not “undue”.  It was said that to permit the Tribunal to find that the significant cost was not undue because the Medical Officer gave a substantially incorrect estimate of costs was fundamentally inconsistent with the binding determination which necessitated the exercise of the discretion, being that the costs were significant.  The respondent submitted the amount of those costs was not in issue and that the only question for the Tribunal was whether incurring “significant” costs would be “undue”. 

Reasoning

1. Ground one in the second further amended application is not made out.  Further, for the reasons below, insofar as the argument in relation to this ground suggested a broader basis for the claim of jurisdictional error, no such error is established in the manner contended for by the applicant. 

2. In the opinion of 8 May 2003 (which is the opinion in issue) the MOC did not express an opinion in terms that the “lifetime cost to the Australian community of the applicant’s condition is $250,000.” Rather Dr Phillips considered the requirements of paragraph 4007(1)(c) of Item 4007 in Schedule 4 to the Migration Regulations. In that context Dr Phillips expressed the opinion that the disease or condition of HIV infection was one to which para 4007(1)(c)(ii) applied “regardless of whether or not health care or community services will actually be used in connection with the applicant during the applicant’s proposed stay in Australia”. The opinion continued that: “A person with such a disease or condition would be likely to require health care or community services” or would be likely to meet the medical criteria for the provision of a community service and provision of such care or services relating to the disease or condition “would be likely to result in a ‘significant cost’ to the Australian community” in the area of health care and community services or prejudice access of Australians to health care or community services.

3. In expressing this opinion the MOC referred to the applicant’s condition as a person who was HIV positive and was currently receiving anti-retroviral therapy and stated that the provision of health care “with ongoing antiretroviral medication, specialist care, intermittent income support and hospital admissions” for the period of intended residence “will involve significant cost”.  The MOC provided an estimate “of the costs involved for the provision of this care” at $250,000.  On this basis the MOC stated that the applicant did not meet public interest criterion 4007.

4. On its face this opinion is an opinion of a kind authorised by the Migration Regulations. It did not travel beyond the limits of paragraphs 4007(1)(a), (b) or (c) consistent with reg 2.25A (Seligman at [66]). There is no discussion in the opinion of the factors in paragraph 4007(2) and no reference to the issue of “undue cost”. There is nothing to suggest that the MOC failed to have regard to medical and radiological reports available to the MOC at the time of the opinion (including Dr Chen’s report of 20 May 2002) or that the MOC failed to have regard to the proposed duration of stay in Australia sought by the applicant as an applicant for permanent residence.

5. Hence it is necessary to consider whether the Tribunal erred in its consideration of the MOC opinion. In the findings and reasons part of the decision the Tribunal stated:

   37.    The evidence is that the visa applicant is HIV positive.  The MOC’s opinion is that the visa applicant fails to satisfy paragraph 4007(1)(c) on the basis that she is suffering from a condition that is likely to result in a significant cost to the Australian community in the areas of health care or community services.  The MOC’s opinion is that the lifetime cost to the Australian community is $250,000.  Regulation 2.25A provides that the Tribunal must accept the MOC’s opinion as correct. 

   38.  The criteria in paragraph 4007(1)(c) may be waived if the visa applicant satisfies subclause 4007(2).  In considering whether to waive the requirements of 4007(1)(c) the Tribunal, in this case must consider whether the granting of the visa would be unlikely to result in ‘undue’ cost to the Australian community (subparagraph 4007(2)(b)(i)).

6. Given that the applicant sought permanent residence, that para 4007(1)(b) refers to “the period of the applicant’s proposed stay in Australia” and that the MOC referred to “the period of intended residence”, there was no error in the Tribunal describing the MOC opinion as an opinion in relation to the “lifetime cost” to the community.  It is clear from the whole of paragraph 37 of the Tribunal reasons that it understood that the MOC opinion was in relation to the likelihood of cost to the community in provision of health care or community services in relation to the condition from which the applicant suffered. 

7. More generally, it is clear reading the Tribunal reasons for decision fairly and as a whole (see MIEA v Wu Shan Liang (1996) 185 CLR 259) that in finding that it must accept the MOC’s opinion as correct, the Tribunal was addressing the correctness of that opinion for the purposes of deciding whether the applicant met the requirements of para 4007(1), not para 4007(2).

8. This is clear from the correct statement of the law in the decision, the wording of the opinion itself, the Tribunal’s summary of the delegate’s decision, as well as the Tribunal findings set out above from which it is apparent that the Tribunal understood the distinction between para 4007(1)(c) in relation to which it was bound to accept the MOC’s opinion as correct (reg 2.25A(3)) and para 4007(2) and the fact that that criterion could be waived if the Tribunal was satisfied of the matters in para 4007(2). 

9. In determining the issue of “undue cost” in para 4007(2) the Tribunal did not treat the opinion of the MOC as binding in a manner which demonstrates jurisdictional error.  Rather, it understood that the opinion was binding as to whether there was a likely “significant cost” for the period of the proposed stay in terms of para 4007(1)(c).  The Tribunal was bound to accept the MOC’s opinion that the likely costs were “significant” and that the applicant therefore failed to meet the criteria in para 4007(1)(c).  It was then for the Tribunal to consider, as it did, whether despite such likely significant costs for care in relation to such a condition (in relation to which the only evidence of quantification before the Tribunal was the MOC estimate of $250,000) it was satisfied that the grant of the visa to the applicant would be unlikely to result in undue cost to the Australian community.  In addressing the waiver it was open to the Tribunal to consider whether it was satisfied that the applicant was a person who had a condition such that provision of health care or community services in relation to the disease or condition would not be likely to result in “undue” cost as specified in para 4007(2).  It was not open to the Tribunal to ignore the MOC’s assessment of the amount of the likely cost of provision of care for such a condition as significant in determining whether the costs in relation to the applicant (if granted the visa) was unlikely to be undue.  Paras 4007(1) and (2) deal with different issues, but, as stated in Bui at [46], the occasion for exercise of waiver “will only arise where it is already established that the cost to Australia, if the visa is granted, is likely to be ‘significant’”.  According to the Full Court (at [46]) the Tribunal “will therefore need to be satisfied that a likely ‘significant’ cost would nevertheless not be ‘undue’”. 

10. This interpretation of the relationship between “significant cost” and “undue cost” is binding on this Court.  It must be applied in the context of the provisions in question.  It may be open to a decision-maker to find in particular circumstances that the amount of likely significant cost for care of “a person” with the condition in issue was in fact unlikely to be incurred in relation to the particular applicant because of evidence as to actual likely costs in relation to that person (and hence take this into account in determining whether the grant of the visa to that person would be unlikely to result in undue cost).  On this basis if a claim to that effect was raised expressly or squarely on the material before the Tribunal, it would err if it failed to address such an issue (see NABE v MIMIA (No 2) (2004) 219 ALR 27). However this is not such a case.

11. The fact that medical reports were provided to the Tribunal which post-dated the MOC opinion (which the applicant seems to contend may have led to a different view being taken of the likely costs to be incurred in health care or community services relating to the condition in issue), does not mean that in this case the Tribunal erred in not expressing its own view of the actual cost for the purposes of the para 4007(2) waiver provision or in failing to consider a hypothetical assessment of costs of less than $250,000. 

12. First, the Tribunal was bound to take the MOC opinion that the provision of the health care etc in relation to the condition “would be likely to result in a significant cost to the Australian community…” as correct for the purposes of deciding whether the applicant met the requirements or criteria in para 4007(1). 

13. An issue does arise because of the length of time between the opinion and the Tribunal decision.  In Seligman the Full Court of the Federal Court suggested that the MOC opinion must address satisfaction of the requirements (in this case of para 4007(1)(c)) “at the time of the Minister’s decision”, consistent with the fact that subclause 820.223(1) is to be met at the time of decision. 

14. No issue was taken (as such) with the fact that the MOC opinion was dated 8 May 2003, while the Tribunal decision was not made until 15 April 2005.  The circumstances in which that occurred are set out above.  Critically, however, the applicant was given an opportunity (by letter of 27 March 2004) to elect to obtain a new medical assessment from a Review Medical Officer of the Commonwealth.  On legal advice she chose not to do so.  The Tribunal was informed of this by letter of 7 April 2004.  Further, by letter to the Tribunal of 28 April 2004 the then solicitor for the applicant conceded “that she does not meet the criteria in Schedule 4007(1) of the Migration Regulations in that the Medical Officer of the Commonwealth had made the finding that the grant of a visa to her would lead to a significant cost ($250,000)”.

15. Thereafter the applicant and her adviser addressed the issue of waiver.  It was put to the Tribunal that there was no certainty that the estimated likely costs of care of $250,000 would actually be incurred in relation to the applicant.  This general submission did not compel the Tribunal itself to determine the quantification of likely costs.  The Tribunal recognised that an absence of certainty as to actual expenditure may be relevant to the issue of whether the costs in relation to the applicant were likely to be “undue” (for example the availability of family support may be such that some costs of care may not be incurred or there may be relevant evidence in relation to the potential for the applicant’s health to deteriorate with a consequential effect on likely actual costs of care for the applicant).  However the reports of Dr Chen do not provide a basis for inferring that the MOC’s assessment that the condition was likely to result in a “significant” cost estimated to be $250,000 was not relevant in relation to the applicant’s particular circumstances, such that the Tribunal erred in failing to make an inquiry and consider some other amount in determining whether it was satisfied the grant of the visa would be unlikely to result in undue cost to the Australian community. 

16. As was pointed out by counsel for the first respondent, the reports of Dr Chen did not express an opinion in any way on the costs that would be involved for the provision of care to the applicant.  There is no basis upon which the Tribunal (or the Court) could infer that Dr Chen considered that the costs of the applicant’s anti-retroviral medication, the monitoring of that medication, any other specialist care that would be provided, and any care later in life for any AIDS-related illness for a person with the applicant’s condition or for the applicant herself would be significantly less than $250,000 or that Dr Chen’s reports put in issue the assessment of costs made by the MOC.  These reports only went so far as to state that hospital treatment would not be necessary in the medium term, whereas the assessment by the MOC addressed the likely cost for all forms of care (and not just hospital treatment) for the long term (that is, lifetime), of the applicant’s intended period of residence for the condition suffered by the applicant. 

17. In the circumstances of this case, having regard to the applicant’s concession and the fact that the only issue for the Tribunal was waiver, even though Dr Chen’s reports provided a history of treatment and progress of the applicant’s condition and showed an improvement and a good prognosis based on ongoing medication (with “inpatient management unlikely to be necessary for some years”), the claim that such evidence could possibly have influenced an MOC’s assessment of “significant cost” had it been before an MOC for the purposes of a reassessment or review and that, in turn, an amended assessment of the figure for care in relation to the condition by an MOC could possibly have affected the Tribunal’s determination of “undue cost” does not establish jurisdictional error on the part of the Tribunal in its reliance on the MOC opinion before it in relation to “significant cost” or in its failure to conduct an enquiry into the actual cost going beyond the material put before it by the applicant.

18. In submissions, the applicant argued that it was not suggested that the Tribunal could ignore the MOC’s opinion in the determination of undue costs, but rather that in determining “undue” costs the Tribunal was not bound (as it was said to have held itself to be) by the MOC’s assessment of $250,000 as the lifetime cost of providing care to the applicant. 

19. It was submitted that the Tribunal was not obliged to accept that the MOC’s opinion was valid, because a real issue arose as to whether the MOC opinion was validly reached and therefore whether the Tribunal erred in relying on that opinion in determining undue cost (see Robinson v MIMIA [2005] FCA 1626). It was also suggested that as undue cost was an issue discrete from the question of significant cost, there was no possible breach of regulation 2.25A(3) of the Migration Regulations if the Tribunal chose not to accept the opinion as correct in this context.

20. The argument may have been framed in this way in recognition of the fact that the applicant had conceded that she did not meet the criteria in para 4007(1), in that the MOC had made the finding that the grant of a visa to her would lead to a significant cost ($250,000) (although the MOC opinion was in fact in relation to the disease or condition). 

21. However Robinson v MIMIA does not assist the applicant.  In that case an issue arose as to whether the MOC’s medical opinion was unauthorised (see Seligman at [66]), so that the Tribunal erred in determining whether to treat it as correct. Siopis J held in relation to Item 4005 of Schedule 4 to the Regulations (which relevantly is in the same terms as para 4007(1) but does not include provision for a waiver such as para 4007(2)) that on a proper construction this criterion “requires the MOC to ascertain the form or level of condition suffered by the applicant in question and then to apply the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition.  It is not the case that the MOC is to proceed to make the assessment at a higher level of generality by reference to a generic form of the condition.” (at [43]).

22. In this case the MOC considered the form or level of condition suffered by the applicant in question, insofar as that was apparent on the material before the MOC at that time.  The MOC recognised that the condition was that of a person who was HIV positive receiving anti-retroviral therapy.  The fact that later medical reports not before the MOC may (or may not) have led to a different assessment of the form or level of the condition does not demonstrate that the MOC applied an incorrect test so that the opinion was “unauthorised”, or that the Tribunal erred in accepting the opinion as correct on the issue of likely significant cost in relation to provision of care relating to the condition. 

23. Hence, in contrast to the situation considered in Robinson, it has not been established that the Tribunal erred as to the appropriate test to be applied in determining whether to accept the opinion of the MOC as correct. 

24. More generally, in considering the issue of “undue” cost the Tribunal did not treat the assessment under para 4007(1) of likely “significant” cost as determinative of the issue of “undue cost” under para 4007(2).  It understood that a range of matters was to be taken into account in considering waiver and engaged in the broad-ranging “evaluative judgment”, taking into account compassionate and other circumstances in determining whether the cost was “undue” in accordance with Bui. 

25. Hence the Tribunal addressed issues such as compelling circumstances, available private care and support and other factors including (consistent with policy) the overall lifetime change to Australian public funds.  In that context the Tribunal stated “The lifetime change to the Australian community is assessed as being $250,000 by the MOC.  The MOC’s opinion is that this is a significant cost”.  This is an accurate description of the MOC’s opinion.  The Tribunal then considered other factors (such as availability of funds to the applicant to meet future costs) in determining the relevance of this factor to the issue of “undue” cost. 

26. As indicated above, Dr Chen’s reports are not such that the Tribunal was required to speculate in the manner contended as to whether the actual lifetime costs were likely to be less than $250,000 and for this reason not “undue”.  Dr Chen did not address the issue of costs as such, either generally or in relation to the specific issue of the improvement in the applicant’s condition since diagnosis and the first report.  In these circumstances it is not necessary to determine whether the Tribunal could have taken into account as against an MOC assessment of likely significant cost, a lesser assessment of likely cost in determining whether the cost was undue.  The Tribunal did take into account the “qualitative” aspects of Dr Chen’s reports in assessing the potential for the applicant’s health to deteriorate, such as the evidence of her above-average response to treatment, his opinion that there was little chance of her developing AIDs within the foreseeable future, that in-patient therapy was “unlikely to be necessary for some years”, and also that “she has plenty of treatment options available should she develop viral resistance” and whether, having regard to such matters, it was satisfied that the granting of the visa would be unlikely to result in “undue” cost. 

1. No jurisdictional error is established on this basis. 

Whether the Tribunal erred in failing to forward Dr Chen’s reports to the MOC

1. Ground two of the second further amended application is as follows:

   The second respondent fell into jurisdictional error in dealing with the updated reports of Dr Chen dated 28 August 2003 and 8 October 2004 by failing to forward those reports of Dr Chen to the Medical Officer of the Commonwealth (MOC) for updated opinion as to whether the provision of the health care or community services relating to the applicant’s disease or condition would be likely to “result in a significant cost to the Australian community” as per clause 4007(2)(b)(a) of Schedule 4 of the Migration Regulations 1994.

2. It was acknowledged for the applicant that as her former solicitor had made a concession to the Tribunal that she did not meet the criteria in clause 4007(1) of Schedule 4 to the Migration Regulations, she could not now contend that there was a jurisdictional error in relation to the MOC’s opinion concerning “significant cost”.

3. The applicant submitted, however, that when the Tribunal relied upon the MOC’s opinion in the determination of “undue cost”, it should have satisfied itself that the MOC opinion was validly reached and that failure to do so had resulted in a jurisdictional error the Tribunal failed to conduct the “evaluative judgment” required by Bui v MIMA (1999) 85 FCR 134.

4. It was pointed out that there is authority to the effect that while the opinion of the MOC is binding as to the issue of “significant cost” that opinion is only binding if it was validly reached (MIMA v Seligman (1999) 85 FCR 115 at [66]), so that if the correct test of “significant cost” was not applied the opinion of the MOC was not valid.

5. As discussed in relation to ground one, the correct test to be applied by the MOC to reach a valid opinion was said to have been stated by Siopis J in Robinson v MIMIA (2005) 148 FCR 182 at [43] as follows:

   A proper construction of public interest criterion or clause 4005 of the Regulations requires the MOC to ascertain the form or level of the condition suffered by the applicant in question and then to apply the statutory criteria by reference to a hypothetical  person who suffers from that form or level of the condition.

6. It was submitted that such a test necessarily requires that the first limb of the enquiry as to the form or level of condition suffered by the applicant in question be answered by review of all available material (see Blair v MIMA [2001] FCA 1014 and Robinson at [52]). It was argued that in this case the first limb of the test as identified in Robinson could not have been applied by the MOC to the determination of “significant cost” in the absence of the reports of Dr Chen dated 28 August 2003 and 8 October 2004. 

7. It was noted that in formulating the test to be applied by an MOC in Robinson, Siopis J had rejected an alternative and broader test proposed by Finkelstein J in X v MIMIA [2005] FCA 429 at [14] – [15] based on an assessment of a “hypothetical person” suffering from the same disease or condition as the applicant.  The decision of Finkelstein J in X had been overruled on appeal by the Full Court on the issue of classification of health care (see MIMIA v X [2005] FCAFC 209). Attention was nonetheless drawn to the remarks by Finkelstein J at [11] as to the tasks of the MOC:

   It is fair to say that what must be provided is an opinion which will be based on an evaluation of a body of evidence.  It is obvious also that the evaluation must be undertaken with a proper understanding of what is required.  However it is not necessarily a requirement of Reg 2.25A that the evaluation be per se rational, reasonable or free from mistakes of fact.  On the other hand, if the opinion is irrational or unreasonable or is seriously mistaken about the facts then it is likely that the Medical Officer has fallen into error of a jurisdictional kind, even if the error cannot be identified with precision.

8. It was said that if one applied such observations, then a question arose as to whether an MOC opinion not be seriously mistaken about facts if the MOC was not provided with all available and relevant medical evidence.  The applicant submitted that if there was a risk of such a mistake, the opinion should not be relied upon in determination of the issue of “undue cost”.

9. Hence it was said that by failing to forward the reports of Dr Chen dated 28 August 2003 and 8 October 2004 to the MOC for an updated opinion as to significant cost in circumstances where the opinion of the MOC may not have been validly reached, the Tribunal fell into jurisdictional error in failing to properly conduct the “evaluative judgment” required of it by Bui.

10. The first respondent submitted that this ground appeared to plead particulars to establish that the Tribunal erred in failing to exercise its investigative powers to put the alleged costs issues raised by Dr Chen to the MOC.  It was suggested that there was some confusion in an argument that while the applicant accepted that she could not now contend that there was error in the MOC’s opinion, the Tribunal should nevertheless have investigated whether there was such an error as part of the Tribunal’s assessment of “undue costs”.  It was reiterated that the applicant must accept that the MOC opinion was valid as to “significant costs”.  In these circumstances it was said that regulation 2.25A(3) would bind the Tribunal to accept that opinion.  It was submitted the Tribunal would be in breach of the regulations if it acted upon any basis inconsistent with that opinion for the purposes of the determination of whether those accepted “significant” costs were “undue”.  In particular as the Tribunal was bound to accept that there were significant costs of $250,000, it was said that it would have fallen into error had it then said that the assessment was wrong and that for that reason the costs were not “undue”. 

11. It was pointed out that cases relied on by the applicant, in particular Seligman and Robinson, were cases in which the applicants had explicitly challenged MOC decisions before the delegate and the Tribunal respectively.  In those cases the applicants had succeeded because it had been held that the delegate and the Tribunal were acting upon a wrong principle to consider themselves bound under regulation 2.25A(3) where the MOC’s decision was not validly reached.  However it was submitted that the corollary was that it could not be an error for the Tribunal to consider itself bound by an MOC assessment which the applicant had admitted she must accept as valid.  It was said that this alone was sufficient to dispose of the applicant’s case. 

12. In any event it was said that there was no error in the Tribunal not using its investigative powers to request an updated report from the MOC, as it was not a condition to the exercise of the MRT’s power that it did so (see MIMIA v SGLB (2004) 207 ALR 12 per Gummow and Hayne JJ at [43]).

13. Further, it was said that insofar as it was impliedly suggested that the Tribunal should have considered this issue despite the fact that the applicant made no such request and had expressly accepted the MOC decision as correct, NABE v MIMIA (No 2) (2004) 219 ALR 27at [58] – [62] made it clear that the Tribunal would only be obliged to do so if the issue arose “squarely” on the material before it.  It was said that as the reports of Dr Chen in no way purported to question any part of the MOC’s assessment, the issue never arose in a manner that could have required the Tribunal to consider it. 

14. The first respondent also submitted that insofar as the applicant argued that the MOC had failed to ascertain the “form or level of the applicant’s condition” and hence fell into the error identified in Robinson, this argument was contrary to the admission that the applicant must accept as valid the MOC decision on the question of “significant costs”.  It also assumed that there were various “forms or levels” of HIV and, if so, impliedly argued that the “available medical and radiological reports” to which the MOC specifically had regard (including that the applicant was diagnosed with HIV in December 2000, had not had any AIDS-defining illness and was remaining well on her anti-retroviral medication) did not correctly state or identify the “form or level” of her condition.  It was said that there was no evidence in this case, and certainly nothing in the reports of Dr Chen, to support such a proposition. 

15. The applicant claimed that the argument that the MOC failed to ascertain the form or level of the applicant’s condition and fell into error in the manner identified by Robinson was not addressed by the respondent’s submissions, as a they ignored the fact that undue cost was a discrete issue from significant cost and required an “evaluative judgment” of the facts of the case.  It was reiterated that Dr Chen’s reports were said to evidence an improvement in the applicant’s condition.  It was also submitted that SGLB could be distinguished because it involved a different statutory regime which did not incorporate a consideration of “undue cost” and where the issue was whether the Refugee Review Tribunal should have obtained evidence of a psychiatric condition.  In contrast in this case it was said that the evidence was available, but was not forwarded to an MOC for an updated assessment.  Moreover the issue in SGLB involved consideration of current accurate medical evidence from which a finding of psychiatric illness could be drawn.

16. Finally the applicant reiterated that the evidence of improvement in the applicant’s condition after 20 May 2002 was raised “squarely” on the material before the Tribunal (see NABE) and that such evidence could have materially affected the MOC opinion.

Reasoning

1. Aspects of this ground have been addressed in relation to ground one. 

2. First, as set out above, it has not been established that the MOC opinion was not authorised by the Migration Regulations (or validly reached). In particular it has not been established that the correct test was not used. The preponderance of authority is as Siopis J stated in Robinson at [43], but it has not been established that the MOC failed to address the form or level of the condition of the applicant on the material before the MOC at the time of the opinion.  Given the applicant’s concession to the Tribunal (as at 28 April 2004) that she did not meet the criteria in para 4007(1) and her rejection of the proferred opportunity for a review medical assessment, no error is established in the Tribunal accepting the MOC’s opinion as correct in accordance with reg 2.25A.

3. The suggestion that the MOC opinion was seriously mistaken about the facts is not made out.  Subsequent medical reports do not establish error in the approach of the MOC based on the material before the MOC at the time of the opinion. 

4. The applicant declined the opportunity for a review of the MOC opinion.  The Tribunal was under no obligation to initiate a further review based on subsequent medical reports provided by the applicant, at least where there had been no request for such a review or any contention that the opinion of the MOC as to the requirements of para 4007(1) should be revisited (see SGLB). 

5. It was not necessary as part of the “evaluative judgment” by the Tribunal in relation to waiver and the assessment of “undue costs”, for the Tribunal in the circumstances of this case to obtain an updated report.  The reports of Dr Chen were not such as to raise an issue as to the accuracy of the MOC assessment in the manner contended for by the applicant despite the absence of any request for a further medical opinion.  Nor were these circumstances in which the Tribunal was under an obligation to use its investigative powers to obtain a further opinion as to likely significant costs within para 4007(1).  The Tribunal did not fail to have regard to an issue raised “squarely” on the material before it (see NABE). 

6. Underlying the applicant’s claims in these proceedings is the perception that had the MOC updated the report of 8 May 2003 (or had there been a review) in light of the contents of Dr Chen’s reports of 28 August 2003 and 8 October 2004, the “result” of the Tribunal review may have been different. One simply does not know if that is so. It is, however, of concern that the assessment under para 4007(1) preceded the Tribunal decision of 15 April 2005 by nearly two years, despite the fact that the criterion in Item 4007 of Schedule 4 to the Migration Regulations is a criterion which is to be met (and hence assessed) at the time of decision (see clause 820.223 of Schedule 2 to the Regulations).

7. However the applicant’s then solicitors not only conceded (on 28 April 2004, that is after the date of Dr Chen’s report of 28 August 2003) that the applicant did not meet the criteria in para 4007(1).  The offer of an opportunity to obtain a new medical assessment by a Review Medical Officer had already been rejected (on 7 April 2004).

8. Further, despite Dr Chen’s subsequent and, it can be said, increasingly positive prognosis of 8 October 2004, at no time did the applicant (or her solicitors) seek a reconsideration by the MOC or a review of the opinion.  There was no suggestion, for example, that the improved prognosis was such that the MOC’s opinion was no longer correct or that the MOC’s opinion ought to be modified or at least revisited in response to a change in the form and level of the condition in issue.  The limited focus of Dr Chen’s reports is discussed in relation to ground one.

9. In all the circumstances there was no jurisdictional error in the Tribunal proceeding as it did to the question of waiver without forwarding Dr Chen’s reports to the MOC for an updated opinion under para 4007(1) on the basis that it was “already established that the cost to Australia, if the visa [was] granted, [was] likely to be “significant” (Bui at [46]) and that the Tribunal needed to be satisfied that “a likely ‘significant’ cost will nevertheless not be ‘undue’” (ibid).

10. In that context it is also relevant to note that, as the Full Court of the Federal Court observed in Bui at [47], “over and above the consideration of the likelihood that cost or prejudice will be ‘undue’ there is the discretionary element of the … waiver”.  The Tribunal understood the distinction between “significant” cost and the assessment of likely “undue” cost in the context of exercising a discretion as to whether the requirements of para 4007(1)(c) should be waived.  It has not been established that the Tribunal fell into jurisdictional error in its assessment of “undue” cost by failing to forward the reports of Dr Chen to the MOC for an updated opinion of likely “significant” cost.

“Undue cost” issues

1. Grounds three and four of the second further amended application are addressed together in submissions for the applicant.  They are:

   3.  In considering whether the granting of a visa would result in “undue cost” to the Australian community, the second respondent fell into jurisdictional error by relying on the reports of the MOC dated 7 June 2002 and 8 May 2003 when considering the circumstance of the “potential for the applicant’s state of health to deteriorate” when the reports of the MOC had not been updated by reference to the reports of Dr Chen dated 28 August 2003 and 8 October 2004. 

2. Ground four is as follows:

   In considering whether the granting of a visa would result in “undue cost” to the Australian community, the second respondent fell into jurisdictional error by relying on the reports of the MOC dated 7 June 2002 and 8 May 2003 in considering the circumstance of the “overall lifetime (or lesser period according to the intended of the length of stay) charge to the public funds” when the reports of the MOC had not been updated by reference to the reports of Dr Chen dated 28 August 2003 and 8 October 2004. 

3. Thus it was submitted that the Tribunal fell into jurisdictional error by relying on the MOC opinion to determine two factors relevant in the exercise of the discretion as to whether or not to exercise the waiver under clause 4007(2)(b)(1) and the issue of “undue cost”. It was said that by relying on the opinion of the MOC when it had not been updated by reference to the reports of Dr Chen the Tribunal uncritically accepted the opinion of the MOC and hence failed to properly conduct the “evaluative judgment” required of it by Bui.  In particular it was said that in determining the potential for the applicant’s state of health to deteriorate (ground three) the Tribunal had accepted without equivocation the MOC’s opinion that the applicant suffered a condition that will “incur a significant cost to the Australian community”.  It was reiterated that this opinion was provided without benefit of the later reports of Dr Chen which evidenced an improvement in the applicant’s condition, in particular the report of 8 October 2004 in which Dr Chen expressed the opinion that the applicant’s outlook “is very good”.  It was said that to rely on the opinion of the MOC when the applicant’s health had improved for the better and where that improvement was not drawn to the MOC’s attention, was a jurisdictional error in the determination of “undue cost” consisting of a failure to properly conduct the evaluative judgment required by Bui.

4. Similarly, it was said that in determining the “overall lifetime charge” to Australian public funds the Tribunal had accepted the MOC’s assessment of the lifetime cost to the Australian community at $250,000.  It was noted that this assessment by Dr Phillips dated 8 May 2003 was based on the combined costs of “ongoing retroviral medication, specialist care, intermittent income support and hospital admissions” and was provided without benefit of the report of Dr Chen of 28 August 2003 which stated, in particular, that the applicant was using the one drug combination, had a good prognosis and only required outpatient visits for blood tests.  Moreover Dr Phillips did not have the benefit of the report of October 2004 which stated that the applicant’s outlook was very good “with very little chance of AIDS developing in the foreseeable future”.

5. It was submitted that had the reports of Dr Chen been sent for review by an MOC, the MOC’s opinion as to the lifetime cost to the Australian community of the applicant’s condition may have been different.  It was said that hypothetically the lifetime cost may have been assessed at a much lesser figure that may have materially affected the assessment of undue cost and that for the Tribunal to rely on the opinion of the MOC as to the assessment of “overall lifetime charge” at $250,000 when the applicant’s health had improved for the better and that improvement was not drawn to the MOC’s attention was a jurisdictional error in the determination of “undue cost”, again being a failure to properly conduct the evaluative judgment required by Bui.

6. Ground three was said by counsel for the first respondent to appear to allege that the Tribunal took into account irrelevant considerations or failed to take into account relevant considerations in determining the “potential for the applicant’s state of health to deteriorate” by relying upon the MOC report which did not take into account Dr Chen’s reports.  

7. First it was pointed out that the issue of the “potential for the applicant’s state of health to deteriorate” was not a legislative criterion, but rather was a factor suggested by Departmental guidelines.  As Shepherd J, with whom Beaumont and Burchett JJ agreed, stated in MIEA v Conyngham (1986) 68 ALR 441 at 541:

   … there is no ground for elevating the guidelines here to the status of law.  … the guidelines themselves confer no rights.  They operate only to indicate to those administering the Act and to those who might be concerned to apply for [visa] the manner in which the application … would usually be dealt with.

8. The first respondent submitted that accordingly this ground could not establish a failure to take into account a consideration made compulsorily relevant by the Act or Regulations in the sense considered in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 and MIMA v Yusuf (2001) 206 CLR 323 at [73] and [74]. Rather it was said to amount to an impermissible challenge to the weight accorded to items of evidence before the Tribunal.

1. It was also said that considerations relevant to the question of whether the costs would be “undue” had been held to be extremely broad and discretionary (as stated by Smith FM in Yavas v MIMA (2006) 229 ALR 548 at [14] – [15]). His Honour referred to the “fluidity” of the concept of “undue” and to the well-established principle (see Lord Brighton in Puhlhofer v Hillingdon London Borough Council [1986] AC 484 at 518 referred to by Gleeson CJ and McHugh J in MIMAv Eshetu (1999) 197 CLR 611 at 627):

   Where the existence or the non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the Court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely.

Reasoning

1. First, the Tribunal did not rely on the 7 June 2002 MOC report.  It is clear from the whole of its decision that it referred to the opinion of Dr Phillips dated 8 May 2003   Further, as the first respondent submitted, it is apparent that in determining the potential for the applicant’s state of health to deteriorate (one of the factors the Tribunal took into account in considering the waiver), the Tribunal had regard to the reports of Dr Chen and noted his positive forecast in the medium term.  Hence, even at the factual level, ground three cannot be sustained. 

2. The Tribunal took into account both the reports of Dr Chen and the opinion of the MOC as to “significant cost” in assessing the relevance of the potential for the applicant’s state of health to deteriorate.  As discussed above, it did not err in a manner constituting jurisdictional error err in so doing.  It has not been established that the Tribunal fell into jurisdictional error in relying on the MOC “unupdated” opinion in relation to likely significant cost in light of the applicant’s concession that she did not meet para 4007(1) in circumstances where in assessing “undue” cost it also had before it, and took account, Dr Chen’s later reports. 

3. More generally it has not been established the Tribunal took into account irrelevant considerations (and see Yavas as to review of the exercise of a discretion by a body such as the Tribunal). 

4. Similarly, ground four is not established.  Issues relevant to this ground are discussed above.  Insofar as it involves an allegation that the Tribunal took into account irrelevant considerations or failed to take into account relevant considerations by determining the “overall lifetime (or lesser period according to the intended length of the stay) charge to the public funds” by relying on the MOC report which did not take into account Dr Chen’s later reports, there was no evidence before the Tribunal about the lifetime charge to the public funds except the report of the MOC.  The reports of Dr Chen did not to express an opinion on this issue, so that it could not be said to be unreasonable, let alone a jurisdictional error, for the Tribunal to consider the MOC report in that respect. 

5. The Tribunal did not fail to conduct the “evaluative judgment” referred to in Bui.  In so doing, it took into account Dr Chen’s reports.  The weight to be given to particular items of evidence was a matter for the Tribunal.  As elaborated on in relation to ground two, it has not been established that the Tribunal fell into jurisdictional error in relying on the MOC report when it had not been updated in all the circumstances of this case.  

Whether the Tribunal applied the wrong test in relation to “undue cost to the Australian community”

1. The final ground in the second further amended application is that the Tribunal applied the wrong test in determining whether granting a permanent residence visa would be unlikely to result in “undue cost to the Australian community”.  The particulars of this ground are that the Tribunal considered factors extraneous to the “cost to the Australian community”, including the applicant’s capacity to find work in the country of origin, the location and circumstances of family members of the applicant and the sponsor, the merits of the case, and the availability of treatment in the country of origin.  It was submitted that the Tribunal had taken into account matters that were irrelevant to cost to the Australian community, such as the fact that the applicant would be able to work in her home country, that treatment was available for her in her home country and that she would be able to live with her family in the capital city of that country. 

2. It was argued that Yavas did not provide authority for a proposition that the factors to be taken into account are unfettered or unconstrained.  It was contended that in Yavas Smith FM did not finally determine the limits of the scope of enquiry and what constituted relevant factors to be taken into account in determining “undue costs”. 

3. The applicant submitted that while the words “undue cost” did require broad-ranging enquiry, they were adjectival and therefore necessarily limited the enquiry to consideration of costs “to the Australian community” so that costs to the country of origin, including the applicant’s capacity to gain employment and the availability of health care for her condition should not be relevant factors for consideration. 

4. The first respondent submitted that ground five alleged that the Tribunal applied the wrong test, but then gave particulars which appeared to allege that the Tribunal took into account irrelevant considerations by having regard to the capacity of the applicant to find work in her own country, the location and circumstances of her family members, the merits of the case and the availability of treatment in her own country. 

5. It was pointed out for the first respondent that while the applicant alleged that such factors were irrelevant, these were factors set out in the Departmental guidelines.  It was observed that on the one hand the applicant alleged (in grounds three and four) that a failure to properly consider criteria in the guidelines was a jurisdictional error but on the other hand claimed (in ground five) that taking the criteria in the guidelines into account was a jurisdictional error.

Reasoning

1. As the first respondent submitted, for the reasons given by Smith FM in Yavas, the type of matters to which the Tribunal had regard were within the broad discretionary considerations to be taken into account in determining whether the costs were “undue”.  It has not been established that consideration of such factors demonstrated any error of law in the Tribunal’s interpretation of item 4007(2).  It is clear from Bui (and Yavas) that consideration of the question of “undue” costs can include consideration of questions of “compelling” or “compassionate” circumstances.   Compassion is defined by the Oxford English Dictionary as “the feeling or emotion, when a person is moved by the suffering or distress of another, and by the desire to relieve it; pity that inclines one to despair or to succour”.  In determining whether the applicant would reasonably experience distress or suffering by the refusal of the visa, it was clearly relevant to consider whether that applicant had an economic future, family or other support or treatment available in her home country. 

2. It is also important to note that para 4007(2) is not concerned simply with a quantification of costs but rather with a broader assessment of whether, despite the fact that the condition is such as to be likely to result in a “significant” cost, the grant of the visa would be unlikely to result in “undue” cost and the criterion should be waived. 

3. It was open to the Tribunal to consider factors apart from actual cost to the Australian community, including the situation in the applicant’s home country as part of a consideration of compassionate or compelling circumstances.  No jurisdictional error is established on this basis. 

4. As no jurisdictional error has been established the application must be dismissed. 

I certify that the preceding one hundred and thirty-two (132) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  11 April 2007