Blair v Minister for Immigration and Multicultural Affairs
[2001] FCA 1014
•31 JULY 2001
FEDERAL COURT OF AUSTRALIA
Blair v Minister for Immigration & Multicultural Affairs [2001] FCA 1014ADMINISTRATIVE LAW – IMMIGRATION LAW – grant of visa – Public Interest Criteria in Item 4005 of Schedule 4 to Migration Regulations – whether health criteria satisfied – provision of opinion by Medical Officer to the Migration Review Tribunal – Minister required by sub-reg 2.25A(3) to take opinion to be “correct” in deciding whether person satisfies the criteria – whether Medical Officer’s opinion vitiated by legal error – whether Tribunal erred in taking such opinion to be correct.
Migration Act 1958 (Cth) ss 29, 31, 60, 65, 476
Migration Regulations 1994 reg 2.25A(3), Schedule 4 Item 4005(c)Minister for Immigration and Multicultural Affairs v Seligman [1999] 85 FCR 115 applied
DAVID THOMAS BLAIR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
W 196 of 2001
CARR J
31 JULY 2001
PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
W 196 OF 2001
BETWEEN:
DAVID THOMAS BLAIR
ApplicantAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RespondentJUDGE:
CARR J
DATE OF ORDER:
31 JULY 2001
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicant pay the respondent’s costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
W 196 OF 2001
BETWEEN:
DAVID THOMAS BLAIR
ApplicantAND:
MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS
Respondent
JUDGE:
CARR J
DATE:
31 JULY 2001
PLACE:
PERTH
REASONS FOR JUDGMENT
INTRODUCTION
This is an application brought pursuant to s 476 of the Migration Act 1958 (Cth) (“the Act”) to review a decision of the Migration Review Tribunal, made on 26 April 2001, refusing an application by the applicant’s sister for a Former Resident (Migrant) (Class AR) visa lodged by her on 24 March 1998. The primary visa applicant, Mrs Hilary Lorna Courey (whom I shall call “the visa applicant”), a national of the United Kingdom, migrated at the age of seven with her family to Australia in 1956. On 18 June 1966 the visa applicant married Mr Donald Ernest Irving in South Australia. In February 1970 the visa applicant and her husband left Australia for Canada. There they had two children who were born in 1978 and 1980.
Mr Irving died in a Canadian hospital in 1985. The visa applicant then wanted to return to Australia where she had (and still has) an extensive family of siblings (fourteen brothers and sisters). Her young children did not wish to leave Canada, so the applicant, on professional advice, deferred the planned return to Australia. On 29 August 1987 the visa applicant married Mr David James Courey in Ontario, Canada. On 15 January 1989 their son, Michael James Courey was born in Canada.
The visa application was made on behalf of the visa applicant, her husband, the daughter of her first marriage and Michael Courey. The visa applicant has satisfied what are known as the “primary criteria” for the visa. The issue for determination by the respondent’s delegate, and subsequently by the Tribunal, was whether the relevant secondary criteria were satisfied so far as Michael Courey was concerned. It is common ground that Michael Courey has Down’s Syndrome with a mild intellectual disability.
FACTUAL AND PROCEDURAL BACKGROUND
The visa application was accompanied by a medical examination report form in relation to Michael Courey which revealed that he had Down’s Syndrome, an IQ of 80 and that he was taking medication for hypothyroidism. The report also noted a hearing problem for which he required a hearing aid.
On 20 March 1998 the visa applicant included the following in a statement to the respondent’s department:
“My youngest child has Down Syndrome. We feel he will not become a burden on Australian society. He is (sic) development, mentally and physically is advancing at rate (sic) that indicates he will eventually be able to hold a job and support himself. He is currently attending a school with normal children. We have investigated schooling in Australia. He will be attending a private school in Adelaide with normal children. We have the means to support him and will continue to do so as long as required. Also, he will inherit a substantial sum on the passing of his grandmother in Canada. Because of the size and closeknit nature of his extended family in Australia, he will never be on his own. There will always be someone to watch over him if needed. My husband’s family is very small so such support would not be available to him in Canada.
Michael (sic) health is excellent. He has no physical problems and will not use the health system any more than a normal person would.”
On 27 April 1998 the respondent’s department requested the visa applicant to provide a report from a paediatrician regarding Michael Courey’s Down’s Syndrome and hypothyroidism and also asked that the paediatrician arrange detailed psychological testing and an IQ assessment. The visa applicant obtained two reports which she submitted to the department. They comprised a report dated 17 June 1998 from Dr J Galiwango (a specialist paediatrician) and a psychological report dated 18 June 1998 from Dr J J McGrory. On 20 July 1998 Dr Clea Anagnostopoulou, a Medical Officer of the Commonwealth, provided a written opinion that Michael Courey did not meet the prescribed health criteria. Dr Anagnostopoulou’s opinion was that Michael Courey was a person who had a disease or condition that, during his period of stay in Australia would be likely to result in a significant cost to the Australian community in the areas of health care or community services. The reasons for that opinion were stated as follows:
“This 9 year old boy has Down’s Syndrome with moderate mental retardation. He also appears to have hypothyroidism, currently well controlled, as well as speech and language difficulties for which he requires a hearing aid.
There is an absence of behavioural problems.
The a/n will required (sic) special schooling and speech therapy. He will also be eligible for supported employment services in the future.
This will be at a cost to the Australian community.”
On 4 August 1998 a delegate of the respondent refused the visa application on the ground that Michael Courey had failed to meet the health requirement.
On 23 October 1998 the applicant (who as I have mentioned above is the visa applicant’s brother) applied to the Migration Internal Review Office for review of the delegate’s decision. That office ceased operations on 31 May 1999 and the application for review was transferred to the Migration Review Tribunal. The applicant’s migration agent forwarded some further medical reports to the Tribunal. These included reports dated 5 January 1990, 19 January 1990 and 13 August 1992 from Dr H C Rosenberg, (a paediatric cardiologist), a further report from Dr J J McGrory dated 2 June 1999 and a report dated 10 June 1999 from Dr M Baz (described as an independent medical examiner). The agent also forwarded to the Tribunal:
·documents which were described as “Community Reports”, from the Down Syndrome Association of New South Wales and the Down Syndrome Society of South Australia dated respectively 28 January 1998 and 30 April 1999;
·an occupational therapy report dated 17 June 1998;
·two communication therapy reports dated 26 June 1998 and 30 October 1998;
·an occupational therapy discharge report dated October 1998; and
·letters from teachers at Michael Courey’s school in Canada and his provincial report cards dated 6 April 1998, 27 November 1998 and March 1999.
These reports and letters were generally of a nature favourable to him. However, Dr Baz, of Chatswood in New South Wales, who perused the medical documentation, made the following observations under the heading “Costs of Care” and “Conclusion” respectively:
“COSTS OF CARE
The most significant care cost is the speech therapy. He has been receiving speech therapy once weekly, which may cost $1600 for a 40 week year.
He may require occupational therapy assistance on 4 occasions per year, at an approximate cost of $400 annually. The cost of thyroxine is minimal. He should attend his General Practitioner 2nd monthly for review of medication, at a cost of $150 annually. Pathology may cost $100 per year. He may require a hearing aid review, and audiometry, probably biannually. His hearing aids will need adjustment as he grows.
In my opinion while Michael will need regular health care, this is not a significant cost, and considerably less than the average cost of health care expenditure within the Australian community.
CONCLUSION
In my opinion this boy will not be a ‘significant cost’ to the community, or use health care resources at a level more than 50% of the community in the foreseeable future, and certainly not within the next 5 years.
While he may be assisted by certain community supported disability services to enhance his employment prospects, he will not require community resources in short supply, and will not prejudice access of others to health care.”
On 19 July 2000 the Tribunal decided to refer Michael Courey for further medical assessment by a Review Medical Officer of the Commonwealth. On 15 August 2000 it forwarded all the relevant medical documents to Health Services Australia for that purpose. The papers were referred to Dr Michael Pincus, a Review Medical Officer of the Commonwealth. On 1 October 2000 Dr Pincus wrote to the Tribunal informing it that he had reviewed the new additional information provided since Dr Anagnostopoulou’s report of 20 July 1998 (some 13 items), but stated that in order to provide his opinion he would need an up-to-date report based on a current assessment by a clinical psychologist to determine Michael Courey’s IQ and two areas of social functioning, namely, adaptive behaviour and capacity for independent living. He also requested a report by a speech therapist on Michael Courey’s speech and communication skills. On 6 November 2000 the visa applicant supplied to the Tribunal a communication therapy report dated 25 October 2000 from Ms Tonia Bryans, a report dated 5 November 2000 from Professor Sue Buckley and two video tapes referred to in the latter report. Professor Buckley concluded her report with the following observations:
“I see no reason why Michael should place any significant costs on the healthcare or community services, beyond the average per citizen, as he is likely to be a socially valued and contributing member of his community as an adult. Most teenagers and adults with Down syndrome are healthy and they have much lower incidences of heart disease and cancerous tumours than the typical population. There is a small increased risk of dementias after the age of 40-50 years but current studies indicate that this risk has been exaggerated over the past 10 years.
Adults or teenagers with Down syndrome very rarely cause any kind of social difficulties (drunkenness, debt, anti-social or criminal behaviour, marriage breakdown) and I strongly suspect that, as a group, they cost the community less than many young people and adults with IQ’s within the normal range.”
On 14 November 2000, Dr Pincus forwarded his report to the Tribunal. In that report Dr Pincus referred to the fact that he had been asked to conduct a review under the “Migration legislation” as at 1 July 1999. He summarised Dr Anagnostopoulou’s report and then continued in the following terms:
“Opinion of the Review Medical Officer of the Commonwealth
I have reviewed the new additional information provided.
1. Letter from Downs Syndrome Society of SA
2. Letter from Downs Syndrome Society of NSW
3. Report on Paediatric Echocardiogram (4/1/90)
4. Report from Dr HC Rosenberg (4/1/90, 30/7/92)
5. Letter from Jay McGrory (2/6/99)
6. Report from Dr Martha Baz
7. Report from Tonia Bryans
8. Report from Melanie Malkin
9. Report from Michael Brennan
10. Letter from Judy DaDalt
11. Letter from Andrew Fields
12. Report from Jay McGrory
13. Report J Rodrigues
14. Letter from Michael Courey’s mother
15. Speech pathologist report (25/10/00)
16. Report from Prof Sue Buckley (5/11/00)
17. Two videotapes of Michael Courey
From the information provided, it is clear that Michael Courey has a mild intellectual disability with an IQ in the 47-58 range. In the two key areas of social functioning, adaptive behaviour and capacity for independent living, his behaviour is socially appropriate and adaptive for his age but he needs regular supervision and assistance with daily activities, routine tasks, personal care and financial transactions. He also has impaired communication skills and needs regular speech therapy. In summary, he would eligible (sic) for the disability support pension on medical grounds.
In my opinion, the applicant would require ongoing assisted schooling and speech therapy. He would also be eligible for long term income support in the future at significant cost to the Australian community.
Under the circumstance, I provide the medical opinion that the applicant does not meet the prescribed health criteria for the duration of his stay in Australia. The reasons are set out in the Migration Regulations Public Interest Criteria as at 1 July 1999.
4005
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)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 services; 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.”
THE LEGISLATIVE FRAMEWORK
The primary power of the respondent to grant visas is conferred by s 29 of the Act. Section 31 provides for prescribed classes of visas and sections 32-38 define other classes of visas. Section 31(3) provides that the Regulations may prescribe criteria for visas of specified classes. Section 60 provides for medical examination in relation to an applicant’s health, physical condition or mental condition. Section 65 relevantly provides that if, after considering a valid application, the respondent is satisfied that the health criteria for it (if any) have been satisfied and the other criteria for it prescribed by the Act or the Regulations have been satisfied he or she is to grant the visa or if not so satisfied, is to refuse to grant the visa.
Regulation 2.01 of the Migration Regulations 1994 identifies the prescribed classes of visas by reference to Schedule 1 which includes, as Item 1118, “Former Resident (Migrant) (Class AR)”. That item specifies one sub-class, namely, “151 (Former Resident)”.
Regulations 2.02 and 2.03 define the criteria for each sub-class of visa by reference to Schedule 2 which sets out each sub-class and those criteria. Regulation 2.03 also provides for the incorporation into the Schedule 2 criteria of additional criteria set out in Schedules 3, 4 and 5.
The primary visa applicant for a Sub-class 151 Former Resident visa must satisfy the criteria set out in Item 151.21 and 151.22 of Schedule 2. Criterion 151.224 relevantly requires that each member of the family unit of the applicant is to satisfy certain public interest criteria, including Item 4005 of Schedule 4 relating to public health requirements. Item 4005 is correctly set out in the extract from Dr Pincus’ report above.
Regulation 2.25A(1) relevantly provides that 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 4005(a), (b) or (c). Regulation 2.25A(3) provides as follows:
(3)the Minister is to take the opinion of the Medical Officer of the Commonwealth on a matter referred to in subregulation (1) or (2) to be correct for the purposes of deciding whether a person meets a requirement or satisfies a criterion.”
THE APPLICANT’S GROUNDS OF APPLICATION
There were six numbered grounds in the applicant’s amended application. The “Ground” numbered 2 was, as counsel for the applicant conceded, purely descriptive of what the Tribunal had done, and was not a ground at all. The ground numbered 6 in the amended application was abandoned at the hearing. That left four grounds, three of which alleged reviewable error on the Tribunal’s part (Grounds 1, 3 and 4) and one ground by which it was asserted that Dr Pincus’ opinion was vitiated by legal error. This ground also contained an assertion that in those circumstances (vitiation by error of law) the Tribunal erred in law by accepting Dr Pincus’ opinion. Henceforth I shall refer to that opinion as “the Opinion”.
I shall first deal with those aspects of the grounds of the application and the applicant’s submissions which were directed to what was said to be the invalidity of Dr Pincus’ opinion. I shall do this because I think that it accords with the approach taken by a Full Court of this Court in Minister for Immigration and Multicultural Affairs v Seligman [1999] 85 FCR 115. At [66] the Court said this:
“It is not necessary for the purposes of this case to characterise consideration of the Medical Officer’s opinion as a review of that opinion. Nor is it necessary to characterise that consideration as going behind the opinion. The delegate is only entitled and obliged to take that opinion as correct if it is an 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, a ground of review for which s 476 of the Act provides.”
At paragraphs 48 and 49 in Seligman the Court observed that Regulation 2.25A(3) requires the Minister to take the relevant opinion to be “correct” for the purposes of deciding whether a person meets a requirement or satisfies a criterion where:
(1) What is provided is an opinion.
(2)The opinion is that of the Medical Officer of the Commonwealth who provides it.
(3)The opinion is the opinion of the Medical Officer “on a matter referred to in sub-reg (1) or (2)” i.e. relevantly in this matter whether Michael Courey meets the requirements of paragraph 4005(c).
(4)The opinion addresses satisfaction of the requirements at the time of the Minister’s decision.
MY REASONING
On the face of the Opinion it appears to be an opinion. I refer to the heading “Opinion of the Review Medical Officer of the Commonwealth”. I refer also to the two paragraphs in the Opinion immediately before the setting out of Item 4005 of Schedule 4 where Dr Pincus expressly states that these are his opinions. I find that they are his opinions. I also find that the immediately preceding observation “In summary, he would eligible (sic) for the disability support pension on medical grounds” is also an opinion of Dr Pincus, although not expressly stated as such.
In the last paragraph in which Dr Pincus expresses an opinion he says:
“Under the circumstance, I provide the medical opinion that the applicant does not meet the prescribed health criteria for the duration of his stay in Australia.”
In my view, that opinion is “… on a matter referred to in subregulation (1) …” of Regulation 2.25A i.e. whether Michael Courey meets the requirements of paragraph 4005. Whether it does so without legal error is considered further below.
The applicant did not contend that the Opinion was out of date in relation to the time of the decision under challenge. I note that the Opinion is dated 14 November 2000, but the Tribunal’s decision was not given until 26 April 2001. In the absence of any suggestion that there had been a change of circumstances between those two dates, I consider that the Opinion meets the fourth of the requirements which I have listed above (the requirement as to time) referred to by the Full Court in Seligman. I now turn to the specific complaints made by the applicant about the Opinion, not necessarily in the same order as they were dealt with by counsel.
First, the applicant referred to Dr Pincus’ statement that he had reviewed the additional material. The applicant submitted that the Opinion indicates that this statement is incorrect. Not only had Dr Pincus, so it was put, ignored the contents of that material, but he had purported to base adverse findings against Michael Courey on that material. The applicant contended that the Opinion had been formed in an arbitrary and capricious manner and that there had been an actual failure or constructive failure to form an opinion. The applicant further submitted that while Regulation 2.25A referred to an opinion, that opinion had to be made on proper grounds and could not be made in an arbitrary manner. The medical officer could not come to his or her opinion “… no matter what the actual situation may be.” By approaching the matter on that basis, so it was submitted, Dr Pincus had misunderstood the question and had thereby failed “to exercise jurisdiction”.
In oral submissions counsel for the applicant went so far as to contend that there had been a “complete abdication” on the part of Dr Pincus and the Tribunal of their respective duties. I shall turn to the complaints made about the Tribunal later, but first I shall set out my reasons in relation to the Opinion.
I note that Dr Pincus stated in the Opinion that he had reviewed the new additional information provided. He listed 17 items (18 really because there were two video tapes). In his letter dated 1 October 2000 to the Tribunal Dr Pincus made a similar statement in relation to what at that stage (with the exception of items 12 and 13 which appeared to have been made available to Dr Anagnostopoulou) comprised additional information supplied by the applicant’s migration agent to the Tribunal under cover of its letter dated 24 June 1999. He then asked for the further reports which I have described in paragraph 10 above. In the Opinion Dr Pincus added those further reports and other items under the numbers 14-17. I note that item 13 in both lists was a report from J. Rodrigues. That report from Dr Rodrigues (dated 29 June 1998) dealt exclusively with Mr David Courey’s medical history and condition. It was supplied in response to a request dated 4 May 1998 from the respondent’s department. It made no reference to Michael Courey. The applicant has not submitted that Dr Pincus made any relevant error in considering Dr Rodrigues’ report. As I have mentioned above, the main part of the applicant’s case is that Dr Pincus ignored all these reports.
The applicant has not pointed to any evidence other than that contained in the Opinion itself for his assertion that Dr Pincus was not telling the truth when he said that he had reviewed the new additional information provided and listed in the Opinion.
Even without taking into account the matters to which I refer immediately below, I do not think that the applicant has proved on a balance of probabilities that Dr Pincus did not review all of the material which he lists in the Opinion.
Furthermore, it is obvious from the contents of the report that Dr Pincus must have had regard to at least some of the information provided. To start with, there was no suggestion, at any stage, that Dr Pincus had ever physically examined Michael Courey. As he stated in the Opinion, his assessment is “from the information provided”.
In the Opinion, Dr Pincus first made some observations which were favourable to Michael Courey i.e. that in the key areas of social function, adaptive behaviour and capacity for independent living, Michael Courey’s behaviour was socially appropriate and adaptive for his age. Then there is reference to a need for “… regular supervision and assistance with daily activities, routine tasks, personal care and financial transactions”. The reference to regular supervision and assistance with daily activities, routine tasks and personal care is at least consistent with paragraph 1 of the occupation therapy report dated 17 June 1998 and paragraph 3 of the occupational therapy discharge report dated October 1998. As to Michael Courey’s impaired communication skills and the need for regular speech therapy, there is reference to that matter in the final paragraph (and in the recommendations) of the communication therapy report dated 25 October 2000 to which Dr Pincus refers (correctly) as the report of a speech pathologist. There is also reference to “the most significant care cost” of speech therapy in the opinion of Dr Baz, extracts from which I have set out at paragraph 9 above. Three paragraphs later in her report, Dr Baz stated her opinion that Michael Courey would not be a “significant cost” to the community.
In the second of the three main paragraphs of the Opinion (set out at pages 5-6 above) there is a reference to Michael Courey requiring on-going assisted schooling and speech therapy. The former is referred to in Professor Buckley’s report (page 2) and the latter, as I have mentioned, is referred to in the report from the speech pathologist dated 25 October 2000 and Dr Baz’s report of 10 June 1999.
It is true that, to some extent, in the Opinion Dr Pincus differs from some of the opinions expressed in the reports which were before him. But that, in my view, does not establish that he ignored the contents of that material or formed his opinion, as the applicant alleged, in an arbitrary and capricious manner to the extent that there was either an actual or constructive failure to form an opinion. In my view, it is apparent from the Opinion that Dr Pincus did review those reports, and I so find.
I now turn to the other particulars of the applicant’s complaint that the Opinion was vitiated by error of law. There was a complaint that the Opinion was contrary to the medical and other evidence, including video evidence, of the capabilities of Michael Courey. I have described above some respects in which the Opinion was consistent with the medical evidence placed before Dr Pincus. Even if the medical and other evidence were (contrary to my view) totally inconsistent with the Opinion, I do not think that that would demonstrate “jurisdictional” or other legal error. The Regulations require the respondent to seek the Opinion of a Medical Officer of the Commonwealth. Such Medical Officer must surely be entitled (and in my view is required) to form his or her own opinion, even if it conflicts with the medical evidence submitted on behalf of an applicant.
Next it was said that Dr Pincus did not say how or why Michael Courey did not meet the prescribed health criteria. I do not think that this complaint has been made out either. Dr Pincus identified the need for regular supervision and assistance with daily activities, routine tasks, personal care and financial transactions. He also referred to Michael Courey’s impaired communication skills and the need for regular speech therapy. He then gave the opinion that Michael Courey would be eligible for the disability support pension on medical grounds. Dr Pincus can thus be seen to have identified a disease or condition such that a person who had it would be likely to require health care or community services or meet the medical criteria for the provision of a community service during the period of the applicant’s proposed stay in Australia. Since the decision in Seligman, an inclusive definition of “community services” has been inserted in the Regulations which includes the provision of an Australian social security benefit, allowance or pension. Dr Pincus thus identified Michael Courey as a person who had a disease or condition to which subparagraph 4005(c)(i) (A) and (B) applied. In the second paragraph in which he expressed his opinions, Dr Pincus expressed the view that the long-term income support would be at significant cost. In so doing, Dr Pincus identified another failure to meet the criteria i.e. that the provision of the relevant community services would be likely to result in a significant cost to the Australian community – see subparagraph 4005(c)(ii)(A). I do not think that the applicant has made out this complaint.
The applicant asserted that the Opinion was contrary to the expert medical evidence provided on behalf of Michael Courey, but that Dr Pincus had not rejected that evidence. Alternatively, he complained that Dr Pincus had not provided any reasons why that evidence had been rejected.
I have already dealt above with the first part of this complaint. To the extent that the Opinion involved rejection of the expert medical evidence, I do not think that there was any reviewable error on Dr Pincus’ part in not expressly rejecting that evidence (assuming but without so deciding that the Opinion is subject to judicial review). Nor, in my view, was Dr Pincus under any obligation to provide reasons why he rejected (if he did so) any expert medical evidence proffered. I do not think that failure expressly to reject the evidence or to give reasons for doing so vitiates the Opinion.
The complaint that there was no evidence to support the Opinion was not pressed at the hearing. In my view, that was a sensible course because there was clearly some evidence of Michael Courey’s albeit mild, intellectual disability.
Next the applicant complained that Dr Pincus gave an opinion that there would be a significant cost to the Australian community:
(i) without considering Michael Courey’s circumstances;
(ii) by ignoring evidence to the contrary; and
(iii) without considering, analysing, measuring or explaining “significant”.
I have already considered above the arguments advanced under subparagraphs (i) and (ii) of this particular complaint. As to the assertion in subparagraph (iii) immediately above, I do not think that this complaint has been made out either. Dr Pincus identified various matters which, in the opinion he expressed, would make Michael Courey eligible for the disability support pension on medical grounds. He made a further reference to this pension as being “long-term income support”. In my view, in those circumstances, it was open to Dr Pincus to form the view that such a pension would be at a significant cost to the Australian community. I do not think that he was obliged, to analyse, measure or explain why such a cost would be significant, nor did he err in law or fail to exercise any “jurisdiction” in reaching that opinion.
The applicant contended that Dr Pincus had misunderstood the nature of the opinion which he had to form, misconceived his duty and function and failed to take into account relevant material. I do not think that this contention has been made out. In my view, it is abundantly clear from the Opinion itself that Dr Pincus understood the nature of the opinion which he had to form, understood his duty and function and carried them out. I have already dealt above with the allegation that Dr Pincus failed to take into account relevant material.
As part of this contention, in written submissions, the applicant complained that Dr Pincus, in support of his opinion, had simply set out in full Item 4005 and had not said which part or parts of that Item applied. As I have mentioned above, I consider that Dr Pincus sufficiently identified in the Opinion the respects in which Michael Courey failed to meet the relevant health criteria. In those circumstances, I do not think that the failure to identify which particular parts of Item 4005 applied, vitiates the Opinion.
The applicant then complained that Dr Pincus had not explained how Michael Courey would be “eligible” for long-term income support. I do not think that that is correct. As I have mentioned, Dr Pincus summarised Michael Courey’s disabilities and needs. He did this quite specifically in the first main paragraph of his opinion. He stated that Michael Courey would be eligible for the disability support pension on medical grounds. I think that he sufficiently identified what “long-term income support” meant by the earlier reference which he made to the disability support pension. The applicant further complained that Dr Pincus had used the word “eligible” rather than make a finding on whether Michael Courey would be likely to require health care or community services or meet the medical criteria for the provision of a community service. As to the complaint that “eligibility” does not appear in Item 4005, in my view, whether a person who has the disease or condition would be likely to “meet the medical criteria for the provision of a community service” amounts relevantly to being “eligible” for such a community service on medical grounds.
I think that there is a degree of ambiguity in the final paragraph of Dr Pincus’ opinions where he says “the reasons are set out in the Migration Regulations Public Interest Criteria as at 1 July 1999”. However, the Opinion is to be read beneficially and, in so doing, when it is read as a whole it can be seen to be a summary of the relevant disease or condition which Michael Courey has, and an opinion about the matters referred to in sub-paragraph 4005(c). Dr Pincus then expressed the opinion that the applicant did not meet the prescribed health criteria for the duration of his stay in Australia. In that context, to set out the full text of Item 4005 amounted simply to indicating why the various assessments made by Dr Pincus resulted in his opinion that Michael Courey did not meet the prescribed health criteria.
Contrary to the submission of the applicant, I consider that a fair reading of the Opinion discloses a finding that Michael Courey would be likely to require health care or community services, that he met the medical criteria for the provision of a community service and a finding that the provision of the relevant community services would be likely to result in significant cost of the Australian community.
As I see it, a constructional issue arises with Item 4005(c)(i). It may well be that the function of the Medical Officer, having formed the opinion that an applicant has a disease or condition, is to assess objectively whether a person who has such a disease or condition [see the reference to “… a person who has it …” in subparagraph (c)(i)] would be likely to require health care or community services or meet the medical criteria for the provision of a community service, rather than to consider whether the particular applicant would be likely so to require the care or services or meet the criteria referred to in that subparagraph. I think that this is confirmed by the wording at the end of subparagraph (c) i.e. “… regardless of whether the health care or community services will actually be used in connection with the applicant …”. Even if that construction is correct, I do not think that Dr Pincus, by “personalising” the Opinion in terms of the applicant’s requirements and eligibility committed any “jurisdictional” or other legal error. Implicit in Dr Pincus’ assessment was that a person who had Michael Courey’s condition would be likely to require health care or community services and would meet the medical criteria for the provision of long-term income support in the form of a disability support pension. Furthermore the “condition” of an applicant is an inherently personal attribute which may well be at a particular point in a gradation. It seems clear from the medical evidence that this is such a case. In those circumstances, the distinction between the applicant’s (Michael Courey’s) actual condition and the likely requirements of “a person” (i.e. someone other than the applicant) having such a condition is, in my view, too artificial to have any substance in this matter. In any event, the applicant’s case was not put on the basis that Dr Pincus had unduly “personalised” his opinion; the applicant’s case was basically to the opposite effect.
Having identified the relevant health care or community services, the test then to be applied under subparagraph (c)(ii) is, in my opinion, whether the provision of the particular health care or community services would be likely to result in a significant cost to the Australian community. It is not a test of whether Michael Courey is likely to require health care or community services which would result in a significant cost to the Australian community. Dr Pincus identified the disease or condition as being such that a person having it would require health care or community services and would meet the medical criteria for the provision of a community service. [These requirements and criteria are specific to the disease or condition and the identification of the particular person adds nothing to the assessment of the requirement or the entitlement]. He then identified the particular health care (speech therapy) and community services. The community service was specified as the disability support pension. Qualification for disability support pension involves (as might be expected) satisfaction of a number of conditions – see for example s 94 of the Social Security Act 1991 (Cth). The conditions include the requirement that a person has a physical, intellectual or psychiatric impairment of 20% or more under the “Impairment Tables” (which form Schedule 1B to that Act). Dr Pincus was relevantly required only to consider whether a person having Michael Courey’s condition would meet the medical criteria for “a community service”. The disability support pension falls clearly within the definition of “community services”, referred to in paragraph 34 above, being an Australian social security benefit. That definition is an inclusive one so it might well be that the provision of a teaching aide for half a day per week also amounts to a community service; it is not necessary for me to decide that point.
The next step was for Dr Pincus to form an opinion about whether the provision of such health care or community services would be likely to result in significant cost to the Australian community in the areas of health care and community services. Dr Pincus can be seen to have formed that opinion. Finally, Dr Pincus expressed an opinion, in the form of a conclusion, based on his foregoing opinions, namely, the medical opinion that Michael Courey did not meet the prescribed criteria for the duration of his stay in Australia. In my view, Dr Pincus asked himself the right questions and his opinions on them are not vitiated in the manner contended by the applicant or at all. The applicant submitted that by failing to quantify the cost, Dr Pincus had exercised his opinion-forming power in an arbitrary manner. In my view, that is not so. His task was to form a view whether the cost was likely to be significant. I think that Dr Pincus, having found medical eligibility for long term income support in the form of the disability support pension, was entitled to form the opinion that the provision of such a pension would result in significant cost, without quantifying that cost.
I now turn to the grounds upon which the Tribunal’s decision was challenged. In my view, these challenges were derivative, in the sense that they succeeded or failed depending upon whether the Opinion was vitiated by relevant error. Counsel for the applicant conceded as much (rightly so in my opinion), at the trial. In written submissions the applicant referred to paragraph 22 of the Tribunal’s reasons which read as follows:
“The Tribunal has already referred to Regulation 2.25A. This requires that, in determining whether an applicant satisfies health criteria, the Minister must seek the opinion of an MOC. Sub-regulation 2.25A(3) requires that the Minister is to take the opinion of the MOC to be correct. Having had regard to all the material and evidence submitted in this matter, including the latest opinion by the MOC dated 8 November 2000, the Tribunal finds that the primary applicant is not entitled to the grant of the Subclass 151 visa. The review application must therefore fail.”
The applicant submitted that the Tribunal had ignored his agent's submission and that the correct position in law was that the Tribunal was only required to accept the MOC’s opinion if the opinion itself was lawful – citing Seligman and Bui v Minister for Immigration and Multicultural Affairs [1999] FCA 118.
In fairness to the Tribunal I think that I should, at this point, refer to paragraph 21 of its reasons which read as follows:
“The Tribunal acknowledges that the MOC’s final opinion that Michael Courey does not meet the prescribed health requirements, delivered on 8 November 2000, conflicts with the tone of medical and allied health reports submitted by the family. However the MOC’s opinion is based on objective evidence contained within these medical and allied health reports.”
In view of my conclusion that the Opinion was not vitiated by error or law, the Tribunal did not, in my view, err in law in any of the respects contended for by the applicant, when it took the Opinion as being correct. It was obliged to do so by Regulation 2.25A(3).
CONCLUSION
For the foregoing reasons the application will be dismissed with costs.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr.
A/g Associate:
Dated: 31 July 2001
Counsel for the Applicant: Mr A J Goldfinch Solicitor for the Applicant: Messrs Goldfinch & Co Counsel for the Respondent: Mr P R Macliver Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 24 July 2001 Date of Judgment: 31 July 2001
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