JP1 & Ors v MIAC
[2008] FMCA 970
•22 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JP1 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 970 |
| MIGRATION – Migration Review Tribunal – Employer Nomination (Residence) (Class BW) visa – public interest criterion 4005 – health criteria – whether RMOC’s opinion invalid – whether MOC must specify amount of cost considered to be significant – application dismissed. |
| Migration Act 1958 (Cth), ss.359A, 363(1), 363(3) Migration Regulations 1994 (Cth), r.2.25A, cl. 857.223 (Schedule 2), public interest criterion 4005(c) (Schedule 4) |
| Applicant Y v Minister for Immigration and Citizenship (2008) 110 ALD 544, [2008] FCA 367 Blair v Minister for Immigration and Multicultural Affairs [2001] FCA 1014 Minister for Immigration and Multicultural Affairs v Seligman (1999) 85 FCR 115 Minister for Immigration and Multicultural and Indigenous Affairs v X (2005) 146 FCR 408 Robinson v Minister for Immigration and Multicultural Affairs (2005) 148 FCR 182 VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286 X v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 429 |
| Applicants: | JP1 & ORS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1646 of 2007 |
| Judgment of: | Riley FM |
| Hearing date: | 14 July 2008 |
| Date of Last Submission: | 14 July 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 22 August 2008 |
REPRESENTATION
| Counsel for the Applicants: | Roz Germov |
| Solicitors for the Applicants: | Joy Popovska & Associates |
| Counsel for the Respondents: | Richard Knowles |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application filed on 4 December 2007 is dismissed.
The applicants pay the first respondent’s costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1646 of 2007
| JP1 |
Applicant
| JP2 |
Second Applicant
| JP3 |
Third Applicant
| JP4 |
Fourth Applicant
| JP5 |
Fifth Applicant
| JP6 |
Sixth Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Migration Review Tribunal. The first applicant (“the applicant”) applied for an Employer Nomination (Residence) (Class BW) visa. The other applicants are the applicant’s wife and children. The family is Cambodian. They entered Australia on 29 October 1996. The applicant was required to undergo a medical examination as part of the visa application process. He was diagnosed with human immunodeficiency virus.
A Medical Officer of the Commonwealth (“MOC”) considered that the applicant did not satisfy public interest criterion 4005 in Schedule 4 to the Migration Regulations 1994 (“the Regulations”) because the applicant would require antiretroviral medications in the future which would have a significant cost. A delegate of the first respondent refused the applicant’s application. On 30 June 2003, the applicant sought review by the Tribunal, which affirmed the delegate’s decision.
The applicant has now sought review in this court, primarily on the grounds that the opinion of the Review Medical Officer of the Commonwealth (“RMOC”) on which the Tribunal’s decision was based was said to be invalid.
Legislation
The criteria for the visa the applicant sought included the time of decision requirements set out in clause 857.223 in Schedule 2 to the Regulations. Clause 857.223, among other things, required the applicant to satisfy public interest criterion 4005. That criterion is as follows:
The applicant:
(a) is free from tuberculosis; and
(b)is free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community; and
(c)is not a person who has a disease or condition to which the following subparagraphs apply:
(i) the disease or condition is such that a person who has it would be likely to:
(A)require health care or community services; or
(B)meet the medical criteria for the provision of a community service;
during the period of the applicant's proposed stay in Australia;
(ii) provision of the health care or community services relating to the disease or condition would be likely to:
(A)result in a significant cost to the Australian community in the areas of health care and community services; or
(B)prejudice the access of an Australian citizen or permanent resident to health care or community services;
regardless of whether the health care or community services will actually be used in connection with the applicant; and
(d)if the applicant is a person from whom a Medical Officer of the Commonwealth has requested a signed undertaking to present himself or herself to a health authority in the State or Territory of intended residence in Australia for a follow‑up medical assessment, the applicant has provided such an undertaking.
Regulation 2.25A of the Regulations requires the Tribunal to seek the opinion of a MOC in determining whether an applicant meets public interest criterion 4005. In making that determination, r.2.25A requires the Tribunal to take the opinion of the MOC as correct.
Seligman
In Minister for Immigration and Multicultural Affairs v Seligman (1999) 85 FCR 115 at [48], [49] and [53], the Full Federal Court said that:
[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 reg 2.25A(3) to take the opinion to be "correct". That is subject to three qualifications:
1. The opinion must be the opinion of the Medical Officer "on a matter referred to in subreg (1) or (2)". The matter referred to in reg 2.25A(1) is whether a person meets the requirements of the relevant paragraph of Sch 4.
2. The Minister is to take the opinion as correct for the purposes of deciding whether a person meets a requirement or satisfies a criterion.
3. The opinion must address satisfaction of the requirements at the time of the Minister's decision.
…
[53] The issue raised by subpars (c)(i) and (c)(ii) [of public interest criterion 4005] 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.
Proceedings in the Tribunal
The application to the Tribunal was lodged on 30 June 2003. The applicant obtained successive reports from an RMOC to the effect that he did not satisfy public interest criteria 4005. The applicant submitted to the Tribunal three reports from his treating medical specialist, Professor Christopher Fairley. The Tribunal provided various extensions of time but eventually conducted a hearing on 14 August 2006. Subsequently, the applicant’s adviser told the Tribunal that she was awaiting documents she had sought under the Freedom of Information Act 1982, and, later, that she had only received some of the documents she had sought. The applicant’s adviser asked the Tribunal to compel the production of the outstanding documents. The Tribunal declined to do so. On 29 October 2007, the Tribunal affirmed the delegate’s decision.
The RMOC’s decision
The last opinion provided by an RMOC in relation to the applicant, being the one on which the Tribunal relied, was dated 18 June 2007. It included the following:
I have been asked to provide an opinion on whether the above named applicant meets the requirements of Public Interest Criterion 4005 of Schedule 4 to the Migration Regulations 1994, and in particular paragraph 4005(c)(ii)(A).
In preparing this opinion, I have regard to available medical reports concerning the applicant, including, but not limited to:
- Forms 160 and 26
- Prof. Fairley’s reports dated 9/9/04, 17/12/04 and 19/12/06.
Condition:
The applicant is a person with HIV infection. The condition was first noted during a medical examination for migration screening in April 2002. At that time he had a low viral load
5660 copies/ml and a CD4 count of 399/µL. In June 2002 he was commenced on anti retroviral therapy for a period of 18 months (as per the treatment guidelines at that time). Treatment was ceased because it became evident that he did not require treatment. In 2004 his CD4 count was 749 with a viral load of 2130. As at 15 June 2006, …[the applicant’s] viral load was less than 400 and his CD4 count was 573.
Currently … [the applicant] is not on any form of treatment. He is in Stage 2 HIV infection. The condition is currently reasonably stable and the applicant has not been recommenced on anti retroviral therapy, although CD4 count has dropped at a rate of 80 cells/microl per year since 2004. The condition is expected to progress within the foreseeable future. Recent evidence suggests that on average the decline in CD4 count is approximately
25 cells/microl per year. Based on Prof Fairley’s report dated 19/12/06, … [the applicant] is expected to require anti retroviral therapy when his CD4 count reaches below 350.
Prognosis for period of stay sought:
The condition appears to be stable but slowly progressive as indicated by the decline in the CD4 count provided by Professor Fairley, and the applicant is asymptomatic. He does require regular specialist follow up. It is very likely that the applicant will in time and within the period of stay sought (permanent visa) require anti retroviral therapy due to the natural history and expected progress of the disease. In… [the applicant’s] case the time that this would be expected to occur would be in 9 years (according to average CD4 count decline, and conceivably may be as soon as 3 years, looking at … [the applicant’s] CD4 decline). This therapy is consistent with the health care that would be provided to a hypothetical person infected with HIV to the level suffered by the applicant. HAART/ARV therapy is considered a significant cost to health services.
This disease or condition is a disease or condition to which paragraphs 4005(c)(ii)(A) – new in Schedule 4 of the Migration Regulations 1994 apply, regardless of whether or not health care or community services will actually be used in connection with the applicant during the period of the applicant’s proposed stay in Australia. A person with such a disease or condition would be likely to require health care or community services or would be likely to meet the medical criteria for the provisions of a community service and provision of such health care or community services relating to the disease or condition and would be likely to result in a significant cost to the Australian community in the areas of health care and community services, or prejudice the access of Australian citizens or permanent residents to, health care and community services.
Therefore the applicant does not meet Public Interest Criterion(s): 4005.
Grounds of the Application
The application raised three grounds. I will address them in order.
Ground 1: The Tribunal’s reasons for decision reveal that it made errors of law constituting fundamental jurisdictional errors that vitiated its decision.
The particulars under this ground were, firstly:
(a)In order to determine whether the Applicant satisfied the eligibility criteria for a subclass 857 RSMS visa, the Tribunal was required to obtain a lawful opinion from the Review Medical Officer of the Commonwealth (“RMOC”) in relation to whether the Applicant satisfied Public Interest Criterion (“PIC”) 4005(c)(ii)(A) of Schedule 4 of the Migration Regulations 1994 (“the Regulations”), namely that he was not a person with a disease or condition likely to result in significant cost to the Australian community.
The applicant submitted and I accept that the Tribunal could only treat an opinion as binding on it if the opinion was valid. Seligman makes that clear.
The applicant provided further particulars of ground 1 as follows:
(b)The Tribunal misconstrued PIC 4005(c)(ii)(A) by deciding that a lawful opinion from the Review Medical Officer of the Commonwealth (“RMOC”) did not require the RMOC to specify the cost he considered to be significant for the purposes of PIC 4005(c)(ii)(A) in relation to a person with the form and level of the Applicant’s medical condition.
The RMOC in his opinion did not specify the cost that he considered to be significant for the purposes of public interest criterion 4005. Nevertheless, the Tribunal accepted that the opinion was valid and binding on the Tribunal. I do not accept the applicant’s submission that an opinion would not be valid if it did not specify the cost that the RMOC considered to be significant for the purposes of public interest criteria 4005. Carr J considered that very question in Blair v Minister for Immigration and Multicultural Affairs [2001] FCA 1014. At [46], his Honour said:
… The applicant submitted that by failing to quantify the cost, Dr Pincus had exercised his opinion-forming power in an arbitrary manner. In my view, that is not so. His task was to form a view whether the cost was likely to be significant. I think that Dr Pincus, having found medical eligibility for long term income support in the form of the disability support pension, was entitled to form the opinion that the provision of such a pension would result in significant cost, without quantifying that cost.
At [38], his Honour said:
Next the applicant complained that Dr Pincus gave an opinion that there would be a significant cost to the Australian community:
(i) without considering Michael Courey's circumstances;
(ii) by ignoring evidence to the contrary; and
(iii)without considering, analysing, measuring or explaining "significant".
I have already considered above the arguments advanced under subparagraphs (i) and (ii) of this particular complaint. As to the assertion in subparagraph (iii) immediately above, I do not think that this complaint has been made out either. Dr Pincus identified various matters which, in the opinion he expressed, would make Michael Courey eligible for the disability support pension on medical grounds. He made a further reference to this pension as being "long-term income support". In my view, in those circumstances, it was open to Dr Pincus to form the view that such a pension would be at a significant cost to the Australian community. I do not think that he was obliged, to analyse, measure or explain why such a cost would be significant, nor did he err in law or fail to exercise any "jurisdiction" in reaching that opinion.
The decision in Blair was not on appeal, so, strictly speaking it is not binding on me. However, it has stood for some time. For reasons of judicial comity, I ought to follow it. In any event, with respect, I consider that it is correct. Accordingly, I conclude that there was no obligation on the RMOC to specify the cost that he considered to be significant for the purposes of public interest criterion 4005, and the opinion is not invalid by reason of the RMOC not specifying that cost.
Under ground 1, the applicant also provided the following particulars:
(c)As a consequence of the Australian National Audit Office Report titled The Administration of the Health Requirement of the Migration Act 1958 and tabled in Federal Parliament on 17 May 2007, the Tribunal was on notice that the RMOC could not reach a lawful opinion because the relevant Commonwealth Government Departments and specialist Physicians Colleges had not agreed what cost was considered to be significant for the purposes of PIC4005(c)(ii)(A).
The applicant’s adviser sent the Tribunal a fax dated 10 July 2007. It included various extracts from the Australian National Audit Office (“ANAO”) report tabled in Parliament on 17 May 2007. The report noted that the progress of developing guidelines for MOCs was slow and some costings for determining significant cost were out of date or incomplete. The report said that guidelines for MOCs in relation to HIV were urgently required. The report noted that there was no definition of significant cost, but MOCs generally applied a threshold of $20,000 over five years, based on average per capita health care and welfare expenditure with a 20% loading. The report noted that the first set of guidelines for MOCs was expected to be released by the end of 2007. The parties agreed at the hearing before this court that the guidelines in respect of costings for HIV had not yet been released.
The ANAO report said that the guidelines were “important for promoting uniform interpretation and implementation” of the public interest criteria. The report did not suggest that no valid decisions could be made by MOCs until the guidelines were published. In fact the report contemplates that MOCs will continue to make decisions, albeit not uniform decisions, pending the release of the guidelines.
In any event, it is axiomatic that departmental guidelines are not binding on Tribunals. If they were, guidelines made by administrators would be elevated to the level of legislation. In the present case, relevant guidelines have not been published. It cannot be supposed that the Regulations could not be applied until non-binding guidelines for their application had been published.
The Regulations vest in the MOC and the RMOC the power to make a binding medical judgment about whether there will be a significant health cost in a particular case. The Regulations were not expressly or impliedly subject to any limitation that a MOC or RMOC could only make an assessment of significant cost in accordance with an agreement between certain government departments and certain physicians’ colleges.
In the present case, the RMOC had before him a report dated
19 December 2006from the applicant’s treating specialist, Professor Fairley. That report stated that:
The current cost of antiretroviral medication in Australia varies but one of the most common combinations is Combivir and Nevirapine which presently cost $10,212 per year or $102,210 over 10 years. The cost of new treatments falls over time largely due to efficiencies achieved with improved production methods in addition to the drugs becoming generic. However, as … [the applicant] would be entitled to Medicare, he will have access to the most optimal drug treatments that will be available. That said, the bulk of the treatment costs for persons with the form and level of … [the applicant’s] condition would be incurred later in life. My understanding is that the foreseeable future is considered to range from 7 to 15 years (Abelson report page 84) and that the Abelson Report, extremely outdated as it is now, mentions a discounted lifetime cost of $159,000.
…[The applicant] is most unlikely to require treatment before 2021 when he will be 58 years of age. Assuming he lives until 70, the total cost of treatment based on current costs with be $122,544 (10,212 x 12 years). If this is averaged over the 27 years he is expected to live, this averages out to $4538 per year over his lifetime ($122,544 divided by 27). It is also reasonable to assume that this cost calculation would be discounted to take into account factors such as lower production costs, the effects of inflation, the possibility of a cure being found, improvements in treatment and the contribution a person will make via income taxation.
In view of that material, it was open to the RMOC to conclude that the cost of the applicant’s treatment would be significant within the meaning of the Regulations. The fact that Professor Fairley did not consider the cost to be significant is beside the point. It was not his opinion that was binding on the Tribunal. I do not consider that the absence of an agreement about the costs of treating HIV in any way limited the validity of the RMOC’s opinion.
I note, in passing, that the RMOC and Professor Fairley disagreed about when the applicant was likely to need anti retroviral therapy. Professor Fairley considered that the applicant would not need such therapy for about 14 years. The RMOC considered that the applicant could be expected to need such therapy in nine years, based on average decline in CD4 count, or perhaps within three years, based on the applicant’s own decline in CD4 count. If Professor Fairley’s assumption that the applicant would live to seventy continued to apply, the earlier commencement date of the therapy would add substantially to the cost. Alternatively, if the therapy was required for the same number of years, regardless of the start date, an earlier commencement would diminish the likelihood of new and cheaper treatments becoming available in the relevant time frame.
I also note, in passing, that Professor Fairley’s estimate of a cost of $4,538 per year over the applicant’s expected lifetime of 27 years (being $122,544 in total) is higher that the amount the ANAO report said MOCs generally apply, being $20,000 over five years, or $4,000 for each of five years.
The matters set out in the previous two paragraphs are simply my observations. However, regardless of those observations, the fundamental point is that it was for the RMOC to determine whether the cost was significant, not the court, not Professor Fairley, and not an administrator.
The applicant argued that no opinion by a MOC or an RMOC concerning the cost of HIV treatment could be lawful until new guidelines were issued by the first respondent’s department. That cannot be right. It is obviously preferable that up to date guidelines be issued and applied in the interests of uniform and rational decision making. However, as a matter of first principles, it is also clear that the law has to be applied, as best the relevant decision makers can, pending the publication of new guidelines.
The applicant also said in his written submissions that the RMOC’s opinion was invalid because it was based on out of date guidelines which the first respondent and the ANAO had acknowledged to be out of date. The RMOC’s opinion does not refer to any guidelines. The applicant did not indicate how it might be inferred that the RMOC relied on any particular guidelines. The submission seems to me to be entirely speculative and I do not accept it.
In connection with this submission, the applicant relied on the decision of Applicant Y v Minister for Immigration and Citizenship (2008) 110 ALD 544, [2008] FCA 367, where it was held that the MOC opinion relied on by the Tribunal in relation to the waiver of the health criterion had to be a current opinion. In Applicant Y, the MOC’s opinion was
23 months old at the time of the Tribunal’s decision. The court considered that the applicant’s health or the treatments for her condition could have changed considerably in that time.
In the present case, the RMOC’s opinion was only four months old at the time of the Tribunal’s decision. The applicant in this case did not suggest that the RMOC’s opinion itself was out of date. Rather, he suggested that it was based on out of date guidelines. However, as stated above, there was no basis for such a conclusion. On the contrary, it seems more likely that the RMOC’s opinion was based on Professor Fairley’s report dated 19 December 2004, which he reconfirmed in a report dated 19 December 2006. The RMOC specifically noted in his opinion that he had had regard to both of those reports. The applicant’s adviser communicated with the Tribunal after the last of Professor Fairley’s reports but did not suggest that anything had changed. Accordingly, I do not accept the applicant’s submissions based on Applicant Y.
The applicant submitted that the RMOC’s opinion must have a rational basis. Want of logic on the part of the Tribunal is not a jurisdictional error: VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286 at [18]. I cannot see why the RMOC’s opinion would be subject to a higher standard. In any event, I cannot see any basis for concluding that the RMOC’s opinion was not rational.
The applicant referred to the decision of Finkelstein J in X v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 429 at [25-6] where his Honour said that the Tribunal had mistakenly treated the question of significant cost as a question of fact on which reasonable minds may differ. His Honour also said that health care did not include pharmaceuticals and the RMOC’s opinion should be read down to exclude the cost of pharmaceuticals. However, that decision was overturned on appeal in Minister for Immigration and Multicultural and Indigenous Affairs v X (2005) 146 FCR 408. The Full Federal Court held that health care did include pharmaceuticals. As to significant cost, the Full Federal Court said:
Since the Tribunal did not err in relying on the opinion of the RMOC which included the cost of antiretroviral medication, there is no basis for reading down the opinion.
The net result is that the Full Federal Court in X did not specifically disagree with Finkelstein J on whether significant cost is entirely a matter for the RMOC. However, the Full Federal Court in Seligman at [53] certainly suggested that it was. That paragraph is set out above. As I understand it, whether a cost is significant is a matter of medical judgment that is vested in the MOC or RMOC as the case may be.
Finkelstein J suggested in X that significant cost could be ascertained by a form of comparative exercise with the average health costs for Australians generally. There is no legislative requirement for that approach and nor do the authorities support it. In my view, it is for the MOC or RMOC to determine whether a cost is significant based on his or her medical judgment, as suggested in Seligman at [53]. In any event, as noted above, the cost postulated by Professor Fairley in this case appears to be greater than the average health costs MOCs were said by the ANAO to generally apply.
The applicant also argued that the RMOC’s opinion was invalid because it did not comply with the PAM guidelines. Those guidelines are as follows:
130 IF THE APPLICANT FAILS THE HEALTH REQUIREMENT
130.1 Assessing the lawfulness of a MOC opinion
Note – this section only applies to MOC (including review MOC) “does not meet” opinions on the grounds that the applicant does not meet paragraph (c) of the relevant health PIC ie that the applicant is likely to be a significant cost in the areas of health care and community services and/or prejudice the access of Australians to those services.
Regulation 2.25A(3) requires the visa delegate to take the opinion of the MOC as correct for the purposes of deciding whether a person meets the health requirement. However, prior to taking a MOC “does not meet” opinion as correct, the delegate is required to assess whether the opinion is lawful. In doing this, the delegate should confirm that the MOC has:
·(1) listed the reports which they have considered in forming the opinion and
·(2) stated the health condition which the applicant has and
·(3) described the severity of the condition using a term from the following list:
· severe/significant/substantial/considerable/major (loss) etc
· inability or unable to use/walk/see/function/self care etc
· highly dependent/dependence
· requires considerable assistance
· poor control of illness
· major restrictions
· major/severe impairment
· frequent hospital admissions
· active
· stable
· asymptomatic
(the MOC may also indicate the severity of the condition by describing the services currently required by the applicant using the following phrase: [condition] is of a severity which currently requires [services]) and
·(4) described the health care or community services likely to be required by a hypothetical person who has the same condition as the applicant (including the same severity), during the period of the applicant’s intended stay in Australia. (For example, the MOC might state something like: “the applicant is likely to require dialysis for the period of stay sought. This is consistent with the health care likely to be required by a person with severe end-stage renal disease”).
Note that if the MOC “does not meet” opinion relates to a waiver case, delegates should only assess whether the MOC opinion was properly made if a decision has been made not to exercise the waiver.
If a delegate assesses that the MOC opinion has not been lawfully made, they should refer the opinion to Health Policy Section by contacting the help desk ([email protected]). After discussion with Health Policy Section, it might be appropriate to request an updated opinion from the MOC.
Contrary to the applicant’s submissions, the opinion of the RMOC did address the factors specified in the PAM guidelines. The RMOC listed the reports he had considered including the reports of Professor Fairley. The RMOC stated the health condition which the applicant has, namely, Stage 2 HIV. The RMOC stated the severity of the applicant’s condition using terms set out in the list in the PAM guidelines, namely, stable and asymptomatic (but slowly progressive). The RMOC said that anti retroviral therapy would be provided to a hypothetical person infected with HIV to the level suffered by the applicant. In any event, the PAM guidelines do not have the force of legislation and are not binding. That is, any failure to comply with the PAM guidelines would not have invalidated the RMOC’s opinion.
Ground 2: The Tribunal fell into jurisdictional error in not properly complying with section 359A of the Migration Act 1958 and denied the applicant a meaningful opportunity to comment on adverse information.
The particulars under this ground were, firstly:
(a)In a letter dated 5 July 2007, the Tribunal invited the Applicant to comment on an adverse opinion from the RMOC in which the RMOC decided that a person with the form and level of the Applicant’s medical condition would be likely to impose a significant cost on the Australian community and therefore the Applicant could not satisfy PIC 4005(c)(ii), such opinion being contrary to the opinion of the Applicant’s treating medical specialist, a world authority in his field.
(i)The Tribunal was on notice that the Applicant could not meaningfully comment on the RMOC opinion unless his treating specialist was informed as to what the RMOC considered to be a significant cost in relation to the medical condition in question and what factors were taken into account by the RMOC.
The opinion of the RMOC was binding on the Tribunal unless it was invalid. The only useful comment that the applicant could make on the opinion was that it was invalid for a legitimate reason. The opinion was not invalid because, in so far as it concerned whether the costs involved were significant, it was contrary to the opinion of Professor Fairley. Additionally, as noted in relation to ground 1, the opinion did not need to specify what the RMOC considered to be a significant cost.
Accordingly, the applicant’s right to comment on the information contained in the RMOC’s opinion was meaningful, even though the RMOC did not specify what he considered to be a significant cost. The applicant had the right to say why he considered the opinion to be invalid.
The applicant provided further particulars of ground 2(a) as follows:
(ii)The Tribunal was on notice that the Applicant’s treating specialist required clarification from the RMOC about certain aspects of the RMOC’s opinion yet the Tribunal failed to obtain the clarification sought before proceeding to make a decision.
The Tribunal was not obliged to clarify any aspect of the opinion with the RMOC. The opinion was either valid or it was not. The applicant has not established that the opinion was invalid.
The applicant provided the following additional particulars of ground 2(a):
(iii)The Tribunal further fell into error by not requiring the RMOC to inform it about what, if any, characteristics possessed by the average person with the form and level of the Applicant’s medical condition he took into account in determining that the Applicant did not satisfy PIC 4005(c)(ii)(A), such factors including, but not limited to, comparators such as age, state of health, degree of compliance with medical treatment regimes, prognosis, ability to work, pay taxes and contribute to the community.
In Robinson v Minister for Immigration and Multicultural Affairs (2005) 148 FCR 182, Siopis J said at [43]:
…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.
It was not held in Robinson that the RMOC must examine the personal factors nominated by the applicant, such as age, degree of compliance with medical regimes and ability to pay taxes. On the contrary, in Robinson, the court considered that the RMOC must consider a hypothetical person. That is what the legislation requires. Public interest criterion 4005(c) requires that the applicant:
(c)is not a person who has a disease or condition to which the following subparagraphs apply:
(i) the disease or condition is such that a person who has it would be likely to:
(A)require health care or community services; or
(B)meet the medical criteria for the provision of a community service;
during the period of the applicant's proposed stay in Australia …
The criterion does not require consideration of the particular applicant’s circumstances, but requires consideration of “a person” who has the disease or condition. The court in Robinson held that the legislation required consideration of the form or level of the condition or disease suffered by a particular applicant. However, there is no requirement to consider other details of a particular applicant’s circumstances. The legislation is not cast in terms of the particular applicant’s circumstances. It cast in terms of what “a person” who has the disease or condition suffered by the applicant would be likely to need.
Accordingly, the Tribunal did not err by not requiring the RMOC to inform the Tribunal of the particular characteristics of the applicant he took into account. All the RMOC should have taken into account, and did take into account, was the form or level of the condition suffered by the applicant. The RMOC said that the applicant was in Stage 2 HIV infection. He said the applicant was reasonably stable but slowly progressing.
Additionally, the RMOC did apply the statutory criteria to a hypothetical person who suffers from that form or level of the condition. The RMOC considered that, on the evidence provided by Professor Fairley, the applicant would in the future require anti retroviral therapy. The RMOC said that the anti retroviral therapy was “consistent with the health care that would be provided to a hypothetical person infected with HIV to the level suffered by the applicant.”
That is, the RMOC complied with the requirements set out in Robinson. The other factors mentioned in the applicant’s particulars in paragraph (a)(iii) under ground 2 were not requirements of a valid opinion as specified in Robinson. The applicant did not point to any authority which made those factors requirements of a valid opinion. I am not persuaded that they were.
The applicant provided further particulars of ground 2 as follows:
(b)The Tribunal was on notice that the Applicant had sought access pursuant to the Freedom of Information Act 1982 (Cth) to information held by the First Respondent’s Department in relation to the determination of significant cost for the purpose of PIC 4005 (c)(ii)(A) including, but not limited to, a report commissioned by the First Respondent’s Department from Dr Andrew Dalton (“the Dalton Report”) concerning the cost of medication and treatment for HIV/AIDS in Australia but nevertheless proceeded to make a decision even though the Applicant had identified that information as crucial to his ability to respond to the adverse RMOC opinion.
The applicant had sought information including the Dalton Report under the Freedom of Information Act 1982. Some information was provided to the applicant in response to the request. However, the Dalton Report was not provided on the basis that it was in a draft form and its provision could be misleading. That seems to me to be entirely proper. A draft report, by definition, is liable to change.
The applicant’s assertion that the draft Dalton Report was crucial to the applicant’s ability to respond to the RMOC opinion is not correct. As stated above, the only response that the applicant could usefully have made to the RMOC’s opinion was to say that it was invalid for legitimate reasons. The draft Dalton Report did not go to the validity of the RMOC’s opinion. The Tribunal did not err in making a decision although the Dalton Report had not been finalised and had not been given to the applicant.
Ground 3: The Tribunal erroneously failed to exercise its jurisdiction and made a decision not authorised by the Act.
The particulars set out under this ground were as follows:
(a)Despite having the power to request information relevant to the review from the First Respondent’s Department pursuant to section 363(1) of the Act and to issue a summons pursuant to section 363(3) of the Act, the Tribunal misconstrued its powers by finding it could not compel the First Respondent’s Department or the RMOC to provide it with a copy of the Dalton Report or any other information concerning the way the RMOC determined whether a person with the particular form and level of the Applicant’s medical condition would be likely to impose a significant cost on the Australian community, thereby depriving itself of evidence that was central to the issue it had identified in its reasons for decision as central to the review.
Subsections 363(1) and (3) of the Migration Act 1958 provide as follows:
(1)For the purpose of the review of a decision, the Tribunal may:
(a) take evidence on oath or affirmation;
(b) adjourn the review from time to time;
(c)subject to sections 377 and 378, give information to the applicant and to the Secretary; or
(d)require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination.
(3)Subject to subsection (4), the presiding member in relation to a review may:
(a)summon a person to appear before the Tribunal to give evidence;
(b)summon a person to produce to the Tribunal such documents as are referred to in the summons;
(c)require a person appearing before the Tribunal to give evidence either to take an oath or to make an affirmation; and
(d)administer an oath or affirmation to a person so appearing.
By fax dated 27 August 2007, the applicant’s adviser referred the Tribunal to the difficulties the applicant was having in obtaining a copy of the draft Dalton Report, and the costings for HIV treatment, and then said:
Is it possible for the MRT to obtain some further clarification on these points …?
By fax dated 4 October 2007, the applicant’s adviser said to the Tribunal:
I would be grateful if you would indicate whether the MRT will use its power to compel the production of the information sought in the interests of expedition.
The Tribunal replied by letter dated 12 October 2007 as follows:
The Tribunal considers that it cannot compel the RMOC to provide the information as suggested. In the view of the Tribunal, neither public interest criterion 4005 nor the test set out in Robinson v MIMIA [2005] FCA 1626 specifically require the RMOC to set out who considers particular medical treatment to be a significant cost to health services or why it is considered to be a significant cost. Nor is the RMOC required to state what the reasonably ascertainable costs are likely to be. The test is met if the cost if deemed by the RMOC to be significant. In the Tribunal’s view, as the law currently stands, the Tribunal has no power to go behind such a finding by the RMOC.
The Tribunal can only use its power to compel the production of information in relation to relevant information. The information sought by the applicant was not relevant to the decision to be made by the Tribunal. The Tribunal was bound by the RMOC’s opinion unless it was invalid. The applicant has not demonstrated how the draft Dalton Report and other documents sought went to the validity of the opinion.
As explained above, the RMOC was not obliged to state what the significant costs would be. Nor was the RMOC obliged to explain why he considered a particular cost to be a significant cost. Accordingly, I do not accept that the Tribunal erred in refusing to issue a summons to compel the production of the documents. Even if the Tribunal had issued a summons for the draft Dalton Report, it is very likely that there would have been an objection to the draft report being inspected by the applicant. That objection would probably have been upheld, on the grounds that the report was a draft.
Conclusion
As none of the grounds raised by the applicant has been successful, the applicant must be dismissed with costs.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Riley FM
Associate: Catherine Wilson
Date: 22 August 2008
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