Islam v Minister for Immigration
[2015] FCCA 2210
•18 August 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ISLAM & ORS v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2210 |
| Catchwords: STATUTORY INTERPRETATION – Power to make regulations – specific regulation making power – whether regulation requiring administrative decision-maker to accept medical officer’s opinion as correct is valid. |
| Legislation: Acts Interpretation Act 1901 (Cth), ss.19, 19A, 19B Legislative Instruments Act2003 (Cth), ss.5, 13(1) and (2) Migration Act 1958 (Cth), Part 5, Division 5, ss.29, 65, 348(1), 349(1), 359(1), 359A, 363(1), 476, 504, 505 Migration Laws Amendment Bill (No. 2) 1992 (Cth) |
| ApplicantNAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1; (2004) 79 ALJR 397; (2004) 211 ALR 660; (2004) 82 ALD 1 Applicant VEAL of 2002 vMinister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88; 222 ALR 411; (2005) 80 ALJR 228; (2005) 87 ALD 512 Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3; (2013) 249 CLR 1; (2013) 87 ALJR 289; (2013) 295 ALR 197 Blair v Minister for Immigration & Multicultural Affairs [2001] FCA 1014 Bui v Minister for Immigration & Multicultural Affairs (1999) 85 FCR 134 Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQSv Cross [2012] HCA 56; (2012) 248 CLR 378; (2012) 87 ALJR 131; (2012) 293 ALR 412 Foley v Padley (1984) 154 CLR 349; (1984) 58 ALJR 454; (1984) 54 ALR 609 Imad v Minister for Immigration & Multicultural Affairs [2001] FCA 1011 JP1 & Ors v Minister for Immigration & Citizenship & Anor [2008] FMCA 970; (2008) 220 FLR 37 Minister for Aboriginal Affairs v Peko-WallsendLtd (1986) 162 CLR 24; (1986) 60 ALJR 560; (1986) 66 ALR 299 Minister for Immigration & Border Protection v MZYTS [2013] FCAFC 114; (2013) 136 ALD 547 Minister for Immigration & Citizenship v Li [2012] FCAFC 74; (2012) 202 FCR 387; (2012) 289 ALR 210; (2012) 127 ALD 238 Minister for Immigration & Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 139 ALD 181 Minister for Immigration & Citizenship v Maman[2012] FCAFC 13; (2012) 200 FCR 30; (2012) 286 ALR 680; (2012) 125 ALD 379 Minister for Immigration & Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594; (2011) 85 ALJR 327; (2011) 273 ALR 223; (2011) 119 ALD 1 Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123; (2009) 259 ALR 429; (2009) 111 ALD 15 Minister for Immigration & Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164; (2010) 85 ALJR 306; (2010) 273 ALR 122; (2010) 119 ALD 446 Minister for Immigration & Multicultural Affairs v Seligman (1999) 85 FCR 115; (1999) 164 ALR 173; (1999) 55 ALD 374 Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583 Minister for Immigration & Multicultural & Indigenous Affairs v X [2005] FCAFC 209; (2005) 146 FCR 408 Pillay v Minister for Immigration & Anor [2009] FMCA 517 Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; (1998) 72 ALJR 841; (1998) 153 ALR 490 Ramlu v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1735; (2005) 195 FLR 203 Reese v Webber [2011] FCAFC 33; (2011) 192 FCR 254; (2011) 276 ALR 196 Reynolds v Minister for Immigration & Anor [2010] FMCA 6; (2010) 237 FLR 7 Robinson v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1626; (2005) 148 FCR 182 South Australia v Tanner (1989) 166 CLR 161; (1989) 63 ALJR 149; (1989) 83 ALR 631; (1989) 67 LGRA 84 Suh v Minister for Immigration & Citizenship [2009] FCAFC 42; (2009) 175 FCR 515; (2009) 108 ALD 470 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs[2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 Tomson v Minister for Finance and Deregulation [2013] FCA 664; (2013) 136 ALD 610 Triandafillidou v Minister for Immigration [2004] FMCA 20 X v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 429 |
| First Applicant: | MOHAMMAD NAZRUL ISLAM |
| Second Applicant: | SHAHINOOR BEGUM |
| Third Applicant: | HOUMYRA ISLAM |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 79 of 2013 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 26 February 2014 |
| Date of Last Submission: | 26 February 2014 |
| Delivered at: | Perth |
| Delivered on: | 18 August 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Hooker |
| Solicitor for the Applicant: | Shahid Shakur |
| Counsel for the First Respondent: | Dr K Stern SC |
| For the Second Respondent: | Submitting appearance save as to costs. |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the name of the First Respondent be amended to “Minister for Immigration & Border Protection”.
That the name of the Second Respondent be amended to “Administrative Appeals Tribunal”.
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 79 of 2013
| MOHAMMAD NAZRUL ISLAM |
First Applicant
| SHAHINOOR BEGUM |
Second Applicant
| HOUMYRA ISLAM |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants seek judicial review (“Judicial Review Application”) of the decision of the then Migration Review Tribunal, now the Administrative Appeals Tribunal, (the “Tribunal” and “Tribunal Decision” respectively) made on 21 March 2013: Court Book (“CB”) 376-382, affirming the decision dated 6 August 2012 of a delegate (“Delegate” and “Delegate’s Decision” respectively): CB 281-295, of the then Minister for Immigration and Citizenship, now the Minister for Immigration and Border Protection (“Minister”), under s.65 of the Migration Act 1958 (Cth) (“Migration Act”), not to grant the applicants Skilled (Residence) (Class VB) visas (subclass 886 visa) (“Skilled Residence Visas”). The reason for refusal was that the Delegate was not satisfied that the son of the first and second applicants, Shariful Islam Hanjala (Shariful), met the applicable health criteria in cl.4005(1)(c)(ii)(A) in Part 1 of Schedule 4 to the Migration Regulations1994 (Cth) (“Migration Regulations”) being part of Public Interest Criteria 4005 (“PIC 4005”). This, in turn, flowed from an opinion of a Medical Officer of the Commonwealth (“MOC”) dated 29 June 2012 that Shariful did not satisfy PIC 4005(1)(c)(ii)(A) (“MOC’s June 2012 Medical Opinion”): CB 363-364.
Grounds of application
The Judicial Review Application filed on 24 April 2013 raises two separate grounds of alleged jurisdictional error in the Tribunal Decision. In summary, those grounds allege that the Tribunal:
a)erred in adopting and applying a decision, being the MOC’s June 2012 Medical Opinion, that was itself affected by jurisdictional error; and
b)failed to review the Delegate’s Decision consistently with its statutory duty under s.348 of the Migration Act.
Each of the particularised grounds is set out separately and in full below: see [13] and [16] below.
Background
On 16 February 2009 the first applicant applied for one or more visas on his own behalf, and on behalf of other members of his family unit (which unit includes the second and third applicants) (together “the applicants”): CB 1-31. For each applicant the specific visa sought on merits review before the Tribunal was a Skilled Residence Visa.
To be entitled to the Skilled Residence Visa Shariful had to satisfy the requirements of PIC 4005. That “satisfaction” is a necessary element of a grant of the Skilled Residence Visas sought under clause 886.228 of the Migration Regulations.
Earlier opinions of MOCs concerning Shariful, dated 16 March 2010: CB 137-138 (“MOC’s March 2010 Medical Opinion”) and 14 March 2011: CB 173-174 (“MOC’s March 2011 Medical Opinion”) resulted in a refusal to grant a Student Visa to Shariful because the requirements of PIC 4005(1)(c)(ii)(A) were not satisfied.
An application for judicial review of those two earlier administrative decisions was successful, jurisdictional error being conceded by the Minister and prerogative relief being granted, by consent, by the Federal Magistrates Court on 4 October 2011: CB 171-172 (“FMC 2011 Orders”).
A further opinion was obtained from an MOC dated 14 October 2011 (“MOC’s October 2011 Medical Opinion”): CB 173-174. The MOC’s October 2011 Medical Opinion was that Shariful did not meet the requirements of PIC 4005.
As a consequence of new medical information from a medical practitioner, Dr Walsh, who provided a medical opinion dated 26 April 2012 to the family: CB 232 (“Dr Walsh’s Opinion”), which was provided to the Delegate, a further MOC medical opinion was sought by the then Department of Immigration and Citizenship: CB 233-234 and 286. The MOC’s June 2012 Medical Opinion was accordingly provided (by the same doctor who had provided the MOC’s October 2011 Medical Opinion) and was as follows:
29/06/2012
FORM 884: OPINION OF A MEDICAL OFFICER OF THE COMMONWEALTH
THE APPLICANT DOES NOT MEET THE HEALTH REQUIREMENT
HAP Id: 3043250
Name of Applicant: SHARIFUL ISLAM HANJALA
Birth Date: 08/01/2004
Sex: MALE
Processing Office: ADELAIDE OFFSHORE CENTREVisa Sub Class: 886
The applicant has been assessed against Public Interest Criterion (PIC) 4005 [see attached extract] for the period of a permanent stay in Australia.
The applicant does not satisfy sub-subparagraph PIC 4005(1)(c)(ii)(A) in Schedule 4 to the Migration Regulations.
The applicant is a 8 year old person with:
- Moderate developmental delayThis condition is likely to be Stable.
I consider that 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.
These services would be likely to include:
Commonwealth disability services
State disability services
Special education servicesState disability services
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.
In preparing this opinion, I have had regard to the information available to date concerning the applicant, including, but not limited to Dr Walsh (dated 26[/]4/2012) and psychologist Rachel Gallagher (Dated 18/9/2011 and 3/12/2010) and previous MOC decision dated 14/10/2011.
Medical Officer of the Commonwealth
Position Number: MHS047
A Medical Officer of the Commonwealth for the purposes of providing an opinion on whether prescribed health criteria under the Migration Regulations 1994 are met.
CB 363-364.
The Delegate’s Decision refused the applicants’ applications for the Skilled Residence Visas: CB 281-295. On 8 August 2012 the applicants applied to the Tribunal for merits review of the Delegate’s Decision: CB 309-319.
On 18 March 2013 the Tribunal Decision affirmed the Delegate’s Decision: CB 376-382.
Tribunal Decision
In the Tribunal Decision the Tribunal:
a)noted that the Delegate’s Decision to refuse to grant Skilled Residence Visas was on the basis of non-satisfaction of cl.886.228(b) of Schedule 2 to the Migration Regulations because the health criteria in PIC 4005(1)(c)(ii)(A) was not met by a member of the family unit, who was not an applicant for a Skilled Residence Visa, namely Shariful: CB 377 at [3];
b)referred to the relevant law including cl.886.228 of Schedule 2 to the Migration Regulations, the definition of “member of the family unit” set out in reg.1.12 of the Migration Regulations (for the purposes of cl.886.228 of Schedule 2 to the Migration Regulations), reg.2.25A of the Migration Regulations and PIC 4005: CB 377-379 at [5], [6], [7] and [9];
c)observed (critically, for the purposes of the Judicial Review Application) that:
In deciding whether a person meets the requirements of PIC 4005(1)(a), (1)(b) or (1)(c), the Tribunal is to take the opinion of the Medical Officer of the Commonwealth (MOC) to be correct: r.2.25A(3).
CB 378 at [8], and the Tribunal set out reg.2.25A of the Migration Regulations at CB 379;
d)noted that the MOC’s June 2012 Medical Opinion was on the Departmental file and that:
The MOC assessed Shariful Islam Hanjala … against PIC 4005 for the period of a permanent stay in Australia. The MOC had regard to the information provided by the applicants including reports from Dr Walsh (dated 26 April 2012) and psychologist Rachel Gallagher (dated 18 September 2011, 3 December 2010 and 10 February 2010) and a previous MOC opinion dated 14 October 2011. The MOC found that Shariful is an 8 year old person with moderate developmental delay, and that this condition is likely to be stable. The MOC considered that a hypothetical person with this disease or condition, at the same severity of Shariful, would be likely to require health care or community services during the intended period of permanent stay. These services would likely include Commonwealth disability services; State disability services and Special education services. 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. The MOC gave the opinion that Shariful did not satisfy 4005(1)(c)(ii)(A).
CB 379-380 at [10];
e)noted that on 14 January 2013 the Tribunal wrote a letter pursuant to s.359A of the Migration Act to the applicants: CB 346, inviting them to comment upon the MOC’s June 2012 Opinion that Shariful did not meet PIC 4005(1)(c)(ii)(A), and that that was relevant because that information, if relied upon by the Tribunal, would lead the Tribunal to find that the applicant failed to satisfy cl.886.228 of Schedule 2 to the Migration Regulations, and would require the Tribunal to affirm the Delegate’s Decision: CB 380 at [12];
f)noted that a response to the Tribunal’s 14 January 2013 letter was received from the applicants’ representative, dated 25 February 2013, asking that the Tribunal remit the application to the Department with the direction that Shariful satisfied PIC 4005(1)(c)(ii)(A) on the basis that the Tribunal ought not regard the MOC’s June 2012 Opinion as correct on the basis that that it gave no overt consideration or analysis to any of the content of opinions contained in the reports of Dr Walsh dated 26 April 2012, and the psychologist, Ms Rachel Gallagher dated 4 January 2011 and 3 December 2010: CB 380 at [13];
g)noted that the applicants’ representative also argued that the FMC 2011 Orders in respect of Shariful’s Subclass 572 student visa application, where jurisdictional error was found on the basis of incorrect acceptance of the MOC’s March 2010 and March 2011 Medical Opinions meant that the Tribunal might regard that it was not bound to accept the MOC’s June 2012 Medical Opinion as correct and instead find that PIC 4005 is met and set aside the Delegate’s Decision: CB 380 at [14];
h)observed that:
i)the argument concerning the FMC 2011 Orders had no applicability where the Tribunal’s view was that the MOC’s June 2012 Medical Opinion referred to the correct criterion, correctly reflected assessment of costs and access to health care or community services during the relevant period, and asked the correct questions based on the terms of the relevant PIC, which the Tribunal considered the MOC’s June 2012 Medical Opinion did: CB 381 at [16]; and
ii)the Tribunal offered the parents of Shariful, the first and second applicants, the ability to obtain a new MOC opinion which would then be binding on the Tribunal, but they both declined: CB 381 at [17]; and
i)ultimately concluded that the Skilled Residence Visa application did not meet the criteria in cl.886.228 of Schedule 2 to the Migration Regulations and therefore affirmed the Delegate’s Decision not to grant the Skilled Residence Visa: CB 382 at [23]-[24]. In so doing, the Tribunal had regard to its findings and reasons which were as follows:
18.As the applicant is the primary applicant in this application, the Tribunal finds that he is the family head: cl.886.228; r.1.2(1). The Tribunal finds, relying on the applicant’s evidence that Shariful is a dependent child of him and hence Shariful is a member of the family unit of the applicant who is not an applicant for this 886 visa application: cl.886.228(b); r.1.12(1)(b).
19.The Tribunal finds that the MOC opinion dated 29 June 2012 stated an opinion that the applicant’s son Shariful does not meet the prescribed health criteria set out in PIC 4005(1)(c)(ii)(A). This is because the MOC considered that a hypothetical person with moderate developmental delay, at the same severity of Shariful, would be likely to require health care or community services during the intended period of permanent stay. These services would likely include Commonwealth disability services; State disability services and Special education services. 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.
20.The Tribunal notes the representative’s argument that the Tribunal may not regard that it is bound to accept the MOC opinion as correct in this case relying on the Consent Order of the FMCA (Case No. PEG144/2011), in relation to Shariful in connection with the applicant’s Australian student visa application, which is a temporary stay application, in which jurisdictional error was found. The Tribunal does not accept the representative’s argument because it considers, from the text of the Consent Order which the representative provided, that the jurisdictional error in Case No. PEG 144/2011 was found on the basis that the MOC’s opinion in that case incorrectly considered the relevant period or stay as [a] permanent stay when the relevant period of stay ought to have been considered as temporary as the visa application was for a student visa.
21.The Tribunal has had regard to the decisions in Robinson v MIMIA (2005) 148 FCR 182 and Ramlu v MIMIA [2005] FMCA 1735 and is satisfied that the MOC in the present case did not apply the wrong test. Specifically, the Tribunal is satisfied that the MOC opinion identifies Shariful’s condition to which the public interest criteria have been applied, has ascertained the form or level of the conditions suffered by the applicant and has applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition.
22.The Tribunal is bound to accept the opinion of the MOC to be correct for the purposes of deciding whether the applicant satisfies the relevant health criterion: r.2.25A(3). Accordingly, based on the opinion of the MOC dated 29 June 2012, the Tribunal finds that Shariful Islam Hanjala, who is a member of the family unit of the applicant and who is not an applicant for the visa, fails to meet PIC 4005(1)(c)(ii)(A). Consequently, the applicant fails to satisfy cl.886.228(b).
CB 381-382 at [18]-[22].
Submissions
The Court sets out below the grounds of the Judicial Review Application and the parties’ submissions in relation thereto, in some detail, before considering those submissions.
Ground 1
Ground 1 alleges that the Tribunal committed jurisdictional error in that it:
Adopted and applied a decision of the Medical Officer of the Commonwealth which was itself affected by jurisdictional error and accordingly of no effect in law.
Particulars of Jurisdictional Error of the Medical Officer of the Commonwealth
The Medical Officer of the Commonwealth, in an opinion of 29 June 2012, purporting to apply regulation 4005 (c)(ii)(A) of the Migration Regulations 1994 :
(a)failed properly to address the statutory question posed by regulation 4005(c)(ii)(A), in particular omitting to address the meaning of the statutory terms “health care or community services”, “significant cost” and “Australian community”;
(b)failed to undertake any proper, genuine or realistic inquiry to:
(i)ascertain the form or level of the condition suffered by the Applicant; and
(ii)apply the relevant statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition.
(c)failed properly to take into account considerations he or she was bound to take into account, namely the substance of the opinions of each of Dr Peter Walsh (in a report dated 26 April 2012), Ms Gallagher (in reports dated 18 September 2011 and 3 December 2010) and an pervious (sic) opinion of a Medical Officer of the Commonwealth dated 14 October 2011 and the the reasoning expressed in those earlier opinions;
(d)provided a level of reasoning in support of his or her conclusions which was wholly inadequate to enable an understanding of how the statutory task had been performed.
Applicants’ submissions
The applicants submitted that:
a)the first ground of review rests in part on propositions that the MOC in the MOC’s June 2012 Medical Opinion, committed serious errors including a failure to undertake any proper, genuine or realistic inquiry into matters it was necessary to inquire into by virtue of the text of PIC 4005(c)(ii)(A), and failed properly to take into account considerations that the MOC was bound to take into account;
b)the failure to take into account mandatory considerations as a category of jurisdictional error is well established and Minister for Aboriginal Affairs v Peko-WallsendLtd (1986) 162 CLR 24; (1986) 60 ALJR 560; (1986) 66 ALR 299; CLR at 40-42 per Mason J (“Peko-Wallsend”) remains representative of the principles to be applied and the approach to statutory construction necessary to discern considerations which an administrative decision-maker is bound to take into account;
c)as to the category of jurisdictional error of failure to undertake any “proper, genuine or realistic inquiry” this is less well established. The High Court in Minister for Immigration & Citizenship v SZJSS 2010] HCA 48; (2010) 243 CLR 164; (2010) 85 ALJR 306; (2010) 273 ALR 122; (2010) 119 ALD 446 at [29] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ (“SZJSS”) identified reasons why care must be taken in applying a ground of that character so as to reach a result that does little more than express emphatic disagreement with the decision of an administrative decision-maker or otherwise slide impermissibly into merits review. There is nonetheless subsequent Federal Court authority for the recognition of the ground and its potential application to administrative decisions undertaking merits review: Reese v Webber [2011] FCAFC 33; (2011) 192 FCR 254; (2011) 276 ALR 196 at [68]-[70] per Jacobson, Flick and Reeves JJ, and compare, in the context of judicial review under the Migration Act, Minister for Immigration & Border Protection v MZYTS [2013] FCAFC 114; (2013) 136 ALD 547 at [54] per Kenny, Griffiths and Mortimer JJ. Another example, albeit (as with Reese v Webber) in a different statutory context is Tomson v Minister for Finance and Deregulation [2013] FCA 664; (2013) 136 ALD 610 at [48]-[50] per Rares J;
d)even if it be assumed, contrary to ground 2 and all that is advanced in support of it, that reg.2.25A(3) of the Migration Regulations had a meaning that undermined, or even constrained, the powers of the Tribunal in undertaking a review of the Delegate’s Decision, the jurisdictional task purportedly carried out by the Tribunal did not occur because, in short, the MOC’s June 2012 Medical Opinion was an exercise of such superficiality, devoid of any meaningful content, as to not involve any proper, genuine or realistic consideration of the matters so referred. That fundamental error became the jurisdictional error of the Tribunal when it wholly adopted, without further consideration, the MOC’s June 2012 Medical Opinion;
e)correspondence from the Delegate to the MOC of 18 May 2012: CB 233-234, referred to the MOC’s October 2011 Medical Opinion: CB 173-174, and enclosed responses from the applicants to the Department subsequent to the FMC 2011 Orders, together with “the medicals for” Shariful: CB 233-234. The MOC was asked by the Delegate to “consider the information provided and review the client’s health and provide a decision”. Although the referral did not refer to reg.2.25A(1) or (2) of the Migration Regulations, it may be assumed for the purposes of argument that the Delegate on behalf of the Minister was “seeking” an opinion from the addressee as contemplated by either or both of reg.2.25A(1) or (2) of the Migration Regulations;
f)the response to the Delegate, being the MOC’s June 2012 Medical Opinion is a document remarkable for its brevity and for the paucity of any content. After asserting an assessment of Shariful against PIC 4005, the author moves immediately to a conclusion that the applicable criteria are not satisfied. The conclusion is seemingly asserted to follow from the very fact of Shariful then having a condition of moderate developmental delay, said to be likely to be stable. No reasoning is offered, nor any medical opinions advanced, about the nature of Shariful’s moderate developmental delay, and why or how the condition may require services of the kind listed;
g)no assessment is offered by the MOC of the particular kind of disability and education services that Shariful’s condition is likely to cause him to require. What, then, would be the nature or order of the concluded “significant cost” to the Australian community? At what point does a given cost, in the context of the issues of public health that PIC 4005 addresses, become a “significant” cost? These are potentially subtle questions involving an application of an asserted meaning of the statutory expressions to an expert opinion about the nature of a given medical condition, the way in which certain services provided by Commonwealth and State executive governments may ameliorate it, and the social cost accordingly. The answers to those questions are thus matters on which reasonable minds may differ. However, in the view taken by the MOC’s June 2012 Medical Opinion it is left entirely to the reader to guess because the relevant issues are not even identified, let alone addressed and analysed so as to explain the conclusion;
h)compounding matters even further, the MOC’s June 2012 Medical Opinion asserts that the MOC has “had regard to the information available to date” about Shariful, “including, but not limited to” the reports specified. But the opinion then abruptly ends. Nothing is said about what it was in Dr Walsh’s Opinion and the reports by psychologist Rachel Gallagher (“Ms Gallagher’s Reports”), or of anyone else, that was considered, and how those opinions were assessed, or weighed together with the MOC’s own opinions. Moreover, because the MOC’s June 2012 Medical Opinion does not identify what the relevant issues are that are being addressed, and how those issues interrelate with the nature of Shariful’s medical condition and an ultimate conclusion of “significant cost to the Australian community” the reader is utterly uninformed about what the MOC opines on any of those important matters of content, both personally and in regard to what has been expressed in reports by other medical and allied health professionals; and
i)because the Tribunal considered itself bound by the MOC’s June 2012 Medical Opinion, it did not itself identify, let alone examine afresh (or at all) any of these important issues, and it did not in any meaningful sense ultimately review the conclusion of the MOC. Thus the failure of the MOC to give any proper, genuine or realistic consideration to the issues that necessarily required consideration, manifested by the MOC’s June 2012 Medical Opinion which was adopted and applied by the Tribunal, became a failure of that same character on the part of Tribunal.
Minister’s submissions
The Minister submitted that:
a)the Minister may grant a visa under the power in s.29 of the Migration Act. Section 65 of the Migration Act provides that the Minister cannot grant a visa unless satisfied (amongst other criteria) that the health criteria for the visa, as prescribed by the Migration Act or the Migration Regulations, have been satisfied;
b)members of the family unit of the first applicant for a subclass 886 visa must satisfy a number of criteria including, at cl.886.228 of Schedule 2 to the Migration Regulations, PIC 4005 “unless the Minister is satisfied that it would be unreasonable to require the person to undergo assessment in relation to that criterion”. In this case there is no determination that it would be unreasonable to require Shariful to undergo such assessment, and, indeed, he has been assessed by reference to PIC 4005 on a number of different occasions;
c)PIC 4005(1)(c) requires that the applicant is free from a disease or condition in relation to which:
(i) a person who has it would be likely to:
(A) require health care or community services; or
(B) meet the medical criteria for the provision of a community service;
during the period described in subclause (2) [the period for which the Minister intends to grant the visa]; 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;
d)regulation 2.25A(1) of the Migration Regulations provides that the Minister must seek the opinion of an MOC on whether a person (whether the applicant or another person) meets the requirements of (amongst other paragraphs) PIC 4005, subject to exceptions which are not presently relevant;
e)regulation 2.25A(3) of the Migration Regulations provides that:
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.
f)if the Minister is to take the opinion of the MOC to be correct as set out above, it necessarily follows that the Tribunal is similarly constrained when reviewing the correctness of the Delegate’s Decision;
g)the relevant regulation making power is s.505 of the Migration Act. This provides that regulations may provide that the Minister, when required to decide whether an applicant for a visa of the class satisfies the criterion, is to get a specified person to give an opinion on a specified matter and is to take that opinion to be correct for the purposes of deciding whether the applicant satisfies the criterion;
h)the proper approach to PIC 4005(1)(c) has been considered in a number of cases. The following principles emerge:
i)the requirement that the Minister take the opinion of the MOC to be correct (under reg.2.25A(3) of the Migration Regulations) applies if and to the extent that the MOC’s opinion is an opinion of the kind authorised by the Migration Regulations: Minister for Immigration & Multicultural Affairs v Seligman (1999) 85 FCR 115; (1999) 164 ALR 173; (1999) 55 ALD 374 at [66] per French, North and Merkel JJ (“Seligman”);
ii)in Seligman at [49] per French, North and Merkel JJ, the Full Court of the Federal Court identified that the obligation of the Minister to take the opinion of the MOC to be correct was subject to three qualifications:
A.the opinion must be the opinion of the MOC on whether the person meets the requirements of the relevant paragraph of Schedule 4 of the Migration Regulations;
B.the Minister is to take the opinion as correct for the purposes of deciding whether a person meets a requirement or satisfies a criterion; and
C.the opinion must address satisfaction of the requirements at the time of the Minister’s decision;
iii)a proper construction of the PIC 4005(1)(c) requires the MOC to ascertain the form or level of condition suffered by the applicant in question and then to apply the statutory criteria by reference to a hypothetical person who suffers from that form or level of condition: Robinson v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1626; (2005) 148 FCR 182 at [43] per Siopis J (“Robinson”), declining (at [55] per Siopis J) to follow X v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 429 (“X”) at [14] per Finkelstein J;
iv)the question for the MOC is whether or not a disease or condition is such that it would be likely to require health care or community services and that provision of health care or community services would result in a significant cost to the Australian community. The intention behind the regulation is that one would not expect a medical officer to inquire into the financial circumstances of the particular applicant or any family members or friends or other sources of financial assistance: Imad v Minister for Immigration & Multicultural Affairs [2001] FCA 1011 (“Imad”) at [13-14] per Heerey J. In Imad the Federal Court held that an MOC is not required to take any account of the fact that an applicant’s family would pay for or provide for the costs of an applicant’s treatment, and is in fact specifically directed by PIC 4005 not to take account of such matters. Imad was applied by this Court in Reynolds v Minister for Immigration & Anor [2010] FMCA 6; (2010) 237 FLR 7 at [115] per Lucev FM rejecting a submission that the MOC should have taken into account the prospect of the family providing care required. It is thus not for the MOC to consider how an identified need for services will in fact be likely to be met;
v)whether a disease or condition has characteristics that require ongoing health care or support services for the person suffering from it is a matter of medical judgment and the assessing of whether the provisions of such health care or support services involves a significant cost is a judgment about the nature of the disease or condition rather than an attempt to relate it to precise health care provisions or particular community services: Seligman at [53] per French, North and Merkel JJ;
vi)the MOC is required to form their own opinion even if it conflicts with, or is totally inconsistent with, evidence submitted on behalf of an applicant, and the MOC is not required to give reasons for rejecting other evidence: Blair v Minister for Immigration & Multicultural Affairs [2001] FCA 1014 (“Blair”) at [33] and [36] per Carr J;
vii)there is no obligation upon an MOC to specify the cost that he considers to be significant for the purposes of PIC 4005 and an opinion of an MOC is not invalid by reason of an MOC not specifying that cost: Blair at [38] and [46] per Carr J; JP1 & Ors v Minister for Immigration & Citizenship & Anor [2008] FMCA 970; (2008) 220 FLR 37 at [15] and [32] per Riley FM (“JP1”);
viii)the opinion of the MOC is to be read beneficially and as a whole: Blair at [42] per Carr J;
ix)the use of imprecise language in an opinion of an MOC is not of itself a basis to infer error: X at [15] per Finkelstein J ; and
x)the purpose of PIC 4005 is chiefly to minimise strain on the resources of the Australian healthcare system, and indirectly, perhaps, also to protect public health: X at [13] per Finkelstein J (overturned on another ground on appeal: Minister for Immigration & Multicultural & Indigenous Affairs v X [2005] FCAFC 209; (2005) 146 FCR 408);
i)brevity is no basis for a finding that an opinion of an MOC is flawed. In Bui v Minister for Immigration & Multicultural Affairs (1999) 85 FCR 134 (“Bui”) the reasons of the MOC comprised “this 23 year old male applicant has been diagnosed as “Borderline Intellectual functioning” with an IQ+ 60-70. Due to this therefore it is expected that the a/n will be a cost to the Australian community (in special training and financial support)”: Bui at [8] per French, North and Merkel JJ. The Full Court of the Federal Court held that there was nothing before them that showed that the MOC had failed to follow a procedure mandated by law: Bui at [39] per French, North and Merkel JJ;
j)as set out above, the question is whether the Tribunal fell into jurisdictional error in treating the MOC’s June 2012 Medical Opinion as an opinion authorised by the Migration Regulations;
k)the MOC’s June 2012 Medical Opinion contained the following essential elements:
i)it was contemporaneous. The Delegate’s Decision was dated 6 August 2012 and the Tribunal Decision was dated 18 March 2013. There is no suggestion of any change in Shariful’s condition;
ii)it set out that the MOC had had regard to available information to date including, but not limited to Ms Gallagher’s Reports, Dr Walsh’s Opinion, and the MOC’s October 2011 Medical Opinion;
iii)the MOC identified that Shariful was an 8 year old person;
iv)the MOC identified that Shariful had moderate developmental delay that was likely to be stable. The MOC thus identified both the nature and extent of the condition to which the MOC’s June 2012 Medical Opinion related;
v)the MOC considered the likely requirement for health care or community services by reference to a hypothetical person with “this disease or condition, at the same severity as the applicant”, and determined that such person would be likely to require health care or community services during the period specified which was the period of a permanent stay in Australia;
vi)the MOC identified that “those services” would be likely to include Commonwealth disability services, Special education services and State disability services; and
vii)the MOC found that provision of these services would be likely to result in a significant cost to the Australian community in the areas of health care or community services or both;
l)the context for the MOC’s June 2012 Medical Opinion included:
i)Ms Gallagher’s March 2010 Report: CB 134-136, in which she identifies that Shariful presented with an intellectual disability and that he would require speech therapy, and assistance in the school setting to further develop his language and communication skills and social skills. In Ms Gallagher’s December 2010 Report: CB 1-2, Ms Gallagher again identified that Shariful presented with an intellectual disability and that there was also concern about motor skill development. She said it was probable that Shariful would require some support as he got older, and referred to “the additional expenses Shariful requires to assist with his development.” In Ms Gallagher’s September 2011 Report: CB 202-203, Ms Gallagher identified that Shariful had limited communication skills and did not present with expressive language skills during her assessment. Ms Gallagher also identified that at that time Shariful had a private therapist and also had incidental teaching from his parents. In her view, as at that time, it was probable that Shariful would require some support as he got older;
ii)Dr Walsh’s Opinion: CB 232 which sets out that Shariful had an intellectual disability. Dr Walsh identified that in the near future Shariful would be attending a school associated with the Sir David Brand Centre. The applicants’ submissions before the Tribunal identify this as a school that caters for students with special needs: CB 371 at [16]. This submission also includes the assessment by the principal of that school that Shariful will need support into the future. In Dr Walsh’s Opinion, he said it was difficult to assess Shariful’s level of intellectual disability, but it would be at least “of modern [sic: moderate?] severity.” In his view Shariful could continue in a mainstream school or attend an educational support unit depending upon his parents’ preference. Dr Walsh said it was difficult to predict whether Shariful could be employed; and
iii)the MOC’s October 2011 Medical Opinion that Shariful had significant intellectual disability which was lifelong in nature: CB 174;
m)the evidence before the MOC goes to the way in which a need for specialist medical and schooling services would be met and is premised upon there being such a need. This evidence therefore supports the MOC’s June 2012 Medical Opinion;
n)the applicants’ Skilled Residence Visa application dated 6 September 2011 identified Shariful as having an intellectual disability, particularised as “developmental delay”: CB 156-158;
o)in these circumstances, it is clear that the MOC’s June 2012 Medical Opinion, notwithstanding its brevity, was an opinion as authorised by the Migration Regulations. As set out above, brevity does not undermine the lawfulness of an opinion of the MOC; and
p)there was no error in the Tribunal’s approach to the MOC’s June 2012 Medical Opinion. There is no basis for a conclusion that the Tribunal failed to give proper, genuine and realistic consideration to any matter which went to the correctness of the Delegate’s Decision.
Ground 2
Ground 2 asserts that the Tribunal committed jurisdictional error in that it:
Failed to undertake a review of the First Respondent’s delegate’s decision of 6 August 2012 as it was required to undertake pursuant to s 348(1) of the Migration Act 1958 (the Act).
Particulars of Second Respondent’s Failure to Undertake a Review
(a)The Second Respondent in substance did no more than adopt the purported conclusion of the Medical Officer of the Commonwealth of 29 June 2012 and in effect considered itself thereby bound to affirm the decision of the delegate.
(b)Given the meaning and operation of s348(1), no delegated legislation made pursuant to s504 of the Act can be construed as having that consequence.
(c)Regulation 2.25[A](3) is either:
(i)invalid as being ultra vires the Act; or
(ii)inoperative to the extent it derogates from the obligation of the Second Respondent to conduct a review;
alternatively:
(iii)must be read down so as to operate compatibly with s348(1).
Applicants’ submissions
The applicants submitted that:
a)the Tribunal Decision sets out salient aspects of material provisions of the Migration Regulations: CB 377-379 at [5]-[8]. Of particular relevance are cl.886.228 of Schedule 2, and regs.1.12 and 2.25A of the Migration Regulations and PIC 4005;
b)of further relevance are the text of:
i)section 348 of the Migration Act, construed and applied in its statutory context, conferring the duty on the Tribunal to undertake a “review” of a merits-reviewable decision, as the Delegate’s Decision was; and
ii)section 504 of the Migration Act, empowering the making of regulations, not inconsistent with the Migration Act, prescribing all matters which by the Migration Act is required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to the Migration Act, is of critical importance to ground 2, and s.504(1)(a)-(l) of the Migration Act goes on to provide for specific matters that may be the subject of regulations without limiting the generality of s.504(1) of the Migration Act;
c)the Legislative Instruments Act 2003 (Cth) (“LI Act”) is also applicable. The Migration Regulations that were cited by the Tribunal in its Tribunal Decision constitute a “legislative instrument” within the meaning of s.5 of the LI Act, being an instrument in writing:
i)that is of a legislative character; and
ii)that is or was made in the exercise of a power delegated by the Parliament,
but nothing in ss.6, 7 or 9 of the LI Act renders the exceptions to that general definition in s.5(1) of the LI Act inapplicable;
d)relevantly to the present case, s.13 of the LI Act, in enacting certain rules for the construction of legislative instruments provides:
13(1) If enabling legislation confers on a rule maker the power to make a legislative instrument, then, unless the contrary intention appears:
the Acts Interpretation Act 1901 applies to any legislative instrument so made as if it were an Act and as if each provision of the legislative instrument were a section of an Act;
…
any legislative instrument so made is to be read and construed subject to the enabling legislation as enforced from time to time, and so as not to exceed the power of the rule-maker. If any legislative instrument would, but for this sub-section, be construed as being in excess of the rule-maker’s power it is to be taken to be a valid instrument to the extent to which it is not in excess of that power.
e)a number of aspects of principle are significant:
i)the centrality of the duty of the Tribunal to undertake a review pursuant to s.348 of the Migration Act is the “core function” of the Tribunal, proper compliance with which is essential to it undertaking its jurisdictional task according to law: Minister for Immigration & Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594; (2011) 85 ALJR 327; (2011) 273 ALR 223; (2011) 119 ALD 1 (“SZGUR”); Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123; (2009) 259 ALR 429; (2009) 111 ALD 15 at [18] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ (“SZIAI”), noted and applied to the role of the Tribunal by Greenwood and Logan JJ in Minister for Immigration & Citizenship v Li [2012] FCAFC 74; (2012) 202 FCR 387; (2012) 289 ALR 210; (2012) 127 ALD 238 at [15] (“Li - Federal Court”) (in a judgment affirmed as to the outcome and general principles on appeal by the High Court in Minister for Immigration & Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 139 ALD 181 at [5] per French CJ (“Li”), expressly endorsing the characterisation of Greenwood and Logan JJ in Li - Federal Court);
ii)in construing the meaning of reg.2.25A(3) of the Migration Regulations, the assumed operation of which was intrinsic to the way in the which the Tribunal in this case purported to undertake a review of the Delegate’s Decision, the starting point is the text of the provision itself. Generally speaking the language which has actually been employed is the surest guide to legislative intention. Whilst there are exceptional cases where the legal meaning of a provision is something other than its literal meaning, such an outcome must be dictated by indications from some combination of sources of statutory interpretation such as statutory purpose, context and the operation of relevant canons of construction: Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQSv Cross [2012] HCA 56; (2012) 248 CLR 378; (2012) 87 ALJR 131; (2012) 293 ALR 412 at [23]-[26] per French CJ and Hayne J, applying Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; (1998) 72 ALJR 841; (1998) 153 ALR 490 at [78] per McHugh, Gummow, Kirby and Hayne JJ; and
iii)in light of the legal meaning of any given subsidiary or delegated legislation, the principles to be applied in determining whether it represents a valid exercise of a delegated legislative power represent an amalgam of orthodox common law, construed in light of a statutory test, namely that enacted by s.13(1)(c) and (2) of the LI Act. The task is ultimately one of statutory construction of the power conferring the capacity to make delegated legislation and the terms of the subordinate legislation itself: South Australia v Tanner (1989) 166 CLR 161; (1989) 63 ALJR 149; (1989) 83 ALR 631; (1989) 67 LGRA 84; CLR at 165 per Wilson, Dawson, Toohey and Gaudron JJ and at 177-180 per Brennan J (“Tanner”) (referred to by the High Court in Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3; (2013) 249 CLR 1; (2013) 87 ALJR 289; (2013) 295 ALR 197 at [58]-[61] per French CJ, [118] and [122] per Hayne J and [201] per Crennan and Kiefel JJ); Foley v Padley (1984) 154 CLR 349; (1984) 58 ALJR 454; (1984) 54 ALR 609;
f)the test of compatibility may be stated in terms of reasonable proportionality between the regulation and the pursuit of its enabling purpose, or alternatively one of sufficient directness and substantiality between the operation of the regulation and the statutory object to be served. As will be submitted, the result is the same on either approach to the construction of reg.2.25A(3) of the Migration Regulations;
g)in cases of doubt, as recognised in Tanner at CLR 180 per Brennan J, a delegation of legislative power capable of a broad construction which exceeds the conferral of power and narrow construction which brings the provision within power, the latter is to be preferred. This common law derived proposition is compatible with s.13(1)(b) of the LI Act;
h)the only issue of substance on which the Tribunal Decision turned was whether Shariful met, or did not meet, the criteria in PIC 4005(1)(c)(ii)(A). The Tribunal Decision records that possibility of a further alternative MOC opinion having been sought and not pursued by the first and second applicants. In that context it stated that any new MOC opinion was “going to be binding on the Tribunal as well”: CB 381 at [17];
i)the Tribunal, having satisfied itself that the MOC’s June 2012 Medical Opinion asked the right question (a point which, subject to what is challenged in ground 1 as to the way in which the question was addressed, is not taken by the applicants in this Judicial Review Application), the Tribunal concluded, consistently with its earlier observation at CB 381 at [17], that it was bound to accept that opinion to be correct for the purposes of deciding whether Shariful met or failed to meet the PIC 4005(1)(c)(ii)(A) criteria: CB 381-382 at [19]-[22]. The construction had earlier been asserted: at CB 378 at [8];
j)that was, both in terms and effect, the end of the matter. The Tribunal did not examine any other material before it such as the content of the contentions put by the applicants’ solicitor on their behalf in an Outline of Submissions dated 25 February 2013: CB 366-372, nor the supporting material referred to therein. Nor, subject to the possible (but in practical terms limited) exercise of power it had foreshadowed at CB 381 at [17], did the Tribunal consider exercising any power under ss.359(1) and 363(1) of the Migration Act. The power enacted by s.363(1)(d) of the Migration Act is conferred in general terms, unconfined by any requirement that in any given case the Secretary must arrange for the making of any investigation or medical examination by, specifically, a Medical Officer of the Commonwealth. Nor did the Tribunal otherwise analyse the content of the MOC’s June 2012 Medical Opinion;
k)the approach was flawed in three distinct but related ways:
i)firstly the Tribunal construed reg.2.25A(3) of the Migration Regulations as applying so as to bind the Tribunal on review when the provision in fact says nothing at all about any consequences for the Tribunal in any given exercise of power, let alone one where its core function is to undertake a review. To the contrary, the provision refers only to the Minister. If there was thought to be any other indicator of statutory meaning other than a textual consideration that may have borne on the construction it adopted, the Tribunal did not refer to such an indicator. Moreover, ss.19, 19A and 19B of the Acts Interpretation Act 1901 (Cth) militate against any approach to construing a statutory reference to “Minister” which broadly and by implication, includes another administrative decision-maker undertaking a task at a different stage along the administrative decision-making continuum;
ii)the effect of adopting the legal meaning of reg.2.25A(3) of the Migration Regulations that the Tribunal did (being one other than the literal meaning) meant that there was in no practical or substantial sense a review by it of the merits of the Delegate’s Decision. Because the MOC’s June 2012 Medical Opinion decided against Shariful (and thus in effect all members of his family unit) under the applicable public health criteria, the outcome of its jurisdictional task was predetermined by the MOC’s June 2012 Medical Opinion. Although the MOC’s June 2012 Medical Opinion did indeed have “binding” effect, pursuant to reg.2.25A(3) of the Migration Regulations, upon the Delegate for the purposes of the exercise of the Delegate’s jurisdiction, nothing in the nature of the merits review process, the text and context of Part 5 (and in particular Division 5 thereof) of the Migration Act, or anything expressed or implied in the Migration Regulations, is suggestive of it having that same binding effect for the Tribunal’s own exercise of its statutory task, being one, by definition, to rehear the applicants’ applications for a visa anew, unencumbered by the Delegate’s Decision, and unconstrained by the evidence and other material before the Delegate. To the contrary, the nature of merits review as a “core function”, empowered by Division 5, and Part 5 generally, of the Migration Act, is indicative of precisely the contrary result; and
iii)there is no foundation to construe the regulation making power enacted by s.504 of the Migration Act as extending to a regulation which operates so as to in effect, wholly undermine a core function of the Tribunal and the intrinsic nature of merits review. Because such a construction will, as with the outcome in this case, operate wholly at odds with the conferral of the core merits review function on the Tribunal by Part 5 Division 5 of the Migration Act, a regulation with such an extended operation could not fairly be said to be “necessary or convenient to be prescribed for carrying out or giving effect to” the Migration Act. Indeed, contrary to s.504(1) of the Migration Act itself, a regulation with such a meaning would be “inconsistent with” the Migration Act. Nor do any of the more specific regulation-making powers conferred by s.504(1)(a)-(l) of the Migration Act support the construction of reg.2.25A(3) of the Migration Regulations adopted by the Tribunal. The same result is obtained by applying the principles of the Australian common law to characterising whether the purported meaning and operation of reg.2.25A(3) of the Migration Regulations is enabled by s.504(1) of the Migration Act otherwise. Whether viewed from the perspective of “reasonable proportionality” or “sufficiency of connection” between the objects of the Migration Act (particularly when regard is had to the nature of the merits review process as being a core function of the Tribunal) and the operation of reg.2.25A(3) of the Migration Regulations as found by the Tribunal, the operation of that provision of delegated legislation, far from enabling or facilitating the achievement of a critical statutory purpose of the Migration Act, actually undermines one such purpose; and
l)it necessarily follows that, to the extent that it is asserted that the sub-regulation operates to require the Tribunal in any given case to take a MOC’s opinion on a matter referred to in reg.2.25A(1) or (2) of the Migration Regulations to be correct, then regulation 2.25A(3) of the Migration Regulations:
i)is beyond power under the Migration Act in those circumstances; alternatively
ii)must be construed on its own terms so as not to have that meaning and operation.
Minister’s submissions
The Minister submitted that:
a)the applicants were represented before the Tribunal and also themselves appeared before the Tribunal to give evidence and present arguments: CB 381 at [15]. The Tribunal offered the applicants the offer of obtaining a further MOC opinion if they considered that the MOC opinion was not correct, but the applicants declined to take this course: CB 381 at [17];
b)the Tribunal in this case clearly gave careful consideration to the terms of the MOC’s June 2012 Medical Opinion, and to the question whether it was an opinion that was properly authorised by the regulations, applying the authority of Robinson and Ramlu v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1735; (2005) 195 FLR 203. The Tribunal satisfied itself that the MOC in the present case applied the correct test and addressed the correct criteria: CB 381-2 at [19]-[21];
c)the Tribunal thus reviewed the decision of the Delegate, having regard to the proper ambit of the decision for the Delegate as prescribed by the Migration Regulations. The review by the Tribunal was no less a review merely because it has regard to the proper constraints upon the decision-maker in making the decision subject to review. The applicants err in suggesting in their submissions that the nature of the merits review process requires that the Tribunal should approach its function without giving proper regard to the effect of reg.2.25A of the Migration Regulations upon the ambit of the decision under review. Similarly, the applicants err in suggesting in their submissions that the effect of reg.2.25 of the Migration Regulations is to “wholly undermine a core function of the [Tribunal]”;
d)the role of the Tribunal, to the extent relevant to this application, is set out in s.348(1) of the Migration Act. This provides that “if an application is properly made under section 347 for review of an MRT-reviewable decision, the Tribunal must review the decision”. Section 349(1) of the Migration Act provides that the Tribunal may, for the purposes of the review, exercise all the powers and discretions that are conferred by the Migration Act on the person who made the decision;
e)in Li the Chief Justice of the High Court of Australia described the relevant review function of the Tribunal as follows:
The word “review” has no settled pre-determined meaning; it takes its meaning from the context in which it appears. As appears from the nature of the powers conferred on these tribunals, the review each must undertake involves a fresh consideration of the application which led to the decision under review. The review must be based on the evidence and arguments placed before the tribunal and any other relevant information which the tribunal itself obtains. Each tribunal must identify for itself the issues that arise in the application before it. It is not confined to the issues considered by the delegate. (citations omitted).
Li at [10] per French CJ.
This description drew from the judgment of the High Court in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs[2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 at [35] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ (“SZBEL”);
f)in Li at [93] Justice Gageler described the role of the Tribunal on review as conducting “an inquisitorial, merits-based review by an independent tribunal”, and being under a duty to arrive at the correct or preferable decision in the case before it according to the material before it: Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1; (2004) 79 ALJR 397; (2004) 211 ALR 660; (2004) 82 ALD 1 at [22] per McHugh, Gummow, Callinan and Heydon JJ (“NAFF”). Chief Justice French in Li also held that there were similarities between the role of the then Administrative Appeals Tribunal (“AAT”) being to arrive at the correct or preferable decision, and the role of the then Migration Review Tribunal: Li at [10] per French CJ (prior to the Tribunal becoming part of the AAT: Tribunals Amalgamation Act 2015 (Cth), s.3, Sch.2 (“TA Act”)). What is the correct or preferable decision must be determined having regard to the legislative constraints upon the decision to be made;
g)in an analogous context, in Minister for Immigration & Citizenship v Maman [2012] FCAFC 13; (2012) 200 FCR 30; (2012) 286 ALR 680; (2012) 125 ALD 379 at [22] per Flick and Foster JJ (“Maman”) the Full Court of the Federal Court held that “The Minister and the Tribunal are equally bound to treat the opinion as correct.” In relation to the obligation of the Minister to take an independent expert opinion (in that legislative context) to be correct, the Full Court held that s.349(1) of the Migration Act confers no greater power or discretion upon the Tribunal than that conferred upon the Minister: Maman at [19] per Flick and Foster JJ;
h)as these statements make clear, the review by a Tribunal must be directed towards an identification of the correctness (or otherwise) of the Delegate’s Decision, having regard to all of the material before the Tribunal in the applicable legislative context. The Tribunal stands in the shoes of the Delegate;
i)in Blair the Federal Court, in relation to MOC opinions and the role of the Tribunal in relation thereto, having rejected an applicant’s criticism of an MOC opinion, said that the Tribunal was obliged by reg.2.25A(3) of the Migration Regulations to take the MOC opinion to be correct: Blair at [50] per Carr J.
j)thus, as held by the Federal Court in Blair, the role of the Tribunal reviewing the correctness of the decision of the Delegate (or the Minister), is not to go beyond the role of the Delegate (or the Minister), including having regard to the terms of reg.2.25A of the Migration Regulations, and this Tribunal was similarly required by reg.2.25A of the Migration Regulations to take a proper and lawful opinion of the MOC’s June 2012 Medical Opinion to be correct when reviewing the Delegate’s Decision;
k)in Ramlu v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1735; (2005) 195 FLR 203 at [23]-[24] per Driver FM the Federal Magistrates Court held that the Tribunal correctly stated the task that it had to perform in describing its role as being to:
… do no more than consider whether the opinion [of the MOC] was properly made under the relevant provisions. If properly made, the opinion must be taken as correct ….
l)in the applicable legislative context in the present case, the correctness of the Delegate’s Decision is itself premised upon the terms of reg.2.25A of the Migration Regulations. That does not require any reading down of reg.2.25A of the Migration Regulations in order that there be a “review” by the Tribunal;
m)the applicants’ submission is, in effect, that reg.2.25A of the Migration Regulations should be ignored by the Tribunal on review. Such an approach ignores the character and legislative context of the Delegate’s Decision under review, and misstates the Tribunal’s function; and
n)in this case the Tribunal did consider whether the MOC applied the wrong test, and concluded that the criteria required by PIC 4005 were properly addressed in the Delegate’s Decision: see CB 382 at [22].
Consideration
The first issue for determination is whether reg.2.25A, and especially sub-reg.(3), of the Migration Regulations, is within power.
Section 505 of the Migration Act in full provides as follows:
To avoid doubt, regulations for the purpose of prescribing a criterion for visas of a class may provide that the Minister, when required to decide whether an applicant for a visa of the class satisfies the criterion:
(a) is to get a specified person or organisation, or a person or organisation in a specified class, to:
(i) give an opinion on a specified matter; or
(ii) make an assessment of a specified matter; or
(iii) make a finding about a specified matter; or
(iv) make a decision about a specified matter; and
(b) is:
(i) to have regard to that opinion, assessment, finding or decision in; or
(ii) to take that opinion, assessment, finding or decision to be correct for the purposes of;
deciding whether the applicant satisfies the criterion.
The Explanatory Memorandum to the Migration Laws Amendment Bill (No. 2) 1992 (Cth) which introduced the predecessor of what is now s.505 of the Migration Act provided as follows at page 3:
Part 4 also inserts a new power to make regulations concerning the use in the decision making process of certain opinions, findings, assessments or decisions by specified third persons or agencies.
(Underlining added).
Section 505 of the Migration Act represents the Commonwealth Parliament’s specific enactment of a specific power invested in the Minister to make regulations which specifically provide:
a)that the question of whether particular criteria are met in relation to a visa may be answered by an opinion obtained from a person (such as an MOC); and
b)for:
i)having regard to that opinion; or
ii)treating that opinion as correct,
for the purposes of the application of the relevant criteria in relation to the visa.
The manner in which s.505 of the Migration Act now provides for “the use in the decision making process of certain opinions” is twofold: that is, firstly that regard may be had to them, or secondly that they may be taken to be correct. Section 505 distinguishes between these two options by the use of “or” between placitas (i) and (ii) of paragraph (b), and makes it apparent that in framing a regulation it is lawful to utilise the power vested by one of the alternatives alone.
This is what has been done in making reg.2.25A(3) of the Migration Regulations, which is a use of the power in s.505(b)(ii) to provide for an opinion to be taken to be correct for the purposes of whether an applicant satisfies a visa criterion. The making of reg.2.25A does not therefore exceed the regulation-making power under s.505 of the Migration Act: Tanner. Section 505(b) of the Migration Act distinguishes between the power to make regulations which have regard for an opinion and the power to make regulations which provide for an opinion to be taken to be correct. This is sufficient to dispose of the applicants’ argument that the Tribunal therefore ought to have had regard to other medical and allied health opinion.
The Court is therefore of the view that it was within power for reg.2.25A(3) of the Migration Regulations to be made providing that:
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.
A further question raised by the applicant is whether reg.2.25A(3) of the Migration Regulations binds only the Minister (in context the Delegate) and not the Tribunal. For this Court that question has been answered by the Full Court of the Federal Court in Maman and the Federal Court in Blair. In Maman the majority of the Full Court of the Federal Court observed as follows:
22. The potential utility of any “review” does not assist in resolving the question whether the Tribunal can or should itself get a further opinion. The utility in a visa applicant seeking “review” in circumstances where the Minister has obtained an adverse opinion may be limited. The Minister and the Tribunal are equally bound to treat the opinion as “correct”. Senior Counsel for the Minister could not assist in identifying what could usefully be said by such a visa applicant to persuade the Tribunal to set aside the delegate’s decision. Even if the Tribunal were required to obtain a further opinion, any further opinion would also have to be taken to be “correct”. The prospect of two conflicting opinions could not be discounted. A legislative regime may seem open to question if it merely encouraged unsuccessful applicants to seek review on the chance that a subsequent opinion may be more favourable.
Maman at [22] per Flick and Foster JJ (underlining added).
The minority justice made it clear that, following the reasoning in Applicant VEAL of 2002 vMinister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88; 222 ALR 411; (2005) 80 ALJR 228; (2005) 87 ALD 512 at [9] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ, s.349(1) of the Migration Act would bind the Tribunal to take as correct the independent expert’s opinion: Maman at [87] per Katzmann J.
In Blair the Federal Court said as follows:
50 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).
Blair at [50] per Carr J.
The Federal Magistrates Court expressed the same view as to the Tribunal having to accept the correctness of an MOC’s opinion in Triandafillidou v Minister for Immigration [2004] FMCA 20 at [61] per Bryant CFM (“Triandafillidou”) and Pillay v Minister for Immigration & Anor [2009] FMCA 517 at [54] per Barnes FM (“Pillay”).
The decisions of the Full Court of the Federal Court in Seligman and the Federal Court in Blair, which are both directly on point, are binding on this Court: Suh v Minister for Immigration & Citizenship [2009] FCAFC 42; (2009) 175 FCR 515; (2009) 108 ALD 470 at [29] per Spender, Buchanan and Perram JJ; Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583 at [38] per Weinberg, Jacobson and Lander JJ.
The applicants’ assertions with respect to the nature of the review need to be considered in the context of their submissions as to the invalidity of reg.2.25A(3) of the Migration Regulations on the basis that it exceeded the power under s.504 of the Migration Act. As is set out above, reg.2.25A(3) of the Migration Regulations is within power by reason of s.505 of the Migration Act.
As the Chief Justice of the High Court elucidated in Li the Tribunal must identify for itself the issues that arise in an application and is not confined to the issues considered by the Delegate. The nature of the review does however take its meaning from the context in which it appears: Li at [10] per French CJ. In context, the review of the Delegate’s Decision in this case had as part of its context the criteria to be met in order to satisfy the Minister as to the grant of a visa, which in this case imported the necessity to treat as correct the MOC’s June 2012 Medical Opinion. In context, and as a matter of law for reasons set out in Seligman and Blair cited above, it was not open to the Tribunal to treat the MOC’s June 2012 Medical Opinion as incorrect, nor was it open to it to override that opinion by having regard to other medical or allied health professional opinion concerning the condition of Shariful: Blair at [33] and [36] per Carr J.
The approach of the applicants, faulty as it was in failing to recognise the specific regulation making power in s.505 of the Migration Act, was also faulty in suggesting that under s.348 of the Migration Act it was open to the Tribunal to conduct a review which ignored the requirement in reg.2.25A(3) of the Migration Regulations to treat the MOC’s June 2012 Medical Opinion as correct. In the particular context of this case the constraint imposed by reg.2.25A(3) of the Migration Regulations was an essential part of the context in which the Tribunal had to determine whether the criterion for the Skilled Residence Visas was met.
It was not open for the applicants to suggest that the Tribunal merely have “regard” to the MOC’s June 2012 Medical Opinion. To do so would be to ignore the specific terms of s.505(b) of the Migration Act which provides for an opinion of this type, binding on both the Minister and the Tribunal: Seligman and Blair, to be one which a regulation may provide that the Tribunal either has regard to or has to treat as correct. In this case reg.2.25A(3) of the Migration Regulations makes it clear that the MOC’s June 2012 Medical Opinion fell within the latter class, and had to be treated as correct by the Tribunal.
Having regard for the foregoing views of the Court, and in context, the review conducted by the Tribunal of the Delegate’s Decision was within power, and a review of a kind contemplated by s.348 of the Migration Act, particularly when read, in context, with s.505 of the Migration Act, and reg.2.25A and PIC 4005 of the Migration Regulations.
It is also worth observing that a regulation requiring the Tribunal to treat as conclusive certain matters is not an unusual requirement when considering the criterion for visas which the Tribunal must consider. The sprawling sweep of the Migration Regulations and visa criterion contained therein contain many examples of situations where a Tribunal reviewing a Delegate’s Decision must take to be correct an opinion or assessment of another body: one need only think of, in addition to medical assessments, of trade recognition assessments and English language assessments. In many instances, the results of those tests effectively determine whether the visa criterion is met.
The proposition inherent in the applicants’ submissions that the nature of the review under s.348 of the Migration Act is such that it can, because of its generality, prevail over specific regulations granted under a specific regulation making power, ignores the relevant context and inverts the proper approach to a review of this type. The review cannot be used to dilute the criteria that the Tribunal is required to apply. Those criteria include PIC 4005 in respect of which, by reason of reg.2.25A(3) of the Migration Regulations, the Tribunal is obliged to take the MOC’s opinion as correct.
Whether criteria met
In Seligman the Full Court of the Federal Court made the following observations with respect to the defining and limiting attributes of the medical officer’s opinion:
48 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".
49 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.
Seligman at [48] and [49] per French, North and Merkel JJ.
Of the matters of medical and other judgment involved in considering the terms of what was then reg.2.25A(1) the Full Court of the Federal Court in Seligman said as follows:
The issue raised by subpars (c)(i) and (c)(ii) will also involve matters of medical judgment about the nature of the disease or condition which is identified. Whether a disease or condition has characteristics that require ongoing health care or support services for the person suffering from it is a matter of medical judgment. And in a broad sense a medical practitioner can assess whether the provisions of such health care or support services involves a significant cost. Indeed the use of the word “areas” in the collocation " areas of health care or community services" suggests a judgment about the nature of the disease or condition rather than an attempt to relate it to precise health care provisions or particular community services.
Seligman at [53] per French, North and Merkel JJ.
In relation to taking into account the opinion of a MOC the Full Court of the Federal Court in Seligman observed as follows:
…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.
and
As to the second ground relied upon by his Honour, relating to the absence of evidence to support the Medical Officer's opinion, an opinion which is unlawful for that reason does not bind the delegate. The fact that the delegate may not have made inquiry or may have been unaware of the deficiency makes it no less an error of law to treat the opinion as provided in accordance with the requirements of the regulations and to be taken as correct.
Seligman at [66] and [68] per French, North and Merkel JJ.
The Full Court of the Federal Court in Seligman therefore determined that there was jurisdiction in the Court “to consider the lawfulness of the medical officer’s opinion as an element of its consideration of the lawfulness of the delegate’s decision”: Seligman at [69] per French, North and Merkel JJ.
Item 4005(c) was amended following the decision in Seligman: Imad at [12] per Heerey J. The relevant criteria are now set out in Item 4005(c) as set out above. Item 4005(c) has been held by the Federal Court to be valid. In Imad the Federal Court said as follows:
13 In my opinion the regulation is not invalid. The criterion in cl 4005(c) requires the applicant to be not a person who has a disease or condition of a kind described in paragraphs (i) and (ii). The "person" referred to in (i) is not the applicant but a hypothetical person who suffers from the disease or condition which the applicant has. The criterion requires assessment as to whether or not a disease or condition is such that it would be likely to require health care or community services and that provision of health care or community services would result in a significant cost to the Australian community. The assessment of the likelihood of health care or community services is a qualification or characterisation of the kind of disease or condition in question, just like saying "this is a surgical procedure which usually requires general anaesthetic". It is not a prediction of whether the particular applicant will, in fact, require health care or community services at significant cost to the Australian community. This meaning is rendered, in my view, clear beyond argument by the concluding words beginning with "regardless".
14 The intention behind this regulation is understandable, particularly in the light of reg 2.25A. One would expect that a medical officer would be able to assess the nature of a disease or condition and its seriousness in terms of its likely future requirement for health care. On the other hand, one would not expect a medical officer to inquire into the financial circumstances of a particular applicant or any family members or friends or other sources of financial assistance.”
Imad at [13]-[14] per Heerey J.
In Blair the Federal Court dealt with an application which alleged that a MOC’s opinion was invalid. The Federal Court in that matter adopted what was said in Seligman as to the correctness or validity of a MOC’s opinion, as set out above.
In X the Federal Court observed as follows:
14 Ground (d) assumes that the assessment required by the clause is not of an entirely hypothetical person with a certain disease, but "involve[s] consideration of the condition or disease of the nature or kind suffered by the applicant". The prosecutor says that the terms of sub-para 4005(c)(i), in particular "the disease or condition is such that..." (emphasis added), indicate that the decision-maker is required to take into account the nature and extent of the particular symptoms suffered by the prosecutor. In the prosecutor’s submission, this would be the only sensible reading of the provision, being that " [t]here is obviously a wide range of symptomology and different levels of functioning for HIV sufferers". In my view, however, the respondent is correct in saying that para 4005(c) only requires the RMOC to focus upon the position of " a hypothetical person who suffers from HIV" since the terms of the provision focus upon the " disease or condition" generally, not upon the condition of a particular applicant or class of applicants. All the Medical Officer need do is provide an opinion about the likelihood of a hypothetical person with "the disease or condition" requiring health care or community services during the time of the prosecutor’s stay in Australia, and about whether the likely cost to the community of those services would be " significant". The terms and purpose of the condition mandate no finer distinctions.
15 There is no basis for the conclusion that the RMOC failed to comply with these requirements. It is true that the opinion was expressed in imprecise language, but that is not enough to infer error. The RMOC observed first that the prosecutor was a person with HIV. She then observed that as a person with HIV he would in fact require “management of his condition which is at a significant ongoing cost". This should not be understood as misapplying the statutory criteria, but rather as suggesting that the present case is a typical example of that of a sufferer of HIV and of the type and cost of required treatment. The RMOC thus expressed an opinion that a sufferer of HIV would generally be likely to require health care of the kind and generally at the cost of that required by the applicant, and that that cost was significant. It is for that reason that HIV was a disease to which para 4005(c) applied.
X at [14]-[15] per Finkelstein J.
In Robinson v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1626; (2005) 148 FCR 182 (“Robinson”) the Federal Court dealt with the appropriate test to be applied to the construction of the public interest criterion in Item 4005. The Federal Court observed as follows:
43 … In my view, the applicant’s submission as to the appropriate test to be applied, is to be accepted. A proper construction of Public Interest Criterion 4005 of the Regulations, requires the MOC to ascertain the form or level of condition suffered by the applicant in question and then to apply the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition. It is not the case that the MOC is to proceed to make the assessment at a higher level of generality by reference to a generic form of the condition.
Robinson [43] per Siopis J.
The applicants assert that the MOC’s June 2012 Medical Opinion is not an opinion for the purposes of reg.2.25A of the Migration Regulations, and did not involve a proper, genuine or realistic consideration or inquiry into the matters referred to the MOC, so as not to constitute an opinion at all.
In the Court’s view the MOC’s June 2012 Medical Opinion is an opinion of an MOC, because:
a)it is in the form of an opinion, and is headed up “Opinion of a Medical Officer of the Commonwealth”;
b)it expresses an opinion that Shariful does not meet the relevant health requirement;
c)indicates that Shariful has been assessed against PIC 4005, for the period of a permanent stay in Australia;
d)expresses the view that Shariful does not satisfy PIC 4005(1)(c)(ii)(A);
e)considers whether or not a hypothetical person with Shariful’s disease or condition, at the same severity as Shariful, would be likely to require health or community services during the period specified above, and indicates that that would be the case, and indicates the nature of the services which are likely to be required;
f)expresses the view that the provision of those health care or community services would be likely to result in a significant cost to the Australian community in the area of health care or community services; and
g)indicates that in “preparing this opinion” the MOC had had regard to Dr Walsh’s Report and to Ms Gallagher’s Reports, and to the MOC’s October 2011 Medical Opinion.
The MOC’s June 2012 Medical Opinion clearly expresses an opinion on the issue of whether or not Shariful meets the requirements of PIC 4005, and is therefore an opinion on a matter referred to in reg.2.25A(1) of the Migration Regulations.
There was no suggestion in these proceedings that the MOC’s June 2012 Medical Opinion was not contemporaneous in the sense referred to in Seligman and Blair.
The identification in the MOC’s June 2012 Medical Opinion of Shariful as being a person with moderate developmental delay which is likely to be stable is not inconsistent with Dr Walsh’s Opinion which describes Shariful as having a level of intellectual disability of at least moderate severity, and notes that he might attend an education support unit or mainstream school depending upon his parents’ preference. Likewise, it is not inconsistent with the MOC’s October 2011 Medical Opinion (by the same MOC) in that it indicates that Shariful is likely to require disability support services and educational support services, and that the requirement for health care or community services would be likely to result in a significant cost to the Australian community.
Having indicated that regard had been had to Dr Walsh’s Opinion and Ms Gallagher’s Reports, and having previously expressed an opinion in relation to Shariful, and having noted that required services would include Commonwealth disability services, State disability services and special education services (the latter being the subject of evidence from the applicants themselves: see CB 375) the MOC was entitled to form the opinion that the provision of such services would be likely to result in significant cost to the Australian community for a hypothetical person with Shariful’s condition: Imad at [14] per Heerey J. These are matters of medical judgment: Seligman at [53] per French, North and Merkel JJ, and in respect of which there is no obligation to specify cost: Blair at [38] and [46] per Carr J; JP1 at [15] and [32] per Riley FM: Pillay at [60] per Barnes FM; citing both Blair and JP1; Triandafillidou at [61] per Bryant CFM. Furthermore, to have the Tribunal reviewing the MOC’s medical conclusion, if the Tribunal were constituted by a non-medical person, would make a mockery of the fact that the medical opinion is a matter of medical judgment, which is no doubt why the MOC is not required to give reasons: Blair at [38] and [46] per Carr J. The MOC’s June 2012 Medical Opinion is undeniably brief, but in circumstances where the opinion expressed is not inconsistent with the information to which the MOC has had regard, including Dr Walsh’s Opinion and the same MOC’s October 2011 Medical Opinion, the opinion is explicable, and is based on the available evidence, its brevity is perhaps therefore understandable. In any event, however, its brevity is not a basis for forming the view that there has not been a proper, genuine or reasonable inquiry into Shariful’s circumstances by the MOC for it is plain that the available evidence was not inconsistent with the MOC’s June 2012 Medical Opinion: Bui at [8] and [39] per French, North and Merkel JJ.
In all of the above circumstances, the Court is not of the view that the Tribunal failed:
a)to undertake a proper, genuine or realistic inquiry, either itself, or on the basis that the MOC’s June 2012 Medical Opinion was not a proper, genuine or realistic inquiry; or
b)to take into account relevant considerations.
Insofar as the applicants’ submissions assert that the Tribunal might have made further inquiries at its own instance, the Court notes that there is no duty to do so, there being no duty to make such inquiries unless an obvious inquiry might reveal a critical fact the existence of which is easily ascertained and which in some circumstances might supply a sufficient link to the outcome to constitute a failure to review: SZIAI at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. In this case, where:
a)a further opportunity for a further MOC’s opinion had been declined by the first and second applicants;
b)there were already three MOC’s opinions which indicated that Shariful did not meet the requirements of PIC 4005; and
c)the three MOC’s Opinions referred to above were not inconsistent with Dr Walsh’s Opinion, or anything specific in Ms Gallagher’s Reports,
it is difficult to see what further purpose further inquiries of an MOC, and a further MOC’s Opinion, might have garnered. There is nothing to indicate that there would be anything able to be easily and readily ascertained which would result in a different outcome with respect to whether or not Shariful met the requirements of PIC 4005. Indeed, if such were the case, the Court considers it unlikely that the first and second applicants would have rejected the offer of a further MOC’s Opinion.
In the circumstances, there is nothing in the Tribunal’s not instituting further inquiries with respect to Shariful’s medical condition, or obtaining a further MOC’s opinion, under s.363(1)(d) of the Migration Act, which constitutes jurisdictional error in the sense referred to in SZIAI.
The Court notes the argument concerning the FMC 2011 Orders and observes that the Tribunal Decision is correct because the MOC’s Opinions there under consideration were made by reference to an incorrect period of time, and the Tribunal correctly recognised this: see CB 381-382 at [20]. No such error afflicts the MOC’s June 2012 Medical Opinion.
Conclusions and orders
The Court has concluded that:
a)regulation 2.25A of the Migration Regulations is valid;
b)the MOC’s June 2012 Medical Opinion was an opinion for the purposes of reg.2.25A of the Migration Regulations;
c)the MOC’s June 2012 Medical Opinion was required to be taken to be correct by the Tribunal: Migration Regulations, reg.2.25A(3);
d)the Tribunal’s review of the Delegate’s Decision was a review for the purposes of s.348 of the Migration Act, and was a proper, genuine and realistic inquiry which did not fail to take into account any relevant considerations; and
e)there was no necessity for the Tribunal to undertake further inquiries in relation to Shariful’s medical condition.
Having regard to the above conclusions, and the other matters considered by the Court above, the Court is of the view that there is no jurisdictional error in the Tribunal Decision founding the Court’s jurisdiction under s.476 of the Migration Act: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ. It follows that there must be an order dismissing the application.
The Court will also make orders amending the name of the:
a)first respondent to read “Minister for Immigration & Border Protection”: see Transcript, page 4; and
b)second respondent to read “Administrative Appeals Tribunal”: TA Act, s.3, Sch.2.
The Court will hear the parties as to costs.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 18 August 2015
2
49
7