CVM17 v Minister for Immigration
[2019] FCCA 617
•15 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CVM17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 617 |
| Catchwords: MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant applicant a Partner (Provisional) (Class UF) visa (Partner visa) – delegate refused to grant Partner visa on the basis of an opinion of a medical officer of the Commonwealth (MOC Opinion) that the requirements of Public Interest Criterion 4007(1)(c) have not been met – whether Tribunal considered whether because of the period that had elapsed between the time the MOC Opinion was issued and the date on which Tribunal made its decision the MOC Opinion was not current or not reliable – whether it was reasonably open to the Tribunal to consider the MOC Opinion was current and reliable – whether assuming it was not open to the Tribunal to consider the MOC Opinion was current and reliable the Tribunal had the power to seek a further opinion from a MOC and if it had such power whether the Tribunal acted unreasonably by not seeking a further opinion from the MOC – assuming the Tribunal did not have power to seek a further opinion from a MOC, or it did not act unreasonably in not seeking a further opinion from the MOC – whether the Tribunal’s relying on the MOC Opinion was material to the decision it made – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.476 Migration Regulations 1994 (Cth), regs.2.25A, 5.41(1) Migration Regulations 1994 (Cth), Schedule 4, item 4007 |
| Cases cited: Applicant Y v Minister for Immigration andCitizenship [2008] FCA 367 Minister for Immigration and Multicultural Affairs v Seligman [1999] FCA 117 |
| Applicant: | CVM17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1790 of 2017 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 2 March 2018 |
| Date of Last Submission: | 2 March 2018 |
| Delivered at: | Sydney |
| Delivered on: | 15 March 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms S Cirillo |
| Solicitors for the Applicant: | HIV/AIDS Legal Centre |
| Counsel for the First Respondent: | Mr T Reilly |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1790 of 2017
| CVM17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a national of Ukraine. On 1 December 2014 she married an Australian citizen in Bangkok and, on 28 December 2014, she lodged an application for a Partner (Provisional) (Class UF) visa (Partner visa).
To have been entitled to a Partner visa the applicant was required to satisfy the requirements of item 4007 of Schedule 4 (PIC 4007) to the Migration Regulations 1994 (Cth) (Regulations).[1] Regulation 2.25A of the Regulations prescribes the manner in which the first respondent (Minister) is to determine whether the requirements of a number of paragraphs in Schedule 4 to the Regulations, including PIC 4007, are satisfied; and this consists of the Minister seeking the opinion of a medical officer of the Commonwealth (MOC) about whether those requirements are satisfied and, after that opinion is obtained, treating as correct the opinions given by the MOC.
[1] The applicant was required to satisfy PIC 4007 by cl.309.225 of Schedule 2 to the Regulations.
After the applicant lodged her application for a Partner visa a delegate of the Minister sought the opinion of a MOC on whether the applicant satisfied the requirements of PIC 4007(1)(c). On 15 March 2015 a MOC issued an opinion that the applicant did not satisfy PIC 4007(1)(c) (MOC Opinion). Relying on that opinion, on 11 December 2015 the delegate refused to grant the applicant a Partner visa. The second respondent (Tribunal), also relying on the MOC Opinion, affirmed the delegate’s decision.
The applicant now seeks remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to the Tribunal’s decision. The applicant claims the Tribunal made a jurisdictional error by treating as correct the opinions contained in the MOC Opinion in circumstances where the Tribunal ought not to have relied on the MOC Opinion.
The principal matter on which the applicant relies is the time that elapsed between the date on which the MOC Opinion was issued, and the date on which the Tribunal relied on the MOC Opinion when deciding to affirm the delegate’s decision. The applicant particularly relies on the judgment of Tamberlin J in Applicant Y v Minister for Immigration and Citizenship,[2] and the judgment of the Full Federal Court in Minister for Immigration and Multicultural Affairs v Seligman on which Tamberlin J, in turn, relied.[3] The applicant submits that the circumstances that led Tamberlin J in Applicant Y to conclude the Migration Review Tribunal (MRT) in that case made a jurisdictional error by relying on the opinion of a MOC are present in the circumstances in which the Tribunal relied on the MOC Opinion.
[2] [2008] FCA 367
[3] [1999] FCA 117 (French, North, and Merkel JJ)
Before I consider the applicant’s claims and submissions, I will set out the relevant statutory provisions and their effect, the MOC Opinion, some aspects of the course of the proceeding before the Tribunal, the Tribunal’s reasons, the ground on which the applicant relies as stated in the amended application, and the parties’ submissions. I will then identify the issues that arise on the competing submissions of the parties and consider each of those issues.
Relevant provisions and their effect
The starting point is PIC 4007(1)(c), which provides as follows:
The applicant:
. . . .
(c)is free from a disease or condition in relation to which:
(i)a person who has it would be likely to:
(A) require health care or community services; or
(B) meet the medical criteria for the provision of a community service;
during the period described in subclause (2); and
(ii)the provision of the health care or community services would be likely to:
(A) result in a significant cost to the Australian community in the areas of health care and community services; or
(B) prejudice the access of an Australian citizen or permanent resident to health care or community services;
regardless of whether the health care or community services will actually be used in connection with the applicant . . .
Regulation 2.25A provides as follows:
(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 . . . 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 subregulation (1) or (2) to be correct for the purposes of deciding whether a person meets a requirement or satisfies a criterion.
It will be seen that, where it applies, reg.2.25A obliges the Minister to do two things: he or she must seek the opinion of a MOC on whether a person meets the requirements of PIC 4007(1)(c); and, on receiving such opinion, the Minister is to take as correct the opinion of the MOC for the purpose of deciding whether the person meets the requirement.
The Full Federal Court considered the circumstances in which the Minister is to take the opinion of a MOC to be correct in Minister for Immigration and Multicultural Affairs v Seligman. The Full Federal Court said (emphasis added):[4]
[4] [1999] FCA 117, at [48], [49] (French, North, and Merkel JJ)
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 subreg 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 subreg 2.25A(1) is whether a person meets the requirements of the relevant paragraph of Schedule 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.
Relevant to the application before me is the third of the qualifications identified by the Full Federal Court. By requiring a MOC opinion to “address satisfaction at the time of the Minister’s decision”, the third qualification suggests the MOC opinion must be based on a state of affairs that exists at a time after the opinion is given, namely, when the Minister decides to grant or not to grant the visa. The third qualification further suggests that where the Minister refuses to grant the visa and the applicant applies for review of the decision, a MOC opinion must “address satisfaction at the time” the MRT decides to affirm or not affirm the decision of a delegate not to grant a visa. That, in turn, suggests that a MOC opinion must be based on a state of affairs that exists at the time the Tribunal might make a decision. That, at any rate, is how Tamberlin J in Applicant Y interpreted the third qualification identified in Seligman. That is apparent from the following passage from his Honour’s reasons for judgment:[5]
In practical terms, the requirement in Seligman . . . that the MOC’s opinion must address satisfaction of relevant requirements as at the time of the Minister’s decision cannot be read literally. For example, where the Tribunal is reviewing the Minister’s decision, it cannot be reasonably suggested that the Tribunal should be required to have an MOC’s opinion as at the same date as its decision. Generally, the Tribunal will reserve its decision at the end of the hearing and it should be entitled to rely on an opinion which is current and reliable at the date of the hearing, and should not be required to seek or consider a fresh opinion bearing the same date as that on which it eventually hands down its decision.
[5] [2008] FCA 367, at [19]-[21]
As is apparent from this passage, although his Honour considered that, read literally, the third qualification identified in Seligman required that the MOC opinion address satisfaction of the requirements of PIC 4007(1)(c) at the time the Minister makes a decision and, on review, at the time the Tribunal makes a decision, his Honour was of the view that the qualification should not be read literally. If it is not to be read literally, however, how should the qualification be read? His Honour’s answer is contained in the following passage:
However, in addressing this question, the Tribunal cannot generally disregard a substantial lapse in time between the issue of an MOC’s report and the making of its decision. In some cases, for example, it may be that an MOC’s opinion expressed many years before the Tribunal’s decision, on its face, by reason of the lapse of time and other considerations, will necessitate further investigation as to that opinion’s relevance, currency and reliability. Whether further investigation is required will depend on an assessment of all the circumstances of the case, including the amount of time that has elapsed between the issue of the MOC’s report and the Tribunal’s decision, any evidence of change (and, in particular, improvements) in the applicant’s health, and the degree to which any other medical opinions demonstrate a lack of currency and reliability in the opinion of the MOC.
The principle that emerges from this passage is that, at least where more than an insubstantial time has passed between the date on which a MOC issues an opinion and the date on which the Minister or, on review, the MRT (now the Tribunal) is to decide whether to grant a visa, the Minister or the Tribunal cannot take the opinion of a MOC to be correct unless the Minister or Tribunal first considers, and is satisfied, that, having regard to the “opinion’s relevance, currency and reliability”, the opinion addresses “satisfaction of the requirements at the time of the Minister’s decision”.
There are a number of observations that may be made about the principle that emerges from Applicant Y.
a)First, the principle does not purport to be the product of any construction of the text of reg.2.25A of the Regulations or of PIC 4007. Its starting point is the third qualification identified in Seligman; and the principle itself is the product of the recognition that the qualification cannot be taken literally.
b)Second, the Full Federal Court in Seligman did not disclose the reasoning by which it found that a MOC opinion must “address satisfaction of the requirements at the time of the Minister’s decision”. These are words that do not appear in reg.2.25A of the Regulations. Subregulation 2.25A(1) provides no more than that the Minister must seek the opinion of a MOC “on whether a person . . . meets the requirements of . . . 4007(1)(c) of Schedule 4”. There is nothing in the language of the text that suggests the MOC opinion must be based on circumstances other than those that exist at the time the MOC is to give his or her opinion.
c)Third, although the Full Federal Court did not disclose the reasoning by which it found that a MOC opinion must “address satisfaction of the requirements at the time of the Minister’s decision”, it may readily be inferred that it relied on the requirement that PIC 4007 must be met at the time of decision. That the requirements of PIC 4007, however, have to be satisfied at the time of decision says nothing about the manner by which the Minister or the Tribunal is to arrive at that state of satisfaction. Regulation 2.25A of the Regulations mandates the manner in which the Minister or Tribunal is to arrive at that satisfaction; and, as I have already noted, there is nothing in the text of reg.2.25A that suggests the MOC opinion must be based on circumstances other than those that exist at the time the MOC is to give his or her opinion.
d)Fourth, the third qualification ignores that at the very least the Regulations contemplate that it is open to an applicant to seek and put before the Tribunal a further MOC opinion. Here I am referring to reg.5.41 of the Regulations which prescribes the fee that is payable in the circumstances set out in reg.5.41(1). Those circumstances are there is an application for review to the Tribunal of a decision based wholly or in part on there being a MOC opinion that the person does not satisfy a requirement mentioned in reg.2.25A(1) or (2); and a further opinion of a MOC is required for the purposes of the review. That it is open to an applicant to seek a further opinion from a MOC suggests that a MOC opinion is not required to “address satisfaction of the requirements at the time of”, at least, the Tribunal’s decision.
e)Fifth, Tamberlin J in Applicant Y did not consider what the legal consequences would be if the Tribunal, after having considered the MOC’s opinion, were to find that, because of the time that has passed, it is not relevant, current, or reliable and, for that reason, does not address satisfaction of the requirements of PIC 4007(1)(c) at the time of the Tribunal’s decision. Presumably the immediate consequence would be that the Tribunal could not rely on it. But what then? Regulation 2.25A prescribes the manner in which the Minister (and, on review, the Tribunal) is to satisfy himself or herself about whether the requirements of PIC 4007(1)(c) (among other requirements) are met. As I have already noted, this requires two steps – the Minister (not the Tribunal) seeking the opinion of a MOC, and the Minister (and, on review, the Tribunal) treating as correct the opinion stated by the MOC. If the Tribunal cannot rely on the MOC opinion that has been provided because it has formed the view it is not relevant, current, or reliable, the means prescribed by reg.2.25A of the Regulations for determining whether the requirements of PIC 4007(1)(c) have been satisfied would not be present, which means that the Minister (or the Tribunal on review) would be unable to be satisfied the requirements of PIC 4007(1)(c) have been. This suggests that the Tribunal’s failure to consider whether a MOC opinion is relevant, current, or reliable or, the Tribunal’s finding through some error that the MOC is relevant, current, or reliable, could never be material to the Tribunal’s decision.
Notwithstanding these observations, I am of course bound to follow Applicant Y and Seligman; and I will proceed on the assumption that these authorities state the correct principles I am required to apply in this proceeding.
The MOC Opinion
The MOC Opinion contained the following opinions: [6]
a)The applicant has asymptomatic HIV.
b)The provision of services to a hypothetical person with the applicant’s condition, at the same severity as the applicant, would be likely to require long term specialist healthcare services, including antiretroviral medications.
c)A hypothetical person with “this disease or condition”, at the same severity as the applicant, would be likely to require health care or community services “during the period specified above”, those services being medical services and pharmaceuticals.
d)The provision of “these health care and/or community services would be likely to result in a significant cost to the Australian community in the areas of health care and/or community services”.
e)The likely cost to the Australian community of the health care is $705,600 in pharmaceuticals, and $72,800 in medical services.
[6] SRD4
Before the Tribunal
The sponsor applied to the Tribunal for a review of the delegate’s decision. He gave evidence on 8 February 2017, and the applicant gave oral evidence to the Tribunal on that day by telephone from Kiev, Ukraine.
Before the hearing the sponsor’s representative provided to the Tribunal submissions which, in a covering letter dated 23 January 2017, the representative said addressed “the reasons why the costs considerations may not be accurate, for the purpose of assessing a health waiver, and further or in the alternative the costs are unlikely to result in undue costs to the Australian community”.[7] The submissions referred to a number of matters, one of which was the applicant’s healthy lifestyle. The submissions attached a letter dated 17 January 2017 from the applicant’s doctor (Dr AM) which expressed a number of opinions, including the opinion that her “current treatment regimen, while effective, is out dated and if we were to manage her care in the future we would aim to rationalise her medications and put her on a single tablet/day regimen”.
[7] CB132-133
By letter dated 25 January 2017 the applicant’s representative stated as follows:[8]
Given that the MOC’s costing for [the applicant’s] health was dated 9 March 2015, we note that as the decision maker, unless the Member is in a position to make a positive decision in relation to the health waiver, the Member must be satisfied that the costing and opinion is valid so as not to fall into jurisdictional error. Accordingly, we submit that the Tribunal must be satisfied that the MOC opinion and costing is not more than 12 months old, that it cites the material relied upon in reaching the opinion and that the MOC has taken into account all relevant factors that apply to a hypothetical person with the same condition and severity as the applicant.
[8] CB171
At the hearing the Tribunal informed the sponsor and his representative that it would consider the validity of the report and opinion of the MOC, and would also consider whether the requirements of PIC 4007 should be waived under PIC 4007(2). The Tribunal said that on a preliminary assessment the MOC Opinion appeared to be valid, but the applicant could request a review of the opinion, and it explained how the applicant could do that. The sponsor, through his agent, submitted that if the Tribunal is satisfied with the validity of the MOC Opinion, the sponsor would proceed with the application for review without requesting a review of the MOC Opinion.
Tribunal’s reasons
The Tribunal considered the application of each of the elements of PIC 4007(1)(c) to the circumstances of the applicant, and whether PIC 4007(1)(c) should be waived under PIC 4007(2).
First, the Tribunal was satisfied the applicant was free from tuberculosis and from any 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.
Second, the Tribunal found that an opinion from a MOC is required. The Tribunal said it must take the MOC Opinion as correct, noting, however, that it must first be satisfied the MOC Report applied the correct test in forming the opinion.[9]
[9] CB224, [41], referring to Robinson v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1626 and Ramlu v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1735
Third, the Tribunal considered the currency of the MOC Opinion. The Tribunal noted the MOC Opinion was issued on 9 March 2015, and that the MOC Opinion stated the applicant’s condition is likely to be permanent. The Tribunal said it considered the time that had elapsed between the issue of the MOC Opinion and the Tribunal’s decision, and whether there is evidence of any change, and in particular evidence of improvements in the applicant’s health. The Tribunal referred to the report of Dr AM dated 17 January 2017, noting that the doctor’s diagnosis and prognosis of the applicant’s condition are not inconsistent with the diagnosis and prognosis expressed in the MOC Opinion in that they both suggest that with the continuation of the applicant’s antiretroviral therapy, the applicant’s prognosis is positive, and her HIV infection should not affect her ability to work.[10]
[10] CB224, [43]
Fourth, the Tribunal considered the sponsor’s submission that the costs to the Australian community estimated by the MOC Opinion reflects a worst case scenario, and does not reflect the possibility of the reduction in the costs of medication which it was submitted would reduce as drug patents expire. The Tribunal did not accept that the estimate made in the MOC Opinion did not have regard to changes in circumstances in the future. The Tribunal also did not accept the applicant’s submission that the MOC Opinion did not take into account the applicant’s lifestyle or overall good health. The Tribunal concluded that the evidence before it “does not demonstrate a lack of currency or a lack of reliability of the MOC opinion”.[11]
[11] CB225, [44]
Fifth, the Tribunal found the MOC Opinion identified the medical condition to which PIC 4007(1)(c) “has been applied”, the form or level of the condition from which the applicant suffered, and the MOC Opinion applied the statutory criteria to a hypothetical person who suffers from that form or level of the condition. For these reasons, the Tribunal found the MOC Opinion to be valid.[12]
[12] CB224, [41]
Sixth, the Tribunal considered whether the requirements of PIC 4007(1)(c) should be waived. For reasons it is not necessary for me to set out, the Tribunal concluded that, although there are a number of factors that are favourable to the applicant, it found “there are not compelling circumstances, or compassionate circumstances such that satisfy the granting the visa would be unlikely to result in undue cost to the Australian community in accordance with PIC 4007(2)” and, for that reason, PIC 4007 cannot be waived.[13]
[13] CB236, [89]
Ground of application
The amended application contains two grounds of application, but the applicant only presses ground 1,[14] which is as follows (emphasis in original):
The second respondent (the Tribunal) fell into error by relying on an opinion of a Medical Officer of the Commonwealth at pages 4 to 5 of the Supplementary Documents (the MOC opinion) for the purposes of r.2.25A of the Migrations Regulations 1994 to determine that the visa applicant did not meet the requirements of Public Interest Criteria 4007(1)(c) in Schedule 4 of the Migrations Regulations 1994 – the question for the Tribunal being to determine whether those requirements are met at the time of the Tribunal’s decision – in circumstances where:
a. 25 months and 23 days had elapsed between the issue of the MOC opinion on 9 March 2015 and the Tribunal’s decision on 2 May 2017; and
b. the report of [Dr AM] dated 17 January 2017 . . . evidenced a change in the visa applicant’s health by stating that the visa applicant’s treatment regime was “out dated” and could be “rationalis[ed]”, and therefore demonstrated a lack of currency and reliability in the opinion of the MOC; and
c. notwithstanding the demonstrated lack of currency and reliability in the opinion of the MOC by reason of the circumstances referred to in the subparagraph above, the Tribunal did not appreciate such when it found at [43] of its reasons;
i. that [the doctor’s] report and the opinion of the MOC “[were] not inconsistent” even though [the doctor’s] observation of an out dated regime did infer inconsistency and the Tribunal did not have before it the reports relied upon by the MOC opinion, being those of the “Panel Physician dated 9 February 2015 and by Dr [EK] dated 3 March 2015”; and
ii. that both [the doctor’s] report and the opinion of the MOC “suggest that with a continuation of the applicant’s antiretroviral therapy, the applicant’s prognosis is positive and her HIV infection should not affect her ability to work” when the MOC opinion contained no statement to that effect.
[14] Applicant’s Outline of Submissions, [5]
The parties’ submissions
In her written submissions counsel for the applicant submits the Tribunal fell into jurisdictional error because it relied on the MOC Opinion “without investigation as to the opinion’s relevance, currency and reliability, or requiring a fresh MOC be obtained” in circumstances where the Tribunal ought to have done so.[15] Counsel says the applicant does not submit the Tribunal ought, per se, to have made inquiries; the applicant instead submits that, in the circumstances of this case, the Tribunal ought to have undertaken such investigations. The “obligation is a negative one, to simply avoid the error by not relying on a MOC opinion that fails to address the question of whether the person satisfied PIC 4007(1)(c) at the time of the Tribunal’s decision – not a positive obligation to actually make inquiries, per se, in all cases”.[16]
[15] Applicant’s Outline of Submissions, [32]
[16] Applicant’s Outline of Submissions, [34]
Counsel for the applicant in her written submissions further submits that several of the salient features identified in Applicant Y exist in the circumstances of the case before me:[17]
a)First, there was a substantial lapse of time between the date on which the MOC Opinion was issued and the day on which the Tribunal made its decision. The passage of this time “raised the prospect that any number of circumstances may have changed in the interim”, rendering the MOC Opinion not current and, therefore, unreliable; and that the substantial lapse of time stands as a circumstance “that ought to have prompted the Tribunal not to have relied upon” the MOC Opinion.[18]
b)Second, the Tribunal had before it evidence of a change in the applicant’s health, namely the opinion of the Dr AM, and in particular the opinion that the applicant’s current treatment regimen, while effective, is out dated; and if Dr AM were to manage the applicant’s care in the future “we would aim to rationalise her medication and put her in a single tablet/day regimen”. Counsel submits that this information constituted a “prospective amendment to the applicant’s treatment regime” which “may have had the effect of revising the MOC’s costs assessment”.[19]
c)Third, the Tribunal could not have been certain there was no disagreement between the MOC Opinion and any other more current medical opinion, apart from that of Dr AM. Here counsel refers to a number of matters: although the Tribunal referred to Dr AM’s report, the reference in that report to an outdated regime “plainly did infer inconsistency” between that report and the MOC opinion;[20] it was not open to the Tribunal to find there was no inconsistency between the MOC Opinion and the report of Dr AM when the Tribunal did not have before it the reports on which the MOC Opinion relied, these being the opinions of the “Panel Physician dated 9 February 2015 and by Dr [EK] dated 3 March 2015”;[21] and the Tribunal said the MOC Opinion and Dr AM’s report suggest that with the continuation of the applicant’s antiretroviral therapy, the applicant’s prognosis is positive and her HIV infection should not affect her ability to work, but the MOC Opinion contained no statement to that effect.
[17] Applicant’s Outline of Submissions, [35]
[18] Applicant’s Outline of Submissions, [37]
[19] Applicant’s Outline of Submissions, [44]
[20] Applicant’s Outline of Submissions, [46]
[21] Applicant’s Outline of Submissions, [46]
Counsel for the Minister, on the other hand, submits that the applicant in effect claims the Tribunal was under a duty with which it did not comply “to make further inquiries or obtain a new medical opinion”.[22] Counsel submitted that Applicant Y is distinguishable because Tamberlin J declined to find that the Tribunal had a duty to obtain an updated MOC report.[23] Counsel submitted that the Tribunal in the case before me expressly considered the currency of the MOC’s opinion, including evidence from the applicant’s doctor.
[22] First Respondent’s Written Submissions, [3]
[23] First Respondent’s Written Submissions, [3]
During oral address, counsel for the applicant repeated the effect of the submissions she made in her written submissions. In addition, however, I explored with counsel for the applicant what the consequences would be if the applicant were to succeed in her contention that the Tribunal fell into jurisdictional error by relying on the MOC Opinion. In particular I asked whether the consequence would be that the Tribunal could not have been satisfied in any event that the requirements of PIC 4007(1)(c) have been met because there would have been no MOC opinion about whether the requirements of PIC 4007(1)(c) have been satisfied. Counsel submitted that in those circumstances the Tribunal would have had to consider whether it should seek a new MOC opinion. Counsel also submitted that whether the MOC Opinion satisfied the requirements of PIC 4007(1)(c) at the time the Tribunal made its decision a jurisdictional fact.
In the light of these submissions, the following issues arise:
a)Is the question whether the MOC Opinion satisfied the requirements of PIC 4007(1)(c) at the time the Tribunal made its decision a jurisdictional fact? If so, does the applicant bear the onus of showing that that MOC Opinion did not satisfy those requirements? If so, has the applicant discharged the onus?
b)Assuming the question whether the MOC Opinion satisfied the requirements of PIC 4007(1)(c) at the time the Tribunal made its decision is not a jurisdictional fact:
i)Did the Tribunal consider whether the MOC Opinion satisfied the requirements of PIC 4007(1)(c) at the time the Tribunal made its decision?
ii)Assuming the Tribunal considered whether the MOC Opinion satisfied the requirements of PIC 4007(1)(c) at the time the Tribunal made its decision, was it open to the Tribunal to have been so satisfied?
iii)Assuming the Tribunal did not consider whether the MOC Opinion satisfied the requirements of PIC 4007(1)(c) at the time the Tribunal made its decision or, if it did, it was not reasonably open to it to be so satisfied, is the Tribunal’s failure to do either of these things material to its decision?
Before I consider these issues, however, it would be convenient first to set out the facts and reasons for judgment in Applicant Y.
Applicant Y
In Applicant Y the appellant applied for a visa on 23 July 2001. A delegate of the Minister refused the application on 10 October 2003 because the delegate concluded the appellant did not satisfy the health criteria specified in PIC 4007(1). The delegate based his decision on a MOC opinion dated 8 May 2003 that the visa applicant had been diagnosed as HIV positive, that she was receiving therapy, and that the cost of her health care would be approximately $250,000. On the basis of those opinions, the delegate concluded there was a likelihood of undue cost to the Australian community.
On 16 October 2003 the appellant applied to the Migration Review Tribunal (MRT) for review of the delegate’s decision. By that time the appellant had two reports from her doctor, one dated 20 May 2002 and one dated 28 August 2003. The appellant provided a further report from her doctor after the appellant had appeared before the MRT, but before the MRT gave its decision. The prognosis given by the appellant’s doctors was more favourable than that given by the MOC.
On 22 March 2004 the MRT wrote to the appellant’s solicitor stating that the MRT cannot review a medical assessment by a MOC. The MRT said that its review was limited to giving the applicant an opportunity to obtain a new medical assessment from a Review Medical Officer of the Commonwealth (RMOC) or considering whether to waive the health requirements. The appellant’s solicitor responded with a letter stating that the solicitor had discussed the possibility of obtaining a new medical assessment from the RMOC, but had advised the appellant that the solicitor found that the RMOC always affirms the decision of the MOC.
On 13 April 2004 the MRT invited the appellant’s solicitor to provide in writing any comments on the medical assessment of the MOC, and any other relevant information. The appellant’s solicitor did so by letter dated 28 April 2004. The solicitor conceded the appellant did not meet the criteria in PIC 4007(1), but he made submissions relevant to waiving PIC 4007. After a hearing, the MRT gave its decision on 15 April 2005.
The appellant submitted the MRT erred in accepting as valid a MOC opinion that was 23 months old. She submitted that, to be valid, the opinion expressed by the MOC had to address satisfaction of the criteria in PIC 4007 “as at the date of the Minister’s decision”;[24] and the MOC opinion could not satisfy that criterion.
[24] Relying on Minister for Immigration and Multicultural Affairs [1999] FCA 117, [49]
Tamberlin J held that the determination of the appeal “depends on an application of the test laid down by the Full Court in Seligman (at [49], where it was stated that the Minister is required by reg 2.25A(3) to take the opinion of the MOC as correct, subject to a qualification that, inter alia, any such opinion must address whether the relevant requirements were satisfied at the time of the Minister’s decision”.[25] In those circumstances, the issue his Honour considered arose for determination was whether the Tribunal fell into jurisdictional error when it took as correct an opinion of a MOC which was given 23 months before the MRT made its decision “and which, as a result of this lapse of time, could not strictly be said to address whether the requirements in par 4007(1)(c) were satisfied at the time of the Tribunal’s decision”.[26] After stating the matters I have already set out from his Honour’s reasons, Tamberlin J determined this issue as follows:[27]
In my view, the circumstances in this case demonstrate that the Tribunal fell into jurisdictional error when it took the MOC’s opinion as correct because, applying the Full Court’s statement in Seligman 85 FCR at 127, that opinion could not be said to address whether the requirements in par 4007(1)(c) were satisfied at the time of the Tribunal’s decision. . . .
[25] [2008] FCA 367, at [18] (emphasis in original)
[26] [2008] FCA 367, at [18] (emphasis in original)
[27] [2008] FCA 367, at [19]-[21]
His Honour identified the considerations that led his Honour to these conclusions. These were: the extent of the time that had lapsed; there was evidence of improvement in the appellant’s health; and there was substantial disagreement between the medical opinions that were before the MRT. His Honour then concluded:[28]
On the basis of these three considerations, I am of the view that the Tribunal fell into jurisdictional error by taking as correct a report of the MOC which, contrary to Seligman 85 FCR at 127, does not address the appellant’s satisfaction of par 4007(1)(c) at the time of the Tribunal’s decision. The Tribunal’s recitation of Dr Chen’s evidence is cursory, and no substantive analysis of his opinions is engaged in; at no stage does the Tribunal state that there are significant inconsistencies between the opinions of Dr Chen and the MOC, nor does it explore those inconsistencies; and it registers no concern that the report of the MOC on which it relies is almost two years old at the time of its decision. Moreover, even though the Tribunal states early in its reasons that the Full Court’s decision in Seligman 85 FCR 115 is relevant to the appellant’s case, there is no evidence on the face of its reasons that the Tribunal considered in any way the applicability of that authority’s construction of reg 2.25A.
[28] [2008] FCA 367, at [25]
Relevant to one of the issues I must consider is his Honour’s response to the submissions the MRT had fallen into jurisdictional error by failing to seek an updated opinion from a MOC. His Honour said that, given the findings he had already made, it was not necessary to consider that submission. His Honour, however, said:[29]
If it were necessary, however, I would observe that, in my view, a failure by the Tribunal to make further inquiries does not, per se and in the absence of a statutory directive to make further inquiries, constitute jurisdictional error . . . Some extra element is needed to demonstrate that the decision of the Tribunal is affected by an erroneous interpretation or application of law. In this case, that element, and consequently the source of the Tribunal’s error, is supplied by the circumstances I have discussed above.
[29] [2008] FCA 367, at [26]
Jurisdictional fact?
It is not entirely clear from the judgment of Tamberlin J whether his Honour considered whether the MOC opinion satisfied the requirements of PIC 4007(1)(c) at the time the MRT made its decision is a jurisdictional fact – that is, a matter which the Court itself must decide or whether it was a matter for the Tribunal to decide. On the one hand his Honour’s finding that the MOC opinion in that case “could not be said to address whether the requirements in par 4007(1)(c) were satisfied at the time of the Tribunal’s decision” suggests his Honour considered whether a MOC opinion addresses the appellant’s satisfaction of PIC 4007(1)(c) at the time of the Tribunal’s decision is a jurisdictional fact. On the other hand, the passage from his Honour’s reasons I reproduced in paragraph 41 of these reasons suggests that his Honour considered that whether the MOC Opinion satisfied the requirements of PIC 4007(1)(c) at the time the Tribunal made its decision was a matter for the MRT to determine. In my opinion, the better view is that his Honour did not consider that whether or not the MOC Opinion satisfied the requirements of PIC 4007(1)(c) at the time the Tribunal made its decision is a jurisdictional fact.
If, contrary to what I have concluded, the question whether the MOC Opinion satisfied the requirements of PIC 4007(1)(c) at the time the Tribunal made its decision is a jurisdictional fact, the onus would be on the applicant to show that the MOC Opinion did not satisfy the requirements of PIC 4007(1)(c) at that time.[30] Here, the applicant relies or may be taken to rely on three matters.
[30] I briefly considered the question of onus of proof of jurisdictional facts in Tsimperlenios v Minister for Immigration & Anor [2018] FCCA 229, at [48]-[54]
The first is the substantial time that passed between the issue of the MOC Opinion and the date of the Tribunal’s decision. [31] That by itself, however, does not show that the circumstances on the basis of which the MOC Opinion had been issued had changed by the time the Tribunal made its decision such as to render the MOC Opinion irrelevant, non-current, or unreliable.
[31] Applicant’s Outline of Submissions, [37]
The second matter on which the applicant relies is Dr AM’s report, and in particular the opinion contained in that report that the applicant’s current treatment regimen, while effective, is out dated; and if Dr AM were to manage the applicant’s care in the future “we would aim to rationalise her medication and put her in a single tablet/day regimen”. This opinion, however, goes no further than expressing an intended course of action, namely, the rationalisation of the applicant’s medication. It does not set out material on the basis of which the likelihood of success of that aim is capable of being assessed. Further, and contrary to the applicant’s submissions, Dr AM expresses no opinion that could be said to conflict with those contained in the MOC Opinion. In particular, the statement that “we would aim to rationalise her medication and put her in a single tablet/day regimen”, being a statement of intention, is not inconsistent with opinions contained in the MOC Opinion. In those circumstances Dr AM’s opinions are not by themselves capable of supporting a finding that the circumstances on the basis of which the MOC Opinion had been issued had changed by the time the Tribunal made its decision such as to render the MOC Opinion irrelevant, non-current, or unreliable.
The third matter on which the applicant relies is the submission that the Tribunal could not have been certain there was no disagreement between the MOC Opinion and any other more current medical opinion, apart from that of Dr AM. The Tribunal, however, did not find, and therefore it did not rely on any finding, that there was no disagreement between the MOC Opinion and any other more current medical opinion, apart from that of Dr AM. When considering the currency of the MOC Opinion, the Tribunal considered whether there was any evidence of any change in the applicant’s condition, and in particular whether there was any improvement. That the Tribunal could not have been certain there was no disagreement among medical opinions about the applicant’s condition, therefore, is not a matter that is capable of supporting a finding that the circumstances on the basis of which the MOC Opinion had been issued had changed by the time the Tribunal made its decision such as to render the MOC Opinion irrelevant, non-current, or unreliable.
I have considered individually each of the matters on which the applicant relies, or on which she may be taken to rely, for submitting that the circumstances on the basis of which the MOC Opinion had been issued had changed by the time the Tribunal made its decision such as to render the MOC Opinion irrelevant, non-current, or unreliable. In my opinion, even if considered collectively, I am not satisfied that these matters establish that the circumstances on the basis of which the MOC Opinion had been issued had changed by the time the Tribunal made its decision.
Thus, even if the question whether the MOC Opinion satisfied the requirements of PIC 4007(1)(c) at the time the Tribunal made its decision is a jurisdictional fact, I am not satisfied on the basis of the evidence before me that the circumstances on the basis of which the MOC Opinion had been issued had changed by the time the Tribunal made its decision such as to render the MOC Opinion irrelevant, non-current, or unreliable.
Did the Tribunal consider whether MOC Opinion satisfied PIC 4007(1)(c) at time of decision?
As I have already noted, counsel for the applicant submits the Tribunal relied on the MOC Opinion “without investigation as to the opinion’s relevance, currency and reliability, or requiring a fresh MOC be obtained” in circumstances where the Tribunal ought to have done so.[32] I do not accept that submission.
[32] Applicant’s Outline of Submissions, [32]
The Tribunal itself said it “considered the currency of the Opinion of the MOC”.[33] The Tribunal set out in its reasons for decision the matters it considered. There are the date on which the MOC Opinion was issued (9 March 2015) and the amount of time that had “lapsed”; whether the applicant’s condition as stated in the MOC Opinion was likely to be permanent; whether there was any evidence of any change, and in particular evidence of improvement in the applicant’s health; whether the costs estimate stated in the MOC Opinion was made on a worst case scenario; and the Tribunal expressly found that the evidence before it “does not demonstrate a lack of currency or a lack of reliability of the MOC opinion”.[34]
[33] CB225, [43]
[34] CB225, [44]
That the Tribunal “considered the currency of the Opinion of the MOC” by itself distinguishes the facts before me from those Tamberlin J found in Applicant Y. In that case Tamberlin J found the MRT “registers no concern that the report of the MOC on which it relies is almost 2 years old at the time of the decision”.[35] There is another distinguishing feature. In Applicant Y Tamberlin J found the MRT’s recitation of medical evidence was “cursory”. That cannot be said of the Tribunal’s treatment of the medical evidence before it.
[35] [2008] FCA 117, [25]
Open for Tribunal to find MOC Opinion satisfied PIC 4007(1)(c) at time of decision?
The Tribunal found that the evidence before it “does not demonstrate a lack of currency or a lack of reliability of the MOC Opinion”.[36] I now consider whether it was not reasonably open to the Tribunal to so find.
[36] CB225, [44]
The applicant relies or may be taken to rely on the same matters I considered the applicant relied for submitting I should find the MOC Opinion did not address the requirements of PIC 4007(1) at the time the Tribunal made its decision. The question I address in this section of my reasons is whether any of those matters, considered alone or together, should lead me to find it was not reasonably open to the Tribunal to find the evidence before it did not demonstrate the MOC Opinion lacked currency or reliability.
The first of the matters on which the applicant relies (being the substantial time that passed between the issue of the MOC Opinion and the date of the Tribunal’s decision) is not by itself a ground for finding it was not reasonably open to the Tribunal to find that the evidence before it did not demonstrate the MOC Opinion lacked currency or reliability.
The second matter on which the applicant relies is Dr AM’s opinion that the applicant’s current treatment regimen, while effective, is out dated and, if Dr AM were to manage the applicant’s care in the future “we would aim to rationalise her medication and put her in a single tablet/day regimen”. As I have already noted, this opinion goes no further than expressing an intended course of action, namely, the rationalisation of the applicant’s medication; and it does not set out material on the basis of which the likelihood of success of that aim is capable of being assessed. In those circumstances, it was reasonably open to the Tribunal not to regard Dr AM’s opinion as evidence that the applicant’s condition had changed or that there was a real possibility that there would be a change in the future treatment of the applicant’s medical condition.
The third matter on which the applicant relies is the submission that the Tribunal could not have been certain there was no disagreement between the MOC Opinion and any other more current medical opinion, apart from that of Dr AM. As I have already found, the Tribunal did not find, and it therefore did not rely on, any finding to the effect that there was no disagreement between the MOC Opinion and any other more current medical opinions, apart from that of Dr AM. In those circumstances, that the Tribunal could not have been certain there was no disagreement between the MOC Opinion and any other more current medical opinions, apart from that of Dr AM, does not mean that it was not reasonably open to the Tribunal to find, as it did, that the evidence before it did not demonstrate the MOC Opinion lacked currency or reliability.
Whether considered alone or together, therefore, I am not satisfied that the matters on which the applicant relies, or which she may be taken to rely, support the conclusion that it was not reasonably open to the Tribunal to find that the evidence before it did not demonstrate the MOC Opinion lacked currency or reliability.
Consequences assuming Tribunal could not rely on MOC Opinion
In this section of my reasons, I consider what the consequences would be if, contrary to what I have found, the Tribunal could not have relied on the MOC Report because it lacked currency or reliability.
Counsel for the applicant submits that had the Tribunal found it could not have relied on the MOC Opinion, it would have been required or, at least, it would have been open to it to require a further opinion from a MOC. I do not accept these submissions.
a)First, it is doubtful the Tribunal has the power to seek an opinion from a MOC. Subregulation 2.25A(1) requires the Minister, not the Tribunal, to seek an opinion from a MOC.
b)Second, reg.5.41 of the Regulations prescribes a fee for obtaining an opinion of a MOC for the purpose of a review in circumstances where the delegate has relied in whole or in part on an opinion from a MOC. That suggests that the only person who can seek an opinion from a MOC for the purpose of a review before the Tribunal is the person who is required to pay the fee for obtaining it, namely, an applicant for review.
c)Third, in Applicant Y Tamberlin J found the MRT was not under a duty to seek a further opinion from a MOC.[37]
d)Fourth, assuming the Tribunal had power to seek a further opinion from the MOC, it acted reasonably in not seeking such opinion. As I have noted, there is a fee payable for obtaining such further opinion; the Tribunal informed the sponsor and his agent at the beginning of the hearing of the possibility of the applicant applying for a further opinion from a MOC; and the sponsor, through his agent, said that if the Tribunal is satisfied with the validity of the MOC’s opinion, the sponsor would proceed with the application for review without requesting a review of the MOC opinion. In those circumstances the Tribunal would have acted unreasonably by seeking a further opinion from the MOC with the consequence that the applicant would be liable to pay a fee for an opinion she did not seek.
[37] [2008] FCA 367, at [26]. The relevant passage from his Honour’s judgment is reproduced earlier in these reasons.
If, as I have concluded, the Tribunal had no power to seek a further opinion from the MOC, or, if it did have the power, it did not in the circumstances of this case act unreasonably by not exercising that power, the consequence of a finding by me that it was not open to the Tribunal to rely on the MOC Opinion would be that there would have been no basis on which the Tribunal could have made a different decision to that which it made. And that is because there would have been no opinion from a MOC on the basis of which, under reg.2.25A of the Regulations, the Tribunal could have determined whether the applicant satisfied the requirements of PIC 4007(1)(c). In other words, any error the Tribunal may have made by relying on the MOC Opinion was not material.
I am mindful that in certain circumstances the Tribunal may make a jurisdictional error if its decision is conditioned on some other person or agency lawfully doing or not doing something, and that condition is not satisfied at the time the Tribunal makes its decision.[38] Thus, the Tribunal would make a jurisdictional error if it relies on an invalid MOC opinion. The applicant, however, does not submit the MOC Opinion is invalid. The applicant’s claim assumes the MOC Opinion was valid at the time it was issued. The jurisdictional error the applicant claims the Tribunal made was that it relied on a MOC opinion that ceased to be current by the time the Tribunal made its decision.
[38] See, for example, Wei v Minister for Immigration and Border Protection [2015] HCA 51
Conclusion and disposition
The applicant has not succeeded on the ground and submissions on which she relies. I propose, therefore, to order that the application be dismissed. I will consider the question of costs at the time I pronounce my order.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 15 March 2019
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