Nellas v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2024] FedCFamC2G 67
•1 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nellas v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 67
File number(s): ADG 16 of 2022 Judgment of: JUDGE BROWN Date of judgment: 1 February 2024 Catchwords: MIGRATION – Application for judicial review – decision of the Administrative Appeals Tribunal – citizens of the Philippines – reliance by Tribunal on opinion of Medical Officer of the Commonwealth – application of Public Interest Criterion 4005 – consideration of apprehended bias through prejudgment – whether the Tribunal’s failure to grant late adjournment of the hearing is considered procedurally unfair – no jurisdictional error established Legislation: Migration Act 1958 (Cth) s 359AA
Migration Regulations 1994 reg 1.03, 2.25A, cl 186.244 of Sch 2, Public Interest Criterion 4005 of Sch 4
Cases cited: Blair v Minister for Immigration & Multicultural Affairs [2001] FCA 1014
BMV16 v Minister for Home Affairs [2018] FCAFC 90
Dang v Administrative Appeals Tribunal [2019] FCAFC 220
Han v Minister for Home Affairs [2019] FCA 331
Haque v Minister for Immigration & Border Protection [2015] FCCA 1765
Imad v Minister for Immigration & Multicultural Affairs [2001] FCA 1011
Minister for Immigration & Border Protection v Singh (2003) 231 FCR 437
Minister for Immigration & Border Protection v Stretton (2016) 237 FCR 1
Minister for Immigration & Citizenship v Li (2013) 297 ALR 225
Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429
Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507
Minister for Immigration & Multicultural Affairs v Seligman [1999] FCA 117
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263
Re Minister for Immigration & Multicultural Affairs: Ex-parte Lam (2003) 195 ALR 502
Robinson v Minister for Immigration & Multicultural and Indigenous Affairs (2005) 148 FCR 182
Traill & Ors v Minister for Immigration [2013] FCCA 2
Division: Division 2 General Federal Law Number of paragraphs: 164 Date of hearing: 5 October 2023 Place: Adelaide Counsel for the Applicants: Mr Young Solicitor for the Applicants: Gabito Lawyers Counsel for the First Respondent: Mr Johnson Solicitor for the First Respondent: Sparke Helmore Second Respondent: Submitting Notice filed, save as to costs ORDERS
ADG 16 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DENNIS OROPESA NELLAS
First Applicant
DARLYN TEJADA NELLAS
Second Applicant
ALEJANDRO YSMAEL TEJADA NELLAS (and others named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
1 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The first respondent’s name be amended to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.
2.Pursuant to rule 11.10(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) the first applicant be appointed as the litigation guardian for the third and fourth respondents.
3.The application filed 21 January 2022 and as amended 11 May 2023 be dismissed.
4.The first and second applicants pay the first respondent’s costs fixed in the sum of EIGHT THOUSAND, THREE HUNDRED AND SEVENTY ONE DOLLARS AND THIRTY CENTS ($8,371.30).
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION
These reasons for judgment relate to an application for judicial review of a decision of the Administrative Appeals Tribunal,[1] made 21 December 2021, which affirmed an earlier decision of a Delegate of the Minister for Home Affairs[2] not to grant the first-named applicant, Dennis Oropesa Nellas[3] a permanent visa to reside in Australia, on the nomination of his employer.[4]
[1] Hereinafter referred to as “the AAT” or “the Tribunal”.
[2] Hereinafter referred to as “the Ministerial Delegate” or “the Delegate”.
[3] Hereinafter referred to as “Mr Nellas” or “the primary applicant’.
[4] Hereinafter referred to as “the Visa”.
In general terms, such visas are referred to as subclass 186 visas and are issued pursuant to the provisions of the Migration Act 1958 (Cth).[5] It is a requirement of these visas that the relevant nominating employer has a labour agreement, as defined by regulation 1.03 of the Migration Regulations 1994,[6] with either the Commonwealth Government or a recognised labour organisation to enable it to recruit staff, from overseas, who have suitable skills to enable them to be employed in Australia.
[5] Hereinafter referred to as “the Act”.
[6] Hereinafter referred to as “the Regulations”.
The various applicants are a family. Mr Nellas is the primary applicant. Darlyn Nellas - the second respondent – is his wife.[7] Alejandro and Denise Nellas – the third and fourth respondents respectively – are their children.[8] Each of the applicants must satisfy the regulatory criteria attaching to the visa.
[7] Hereinafter referred to as “Mrs Nellas”.
[8] Hereinafter referred to as “Alejandro” and “Denise”.
Each of the applicants is a citizen of the Philippines. Mr Nellas arrived in Australia in 2013, with Mrs Nellas and Alejandro and Denise arriving in 2015. Mr Nellas was recruited to be employed as a skilled abattoir worker, firstly at a meat processing plant in Bordertown and more recently at one in Port Wakefield, in South Australia. The family currently live in Balaklava, where Denise attends Balaklava High School and Alejandro attends Balaklava Primary School.
There is no controversy that Mr Nellas is a highly skilled worker in his field and his current employer is authorised to recruit staff from overseas to fill vacancies in its workforce which cannot be satisfied from the Australian workforce.
However, notwithstanding his satisfaction of these criteria, the grant of the visa is subject to the satisfaction of other conditions, which are specified in the applicable regulatory regime. In particular, as a consequence of clause 186.244 of Schedule 2 to the Regulations, each member of the family unit of the relevant visa applicant must satisfy the requirements of public interest criterion 4005.[9]
[9] Hereinafter referred to as PIC 4005.
In general terms, the regulatory intent of PIC 4005 is directed towards protecting members of the Australian community from potential threats which may arise to public health, in both actual and fiscal terms, from those applying to be permanent residents of Australia. These objectives can be summarised in the following terms:
·That the Australian community be protected from any threats to public health posed to it by any prospective permanent residents;
·That the exposure of the Australian public to expenditure on health and community services arising from the need of any such prospective permanent residents be contained; and
·That the access of Australian residents to health and other community services in short supply be safeguarded.
For these reasons, the applicable regulatory regime envisages mechanisms for visa applicants and members of their family to undergo compulsory medical examination in the context of these considerations. Alejandro has special educational needs and was subject to such a medical examination.
As will be expanded upon hereunder, the relevant regime envisages the calculation of the prospective exposure of the Australian public to any liability to provide health and community services to a visa applicant, such as Alejandro, by comparing a person with his level of disability to a hypothetical individual, with the same level of incapacity. In this context, it is not relevant to the application of the public interest criterion that the actual person does not envisage that they will utilise such health services to the degree estimated for such a hypothetical individual.
It is the conclusions reached by relevant decision makers, following that medical examination, within the overall regulatory scheme, which is the subject of the current proceedings, particularly whether the decision to reject the visa application, on the basis of Alejandro’s assessment, can be characterised as being legally unreasonable.
Other issues arise as to whether it was procedurally unfair to decline to grant Mr Nellas an adjournment of the proceedings before the AAT to enable him to consider some evidence recently provided by the Department regarding what it assessed to be the costs of publicly funded health and community services to a person with special needs similar to those of Alejandro for the period during which his visa, if granted, would be current.
Again, it is the position of the primary applicant that the failure to grant this adjournment rendered the proceedings before the Tribunal procedurally unfair to him too such a degree that it would be legally unreasonable to allow the relevant decision to stand.
BACKGROUND
PIC 4005(1) is in the following terms:
The applicant:
(aa)if the applicant is in a class of persons specified by the Minister in an instrument in writing for this paragraph:
(i)must undertake any medical assessment specified in the instrument; and
(ii) must be assessed by the person specified in the instrument:
unless a Medical Officer of the Commonwealth decides otherwise; and
(ab)must comply with any request by a Medical Officer of the Commonwealth to undertake a medical assessment: and
(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 free from a disease or condition in relation to which:
(i) a person who has it would be likely to:
(A) require health care or community services: or
(B) meet the medical criteria for the provision of a community service: during the period described in subclause (2); and
(ii)the provision of the health care or community services would be likely to:
(A)result in a significant cost to the Australian community in the areas of health care and community services; or
(B)prejudice the access of an Australian citizen or permanent resident to health care or community services;
regardless of whether the healthcare 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 - has provided the undertaking.
Axiomatically, the question of whether any particular visa applicant does or does not satisfy these various health considerations is a matter of medical expertise. The manner in which PIC 4005 is to be applied to each relevant visa applicant, particularly in satisfaction of the various health considerations, is also mandated by the Regulations.
Regulation 2.25A renders it obligatory for the Minister to seek the opinion of a Medical Officer of the Commonwealth[10] as to whether any particular applicant meets the requirements of PIC 4005. Significantly, in the context of the current proceedings, regulation 2.25A(3) provides as follows:
The Minister is to take the opinion of the Medical Officer of the Commonwealth on a matter referred to in sub regulation (1) or (2) to be correct for the purposes of deciding whether a person meets a requirement or satisfies a criterion.
[10] Hereinafter referred to as a MOC.
It is common ground between the parties that regulation 2.25A(3) does not oblige a decision maker to accept a relevant opinion of a Commonwealth Medical Officer uncritically but rather requires an assessment of the specific nature and extent of the condition of the person subject to examination. In Robinson v Minister for Immigration & Multicultural and Indigenous Affairs (‘Robinson’)[11] Siopis J held as follows:
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.
[11] Robinson v Minister for Immigration & Multicultural and Indigenous Affairs (2005) 148 FCR 182 at [43].
On 7 September 2017, the primary applicant applied for the relevant visa in the labour agreement stream. On 19 September 2017, such an MOC assessed Alejandro, who was born on 23 August 2011 and found that he suffered from a moderate global developmental delay attributable to him having a background of autism spectrum disorder.
The MOC further concluded that a hypothetical person, who had the same condition as Alejandro, at the same level of severity, would require on-going health care and/or community services, which would result in a significant cost being accrued to the Australian community. As such, it was determined that Alejandro did not satisfy PIC 4005(1)(c)(ii)(A) as set out above.
The expression health care is not specifically defined under the Act or the Regulations made under it. Under policy provided to MOC’s, it is taken to include community health care and disability services. Regulation 1.03 of the Regulations defines the expression community services. It is taken to include the provision of social security but is not more specifically defined. Again, policy indicates it is taken to include specialist educational services.[12]
[12] See MOC Advice Pack at page 14.
The primary applicant was invited to comment on these conclusions and did so under cover of a letter from his adviser dated 25 June 2018, which provided reports from Alejandro’s treating specialist and an occupational therapist. In this context, another MOC reached the same conclusion as that reached by the first on 2 October 2018.
In this context, on 10 January 2019, the Ministerial Delegate found that Alejandro did not meet the health requirement arising under PIC 4005(1) in respect of containing public expenditure on health and community services and, as a result, declined to grant the applicant and his associated family members the relevant visa.
In these circumstances, on 27 January 2019, the primary applicant applied to the AAT for a review of the delegate’s decision. On 13 October 2021, the Tribunal invited Mr Nellas and his family to attend a hearing to advance arguments and provide evidence in support of their visa applications. This hearing was scheduled for 10 November 2021.
In the period leading up to this hearing date, further documentation was provided to the Tribunal relating to Alejandro. This included the following:
·His mid-year (2021) school report from Balaklava Primary School;
·A report from his speech pathologist Jami Weinel dated 16 June 2021;
·A report from his occupational therapist Vanessa Vincent dated 24 December 2020; and
·A report from his paediatrician Dr Agrawal dated 13 July 2020.
In the light of this material, the primary applicant requested a deferment of the hearing scheduled for November in order to allow a further MOC opinion to be obtained in respect of Alejandro. The Tribunal acceded to this request and adjourned the hearing to 21 December 2021.
On 23 November 2021, a further Commonwealth Medical Officer concluded that Alejandro did not meet the health requirement as the educational support and assistance required by him for daily living, arising from his global development delay, would result in a significant cost being incurred by the Australian community, in the area of health care and/or community services.
The relevant opinion described Alejandro as a 10-year-old person with moderate development delay in association with a diagnosis of autism spectrum disorder, who required assistance with educational support and assistance with the activities of daily living. The MOC considered 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…
Provision of these health care and/or community services would be likely to result in a significant cost to the Australian community…
The period of time to which this assessment related was described as being the period of a permanent stay in Australia.[13]Alejandro’s condition is characterised by the relevant MOC as being permanent.
[13] See Court Book at page 124.
In addition, of some significance given the grounds for judicial review advanced before this court, the MOC further delineated the material on which the opinion was based. This included the following:
·Assessment of Activities of Daily Living Examination in respect of Alejandro undertaken by Dr Wang on 14 September 2017 and which was expressed to expire on 15 September 2018;[14] and
·A medical report of Dr Wang undertaken in respect of Alejandro arising from a medical examination on 14 September 2017 and which was expressed to expire on 19 September 2018.[15]
[14] See Annexure EZ-8 to the affidavit of Elaha Zafari filed 5 June 2023.
[15] See Annexure EZ-9 to the affidavit of Elaha Zafari filed 5 June 2023.
These reports were undertaken when Alejandro was aged six years of age and were expressed to have currency until he was seven years of age. As such, it is submitted that they are irrelevant to the assessment of a ten-year-old person, particularly one who had been successfully attending a mainstream primary school.
On 14 December 2021, the primary applicant’s advisor requested that the relevant MOC provide a breakdown of the costs of the services, which had been identified as being required by Alejandro, as a consequence of his condition and that the hearing scheduled for 21 December be further deferred so that consideration be given to such a breakdown, when provided.
The following day (15 December 2021) the Tribunal responded to this request and indicated that it had urgently sought advice from the relevant MOC regarding the cost breakdown sought. The Department had provided a global figure of $597,460.00 for a ten-year period.[16] Given the information requested had been provided, the Tribunal declined to adjourn the hearing scheduled for 21 December 2021.
[16] See Court Book at page 131 – 132.
In respect of the decision not to adjourn the proceedings, at about 5.30 pm on 15 December 2021, the Tribunal wrote as follows:
The Member instructed that the Department be contacted urgently to provide MOC costings breakdowns. The Department provided this information to us in a rapid manner (on the same date of our request of 15 December 2021). The member has also considered your request to defer the hearing to another date, however has decided not to postpone the hearing, as you have now been provided with the information requested within 24 hours of your request. The hearing will proceed on December 21st.[17]
[17] See Court Book at page 131.
THE DECISION OF THE AAT
In the formal determination of the AAT, the member concerned provided additional reasons for declining the adjournment request, indicating that the costing breakdown document was contained in a one-page document and as such, in the circumstances, the primary applicant had been given sufficient time to consider its contents, particularly given the amount of notice which had been given in respect of the 21 December hearing.[18]
[18] See Court Book at page 212 [24].
As a consequence of this decision, the hearing took place as scheduled, with the applicants being legally represented. The hearing record indicates that the hearing took place over a period of approximately one hour and twenty minutes, which included the time of an adjourned period of fifteen minutes. In addition, the primary applicant’s adviser provided written submissions to the Tribunal on 15 December 2021, which included evidence of the fact that the applicant had access to private health insurance.
During this hearing Mr Nellas gave evidence, along with a family friend, Mr Malwali. The effect of their evidence was that Alejandro would not be a financial burden on the Australian community as he was currently attending a mainstream school and his medical expenses (other than those met by Medicare to which Mr Nellas had access) were being met by his parents, who had private health insurance.
In addition, the effect of Mr Nellas’ evidence was that Alejandro’s educational expenses were absorbed by his school, who had employed extra teachers.[19] In this context, Mr Malwali provided evidence regarding the success of Balaklava Primary School in providing for special needs children in its special education unit.
[19] See transcript of proceedings at page 11.
The Tribunal summarised Mr Nellas’ evidence in the following terms:
The Tribunal heard evidence from the primary applicant, in which he assured the Tribunal that his son the secondary applicant, Master Alejandro Ysmael Tejada Nellas, would not be a financial burden on the Australian people. He explained that his son was functioning quite well with their assistance and they were meeting his additional medical costs. It was explained that whilst his son was minimally verbal, he was able to successfully communicate through other gestures. He is attending school as a main-stream student. The Tribunal acknowledges that the family are trying to support the additional needs of the fore mentioned applicant without creating a burden upon society. It was obvious to the Tribunal that the applicant was passionately attempting to do the best he possibly could for his family, whilst working very hard within his community.[20]
[20] See Court Book at page 212 [25].
In its decision, the Tribunal recorded that the central issue in the merits review before it was whether PIC 4005 had been satisfied in respect of Mr Nellas and each member of his family. As such, it noted that it was required to seek the opinion of an MOC unless the application was for a temporary visa, which was not the case in the present matter.
The Tribunal further noted that three such opinions had been sought in respect of Alejandro, the most recent of which was dated 23 November 2021. The Tribunal cited this MOC, in its decision, verbatim. In this context, the Tribunal noted that it must take the MOC opinion as correct, but must first be satisfied the MOC has applied the correct test in forming the opinion. The relevant test was expressed in the following terms:
[T]he opinion must identify the medical condition to which the public interest criterion has been applied and the form or level of the condition suffered by the applicant.[21]
[21] See Court Book at [29].
The MOC, as cited by the Tribunal, indicated that Alejandro suffered from a global development delay of moderate severity in association with a diagnosis of autism spectrum disorder which required educational support and assistance with activities of daily living. Given this formulation, the Tribunal was satisfied that the MOC had correctly stated the form or level of the condition suffered by Alejandro.
The MOC in question went on to state that it was considered 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 which would be likely to include special education services and Commonwealth disability services.
Given this statement, the Tribunal indicated that it was further satisfied that the MOC correctly applied the test stipulated in Robinson namely reference had been made to a hypothetical person who suffered that form of level or the condition in question. It was also satisfied that the MOC had correctly identified the correct period of assessment which was for the period of a permanent stay in Australia.
Thereafter, the decision cited the estimated health and educational costs likely to be incurred by Alejandro over the relevant period verbatim. As previously noted, the figure concerned was $597,460.00 – the major components of which were special education services, over a period of ten years, at $27,882.00 per annum; and Commonwealth disability services over a period of eight years at $27,405.00 per annum.
The transcript of proceedings provided by the primary applicant indicates that the Tribunal member made reference to the relevant figure provided in the Departmental Procedure Advice Manual[22] for decision makers, which as previously indicated, in this context was a sum of $49,000.00 over a period of ten years, which axiomatically was far less than the breakdown recently provided.[23] This is because Alejandro’s condition has been assessed as being permanent.
[22] Hereinafter referred to as “the PAM”.
[23] See transcript of proceedings at page 10. The relevant amount was increased to $51,000.00 in September of 2021.
Given the terms of the MOC, which the Tribunal considered was in conformity with the required regulatory regime and the quantum of the breakdown of costs which had been provided, the member concerned considered that she did not have a discretion, in the circumstances, to either grant the visa sought or remit the application back for further consideration by a Ministerial Delegate, notwithstanding the sympathy which she held for Mr Nellas and his family.
In these circumstances, the Tribunal considered that it was subject to a statutory duty, arising under section 359AA of the Act, to provide particulars to Mr Nellas of the information available to it which had resulted in it reaching the conclusion that it must affirm the relevant decision under review. It summarised how this adverse information was conveyed to Mr Nellas in the following terms:
The Tribunal explained that the MOC's most recent report and the associated costing breakdown, both of which had been given to the applicant prior to the hearing constituted adverse information, even though the information was already known to the applicant. The Tribunal explained that this adverse information is relevant because 'If your son is unable to meet the health requirements to pass PIC 4005, needed to meet the requirements of the 186 visa, which has been clearly established by 3 separate MOC assessments that he can't meet those health requirements, none of you are able to meet those requirements.'
The Tribunal then went on to say why the information is relevant. 'I have no discretionary power in this issue. I will not be able to remit the decision of the Minister's delegate. In other words, the visa cannot be granted and the decisions not approving the visas stay as they are. I will not be able to overturn the delegate's decision.' [24]
[24] See Court Book at 214 [33] – [34].
The proceedings were then adjourned for a short period of around 15 minutes to allow the primary applicant to comment on this adverse information. In these circumstances, the response of Mr Nellas was summarised by the Tribunal in the following terms:
[The primary applicant] proceeded to explain to the Tribunal that his son was being looked after by the family, was managing well at school, which he enjoyed and had friends in the community. He also explained that they were meeting any medical costs not met by Medicare and that they were not contributing to the additional support provided by the school needed to support his son. He was candid and explained to the Tribunal that he and his family wanted to stay in Australia for a better standard of living and the opportunities on offer. It is not overlooked by the Tribunal that it is reasonable to assume that the family would have a better standard of living, more substantial educational opportunities for their 2 children and more comprehensive support for their son with his additional needs, if they remained in Australia.[25]
[25] See Court Book at 214 at [36].
Thereafter, the Tribunal reiterated its view that it had no discretion to consider any outcome other than that reached by the Ministerial Delegate given its determination that the opinion of the MOC had been properly obtained and pursuant to the provisions of regulation 2.25A(3) such opinion was to be taken as being correct.
The Tribunal found as follows:
As previously stated, the Tribunal has no discretionary power available to it in this matter. It is unable to remit the delegates decision.
Accordingly, based on the opinion of the MOC, the secondary applicant, Master Alejandro Ysmael Tejada Nellas does not satisfy public interest criterion 4005(1)(c).
The Tribunal has determined that the requirements of regulation 186.244(2) have not been met and therefore regulation 186.244 is not met.
As clause 186.244 is not satisfied, the criteria for the grant of an Employer Nomination Scheme (subclass 186) visa are not satisfied.[26]
[26] See Court Book at 214 at [37] – [40].
As a consequence, the Tribunal affirmed the Delegate’s decision not to grant the applicants the Employer Nominated permanent visas sought by them.
THE CURRENT PROCEEDINGS
On 21 January 2022, the applicants commenced the current proceedings seeking a judicial review of the AAT’s decision. This application was amended on 11 May 2023. It contains some nine grounds of review, which are supported by lengthy paragraphs which have the nature of submissions. It is not an easy document to follow. It is repetitive in nature. Doing as best I can, I summarise the grounds in general terms as follows:
(1)The proceedings were procedurally unfair due to the failure to grant the adjournment requested on 14 December 2021 so the applicants could consider the costing breakdown recently provided to them;
(2)The decision itself was legally unreasonable because of the failure to grant the adjournment;
(3)The decision was an improper exercise of power;
(4)The Tribunal failed to consider all relevant facts;
(5)The Tribunal failed to properly apply PIC 4005;
(6)The Tribunal fell into jurisdictional error by relying on the opinion expressed in the third MOC which was legally unreasonable;
(7)The Tribunal failed to comply with section 65 of the Act;
(8)The Tribunal fell into jurisdictional error by relying on the costing breakdown provided to it; and
(9)The Tribunal was biased when it indicated it had no discretionary power in the issue. This amounted to an unacceptable prejudgment of the case.
However, during the hearing of the application, counsel for the applicants, Mr Young indicated that he would proceed only with grounds two, six and nine.
On 20 June 2023, the applicants’ solicitor, Ms Zafari filed an affidavit to which was attached the following documents:
·The PAM applicable to MOC;
·The advice pack provided to Commonwealth Medical Officers;
·The medical report and daily living assessment prepared by Dr Wang in September of 2017 and which were expressed to expire in September of 2018; and
·A transcript of the proceedings of 21 December 2021.
THE SUBMISSIONS OF THE APPLICANTS
The contents of the third MOC
It is the submission of the applicants that the third MOC is affected by jurisdictional error in that it relies on outdated and expired information and is therefore not an opinion in the sense envisaged by the applicable legislative and regulatory framework. In these circumstances, the applicants assert that if the MOC is so affected, then the decision of the Tribunal is also flawed by jurisdictional error.[27]
[27] See Traill & Ors v Minister for Immigration [2013] FCCA 2 at [21] per Judge Driver.
The third MOC did not involve an actual medical examination of Alejandro himself. Rather, in assessing whether it was likely there would be significant costs imposed on the Australian community in respect of providing health care and/or community services to him the relevant Commonwealth Medical Officer had regard to the information available as at 23 November 2021.
In the relevant MOC these comprised two categories:
·Firstly, the two reports compiled by Dr Wang in September of 2017 which were described as the visa medical examination and the assessment of activities of daily living and were organised by the Department;
·A variety of other documents emanating from doctors and allied health professionals who were treating Alejandro, along with his 2021 mid-year school report.
In the third MOC the relevant Commonwealth Medical Officer referenced a report from Alejandro’s consultant paediatrician, Dr Agrawal, but indicated it had not been read because it had not been actually forwarded with the other material. In addition, in all three MOC the reports of Dr Wang are incorrectly indicated as being dated 14 July 2017.
It is the submission of Mr Young that it is apparent that the first Commonwealth Medical Officer made a typographical error in compiling the first MOC, which error has been slavishly replicated by each of the subsequent Medical Officers. As such, it is the contention of the primary applicant that this demonstrates, in a fundamental manner, the failure of the third MOC to discharge its function as characterised in Robinson, namely, to consider the idiosyncratic circumstances of Alejandro.
In his letter,[28] Dr Agrawal describes Alejandro as a patient of the Women’s and Children’s Hospital, who has been diagnosed with autism spectrum disorder and associated issues. He further opines that Alejandro is disadvantaged by reason of not having sufficient access to appropriate medical and allied health intervention. It has the form of a letter of support rather than a medical assessment.
[28] See Court Book at page 122.
The two earlier MOC’s (dated 19 September 2017 & 2 October 2018) reference the same material as in the third, other than the material provided by the primary applicant which post-dated each of them. In the case of each of the three MOC’s, other than in changing the age of Alejandro and the date of the certificate, to all intents and purposes, with one significant exception, each of the MOC’s is in identical form, which is as follows:
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 ***[29] person with:
[29] This referred to Alejandro’s age at the time the MOC in question was issued.
Moderate developmental delay
Form and severity of the applicant's condition: The applicant has a moderate global developmental delay on a background of Autism Spectrum disorder. Provision of services to a hypothetical person with the applicant's condition: A hypothetical person with the same condition of a similar severity would require Commonwealth and state disability services as well as special education services. This condition is likely to be Permanent.
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. ·
Theseservices would be likely to include:
State disability services
Special education services
Commonwealth disability servicesProvision 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 one exception appears in the second MOC dated 2 October 2018, where the relevant Commonwealth Medical Officer wrote as follows:
This opinion is provided following the more recently provided medical information noted above being received from the visa applicant following the MOC opinion of 19 September 2017. The previous MOC opinion should be disregarded for the purpose of visa decision, as the current opinion is based on the more up-to-date information available.
It is noted from the additional information that the applicant has made some gains in regard to school participation, but that overall continues to have significant developmental issues.[30]
[30] See Court Book at page 47.
Accordingly, notwithstanding this acknowledgement of gains on Alejandro’s part, the opinion of the second MOC remains in conformity with the opinion in both the first and third opinion.
It is the submission of Mr Young that, in these circumstances, it is evident that the Commonwealth Medical Officer, who conducted the third assessment, did not engage in any meaningful intellectual sense, with the material placed before the Department, but merely regurgitated, without any attempt at analysis, what had been said before by others.
In particular, the third Commonwealth Medical Officer did not allude at all to the fact that Alejandro was at a mainstream school and there was some evidence of gains on his part. In this context, no attempt was made to engage with the material provided by the Balaklava Primary School.
Essentially, as I understand the submission, the cataloguing of the material placed before the Commonwealth Medical Officer concerned was tokenistic in nature and not in keeping with the directions of the applicable PAM. In particular, no attempt was made, as at November 2021, to gauge what further progress Alejandro had made at his mainstream school or to garner other medical material, from Dr Agrawal, Dr Baulderstone or either his occupational therapist or speech therapist. In these circumstances the third MOC did not entail any proper, genuine and realistic consideration of the criteria required to be considered under PIC 4005 by the relevant Commonwealth Medical Officer.
In this context, Mr Young relies on the oft-quoted passage of Gleeson CJ in Re Minister for Immigration & Multicultural Affairs: Ex-parte Lam[31] where he said as follows:
Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
[31] See Re Minister for Immigration & Multicultural Affairs: Ex-parte Lam (2003) 195 ALR 502 at [37].
Mr Young has also made reference to Minister for Immigration & Citizenship v SZIAI[32] the majority of the High Court (French CJ, Gummow, Hayne, Kiefel and Bell JJ) said as follows:
It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.
[32] Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429 at 436 [25].
In this context, it is Mr Young’s submission that both the Commonwealth Medical Officer and the ultimate ministerial decision-maker could have easily made an inquiry regarding Alejandro’s progress at primary school and its failure to do so, when coupled with the formulaic nature of the third MOC, has resulted in a situation of practical injustice to the applicants.
This injustice has arisen in the manner in which the degree to which Alejandro met or did not meet the necessary health requirements has been assessed and how the required opinion was provided to the decision maker. This represents a failure to exercise properly the jurisdiction conferred upon it.
As previously indicated, Ms Zafari sought the two reports of Dr Wang, which are referenced in each of the MOC’s concerned. In the Activities of Daily Living Examination Dr Wang, in answer to the pro forma question Are there any physical or mental conditions which may prevent this person attending a mainstream school, gaining full time employment or living independently now or in the future? has answered yes.
Other aspects of the assessment indicated that at aged 6, Alejandro had a limited capacity for self-care and minimal capacity for comprehension and social interaction. The comment of Dr Wang was that Alejandro has autism…limited intellectual ability, mental and cognitive status in keeping with autism spectrum disorder, global development delay, language impairment, hyperactivity and deficits in verbal and non-verbal communication and social interaction.
These comments were repeated in the medical examination report. Significantly, in the submission of Mr Young, Dr Wang stated as follows:
Limited intellectual ability, mental and cognitive status in keeping with Autism Spectrum Disorder. Refer to paediatric report. Further assessment is required before commencing school next year as per father.
As previously indicated, each of these reports are expressed as having a currency of one year and their examination status is thus expressed as being expired. In addition, it is submitted that it is significant that none of the subsequent Commonwealth Medical Officers alluded to the fact that Alejandro was attending a mainstream school and whether this factor necessitated a more thorough examination of the child and a revision of the expired assessment of Dr Wang.
The more recent material, provided by the primary applicant and referenced in the third MOC, does mention that Alejandro is attending a mainstream primary school. In her report dated 24 December 2020, Ms Vincent, Alejandro’s occupation therapist confirms the diagnosis of autism spectrum disorder and global developmental delay and recommends strategies to assist him in transition between activities at school, sensory strategies to support regulation, fine motor skills, behaviour, toileting, sleep and eating. In her recommendation, Ms Vincent wrote that:
Alejandro and his family will require ongoing therapy and support to continue to achieve the goals identified above. It is anticipated that Alejandro will access this via a private Occupational Therapist under his Helping Children with Autism funding package.[33]
[33] See Court Book at page 121.
Ms Weinel, Alejandro’s speech pathologist, in her report dated 16 June 2021, recommends that he would benefit from ongoing speech therapy. She wrote as follows:
Alejandro was referred to Regional Speech Pathology to support his receptive and expressive communication skills. He currently lives at home with his parents and siblings and attends Balaklava Primary School where he is currently receiving his schooling within the Disability Unit. He has been diagnosed with Autism Spectrum Disorder, and an intellectual impairment. He currently receives fortnightly speech pathology sessions at school.[34]
[34] See Court Book at page 117.
In his written submissions, Mr Young submits as follows:
Alejandro is now 10 years old and has three years of useful development within a caring community and school environment. Despite the previous MOC report stressing the importance of updates and Alejandro's developments, there is no attempt in the third MOC report to follow up all those conditions, or, more importantly, the status of his medical condition. There could therefore be seen as a complete lack of current evidence concerning crucial medical information, particularly with the lack of an updated report from the principal treating psychologist and Doctor. Such a lack of evidence in making an MOC report is a ground of jurisdictional error, as it is a failure to address PIC 4005 (1) (c) in that no evidence is provided confirming that the 10-year-old Alejandro has the condition attributed to him.[35]
[35] See the applicant’s submissions filed on 11 May 2023 at page 12.
In all these circumstances, Mr Young submits that the third MOC lacks a clear and intelligible justification for reaching the conclusion which it did and lacks an internal degree of logic. He further asserts, as I understand it, that it is vitiated by a significant number of mistakes. In this context, he drew the court’s attention to Traill v Minister for Immigration & Citizenship[36] in which Judge Driver said as follows:
In my view, the MOC report was so uninformative that it was impossible for the Minister’s delegate to rely upon it in order to make a decision on the visa application by Mr and Mrs Traill. In the words of Siopsis J in Robinson at [43] the MOC failed to properly ascertain the form or level of the condition suffered by Mr Traill and then proceeded to make an assessment at a higher level of generality by reference to a generic form of an unidentified condition. Because the MOC opinion was unreliable, and the delegate did rely upon it, there was a constructive failure of jurisdiction, and the applicants should receive the relief they seek.
[36] Traill v Minister for Immigration & Citizenship [2013] FCCA 2 at [47].
Mr Young would characterise the third MOC as being similarly unreliable and therefore the reliance placed upon it, in the decision-making process, led to a constructive failure of jurisdiction by both the Ministerial Delegate and subsequently the AAT.
In addition, Mr Young relied on Haque v Minister for Immigration & Border Protection.[37] The case concerned the issue of a MOC relating to a twelve-year-old child who was a dependent upon a visa applicant. She suffered from developmental delay and autistic spectrum disorder and as a consequence was required to undergo a medical examination pursuant to the provision of PIC 4005.
[37] Haque v Minister for Immigration & Border Protection [2015] FCCA 1765.
A number of medical opinions were obtained, which had differing views as to the extent of the impact on the child of her ability to function in daily life and the implications of this for possible public funding of her needs. One assessed her as being able to attend to all activities of daily living. Shortly prior to the relevant hearing, another assessed her as being totally dependent in all of her activities of daily living. Accordingly, the situation prevailing at the time of the hearing was that there were two essentially contradictory opinions in respect of the child.
In these circumstances the relevant applicant wrote to the Tribunal asserting that this latter assertion of total dependency was wrong and requested time to obtain a further opinion, which was declined and the Tribunal in question proceeded with its review. The Tribunal stated that it had not been established that the second opinion was based on incorrect information, rather the dispute was with the outcome.
In the case Judge Smith held as follows:
I accept that the RMOC, like the MOC beforehand, was required to form his or her own opinion about whether or not PIC 4005 was satisfied. That is the effect of the Regulations. However, that opinion, like any opinion, in order to be valid in the sense of legally effective, must be based upon material including facts based upon material which are logically probative of that opinion. It must be the case, as the RMOC is exercising statutory power, that he or she is required to act reasonably. That requirement in turn necessitates that there be a logical basis for the opinion. As was the case here, the opinion was based upon a fact for which there was no evidence or any other logical basis, and that opinion was not one formed according to law. That being so, the Tribunal was not bound to accept it and, because it considered that it was bound to accept it, it failed to properly exercise its jurisdiction and thereby fell into jurisdictional error.[38]
[38] Haque v Minister for Immigration & Border Protection [2015] FCCA 1765 at [53].
Judge Smith went on to find that the failure to grant the applicant an adjournment to obtain a further medical opinion was unreasonable to such a degree as to affect the exercise of the jurisdiction conferred on the Tribunal concerned. In these circumstances, the decision was set aside.
It is the submission of the applicants that the various criticisms which have been made by them in respect of the third MOC are analogous to those arising in Haque and demonstrate that the Commonwealth Medical Officer concerned did not act in a legally reasonable manner and in providing the relevant opinion did not give the material available a proper, genuine and realistic consideration. As such the resulting decision of the Tribunal is vitiated by jurisdictional error.
Failure to grant adjournment
It is the submission of Mr Young that the failure of the Tribunal to grant the adjournment sought on behalf of Mr Nellas approximately six days prior to the scheduled date of hearing on the basis that at this stage it had provided the breakdown of costs relating to community care to be provided to Alejandro was procedurally unfair. Given the short time frame involved, it is asserted that it was impossible for the primary applicant and those advising him to obtain any independent advice on how those costs had been calculated or undertake their own detailed analysis.
It is further asserted that it is evident that the costing provided has emanated with the Department rather than the MOC concerned. In this context, it is submitted that the applicable regulation requires the Department to obtain an opinion from a Commonwealth Medical Officer about the various considerations listed in PIC 4005, not provide the details itself. It is evident that this has occurred because each of the previous MOC (and indeed the third), on their respective faces, merely assert the provision of health care and/or community services to Alejandro would result in a significant cost to the Australian community.
In addition, Mr Young submits that the costings actually presented are, in themselves erroneous, as they refer to a ten-year period and do not account for the fact that the evidence indicates that Alejandro’s family have provided support for his needs over a period of the preceding three or four years.
This submission relies on the fact that one of the costings provided reads as follow:
Commonwealth disability services - $9,800 x 8.0 years = $78,400
Comments NDIS ages 7-14[39]
[39] See Court Book at page 132.
Another indicates level 3 special education ages 6 – 16. In these circumstances, Mr Young points to the fact that Alejandro was 10 at the time of the relevant MOC and therefore these costings are evidently erroneous.
Apprehended bias through prejudgment
Mr Young submits that in indicating during the hearing that the Tribunal had no discretion in respect of the case before it, given the contents of the MOC provided to it, the Tribunal had exhibited bias on the basis of prejudgment of the case, particularly in not giving consideration to the fact that the MOC opinion might be erroneous on the basis that it was not consistent with the evidence provided by the primary applicant and the Balaklava Primary School, which indicated that Alejandro’s special needs were being supplied in a mainstream school.
THE SUBMISSIONS OF THE MINISTER
It is the submission of Mr Johnson, counsel for the Minister that the Tribunal correctly applied the criteria contained in regulation 2.25A and properly sought and considered the opinion provided to it in the third MOC, which it was bound to consider correct. In this context, it is Mr Johnson’s submission that it cannot be demonstrated that this opinion provided was in any way jurisdictionally compromised on the basis that it referred to out of date information or information that had expired and therefore the provision of PIC 4005(c) had been construed in a legally unreasonable manner by the relevant Commonwealth Medical Officer.
Rather the information provided to the relevant Commonwealth Medical Officer, in a number of reports from 2017 onwards, covered a range of time periods in respect of Alejandro and each such report was consistent with the others, in the sense that each indicated he had a permanent condition, which was of moderate degree, which would require the imposition of significant cost on the Australian community in respect of the provision of health care and/ or community services to him. Accordingly, no jurisdictional error was apparent arising from the material considered by the relevant Medical Officer.
Mr Johnson submits that the manner in which PIC 4005 is to be applied was set out by Heerey J in Imad v Minister for Immigration & Multicultural Affairs[40] as follows:
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”.
[40] Imad v Minister for Immigration & Multicultural Affairs [2001] FCA 1011 at [13].
As I understand this passage, the relevant criterion requires the Commonwealth Medical Officer to consider not the individual applicant for the visa sought but a hypothetical person with that applicant’s condition. It is not an assessment of what is likely to be the public health expenditure provided to such an individual applicant but rather an estimate of whether the expenditure to such a hypothetical person would result in a significant cost to the Australian community.
Mr Johnson submits that the dates of the 2017 reports and the fact the information contained in them is characterised as having expired does not preclude the Commonwealth Medical Officer from having regard to them in considering the application of PIC 4005 to the case concerned or otherwise negate the validity of assessment of Alejandro’s current condition.
The evidence available indicated that Alejandro suffered a moderate degree of developmental delay at age 7 and at age 10. Contrary to the situation prevailing in Haque the applicants themselves did not challenge the diagnosis and had not provided any evidence that the child’s condition had changed since 2017. In his written submission, Mr Johnson indicated as follows:
[T]here is no error in the MOC referring to information in the form of an “expired” Department health assessment if that is the best and available information the MOC has in order to assess the health condition of the applicant for the purposes of its assessment. What the applicant fails to appreciate is that the MOC had a range of material before it (provided, it should be noted, by the applicants themselves), and it was cognisant of the dates of the reports it took into account. Nothing from the MOC report suggests that the MOC relied upon information that was contradicted by more current information. Just as a doctor examining a patient may have regard to historical medical information as part the process of forming a current diagnosis, the MOC was not prohibited from considering earlier provided information in order to arrive at a conclusion.[41]
[41] See Submissions of the Minister dated 19 September 2023 at [14].
I agree with this submission. In my view, the dates of the reports and the fact that the relevant examination is expressed as having expired, does not preclude them from being part of the material on which a Commonwealth Medical Officer can base an opinion as to the application of PIC 4005 namely whether a hypothetical person with the attributes of the condition suffered by the particular applicant would have the potential to incur significant costs to be borne by the community.
In addition, Mr Johnson points to the fact that third MOC, on its face, correctly alludes to Alejandro's correct date of birth and age and therefore there is no error apparent on the opinion, which is not directly contradicted by any other evidence available. As such, it is submitted that this certificate does indicate that the Commonwealth Medical Officer did complete the jurisdictional task required namely to form an opinion of Alejandro’s current condition and apply its costs implications to a similar hypothetical individual.
Mr Johnson further asserts that the Tribunal’s decision not to adjourn the proceedings had an obvious and intelligible justification in the circumstances prevailing. The case had already been adjourned to allow the applicants greater time and a further MOC obtained. In addition, the evidence indicated that the applicants were able to make a lengthy submission to the Tribunal in advance of the 21 December 2021 hearing.
In this context, Mr Johnson notes that the cost breakdown document was a one-page document. In addition, the costs provided were significant in their quantum and as the Tribunal itself noted significantly greater than the benchmark, which then applied to community expenditure of $51,000.00 over ten years.
In addition, Mr Johnson argues that the applicants’ submission that the costings were infected by error because they alluded to a six-year-old person was misconceived given that PIC 4005(2)(a) required the MOC to consider costings for the period commencing when the application was made, which was when Alejandro was six years of age – a period reflected in the costings provided. I accept this submission also.
In these circumstances and in the absence of any submissions from the applicant regarding what evidence could be mustered by him to demonstrate an alternative regime of costing or manner of calculation that would have had the potential to affect a different outcome in the case, Mr Johnson submits that this ground of review cannot be maintained.
One flavour of the primary applicant’s case was that he, in conjunction with the general level of expenditure provided by the Special Education Unit at Balaklava Primary School, was effectively meeting any additional expenditure relating to Alejandro’s disability. In response to this, Mr Johnson points to the fact the PIC 4005(1)(c)(ii)(B) and regulation 2.25A specifically render it irrelevant in determining whether potential health costs will be actually utilised in connection with the applicant concerned.
Again, I agree with this submission. In Imad Heerey J indicated that in providing the required opinion under PIC 4005 a Commonwealth Medical Officer was not required to inquire into the financial circumstances of a particular applicant or any family members or friends or other sources of financial assistance.[42]
[42] See Imad v Minister for Immigration & Multicultural Affairs [2001] FCA 1011 at [14] – [15].
In Han v Minister for Home Affairs[43] Bromwich J provided the following analysis as to how an MOC was to approach the jurisdictional task incumbent in assessing health care. It is not to be done by reference to the individual concerned but purely approached in hypothetical terms.
Ms Han’s argument exposes the pitfalls in seeking to require, as a matter going to jurisdiction, the MOC to apply the information in Professor Strasser’s reports as to her actual position, and in particular her actual costs at present and projected into the future, to the required hypothetical assessment. The question of “significant cost” that is required to be assessed is not those in fact being incurred or likely to be incurred by Ms Han, even if that information might in some way assist in the hypothetical assessment, with it being entirely a matter for the MOC as to how such information is brought to bear for that purpose. To require the MOC to have regard to that actual information in some particular way not only encroaches on the assessment task in the nature of impermissible merits review, but is, in substance, to make it a predictive exercise in relation to Ms Han’s specific circumstances, of a kind that has clearly been eschewed by Parliament in favour of the hypothetical.
[43] Han v Minister for Home Affairs [2019] FCA 331 at [63].
In respect of the submission that the comments of the Tribunal that it had no discretion in respect of how it approached the MOC represented a form of ostensible bias which vitiated its determination on the basis that the issue before had been pre-judged, Mr Johnson relies on the statement of Gleeson CJ in Minister for Immigration & Multicultural Affairs v Jia[44] as follows:
The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alternation, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.
[44] Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 at [72].
I agree with Mr Johnson’s submission that the comments made by the Tribunal, in the current matter, were an obvious reference to the provisions of regulation 2.25A(3) in the context of the stipulation provided by Robinson that it was obliged to accept the medical opinion of a Commonwealth Medical Officer if it had correctly identified the condition suffered by the applicant concerned and applied the statutory criteria to a hypothetical person who suffered from the that form of level of condition.
In any event, the Tribunal characterised its formulation of the material before it as adverse information and invited the applicant to comment upon it, which the primary applicant duly did, asserting through his representative that he was capable of meeting his son’s additional costs, which was not, of in itself, a matter which could be taken into account given the structure of PIC 4005.
CONCLUSIONS
It is an inherent requirement of the exercise of any power, conferred on a decision maker, such as the AAT, that such power be exercised reasonably and, if it is not so exercised, it amounts to a failure of jurisdiction. To be exercised reasonably, it must be possible to glean from the relevant decision record an evident and intelligible justification for the pertinent decision in question.[45]
[45] See Minister for Immigration & Citizenship v Li (2013) 297 ALR 225 at [75] – [76] per Hayne, Kiefel & Bell JJ.
In Li, Gageler J (as he then was) expressed the principle as follows:
Implication of reasonableness as a condition of the exercise of a discretionary power conferred by statute is no different from implication of reasonableness as a condition of an opinion or state of satisfaction required by statute as a prerequisite to an exercise of a statutory power or performance of a statutory duty. Each is a manifestation of the general and deeply rooted common law principle of construction that such decision-making authority as is conferred by statute must be exercised according to law and to reason within limits set by the subject-matter, scope and purposes of the statute.” [46] (Citations removed)
[46] See Minister for Immigration & Citizenship v Li (2013) 297 ALR 225 at [90] per Gageler J.
Again in Li, Gageler J considered that the authority conferred on a decision-maker by statute was subject to the deeply rooted common law principle that such authority be exercised both according to law and reason. In the case, under the heading Judging Unreasonableness, his Honour said as follows:
Review by a court of the reasonableness of a decision made by another repository of power ‘is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process’ but also with ‘whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law’.[47]
[47] See Minister for Immigration & Citizenship v Li (2013) 297 ALR 225 at [105] per Gageler J.
Essentially, an administrative decision maker is required to provide an intelligible and reasonable explanation as to why a particular decision has been reached. In my view, a fair reading of the relevant AAT decision in this case, indicates that it provided an intelligible and reasonable explanation as to why it reached the conclusion that it was bound to accept the opinion expressed in the third MOC as being correct. In addition, in my view, it was legally obliged to accept this opinion and the criticism made of it have not been made out.
There is no controversy between the parties concerned that both the Ministerial Delegate and then the AAT were each only entitled to take the relevant MOC as being correct if the relevant Commonwealth Medical Officer’s opinion was one properly authorised by the relevant regulatory regime and was provided within the limits of what was so authorised.[48]
[48] See Minister for Immigration & Multicultural Affairs v Seligman [1999] FCA 117.
The gravamen of the primary applicant’s submission that the MOC went beyond such bounds. As a consequence it is submitted that the decision of the Tribunal to accept the third MOC uncritically is vitiated by legal unreasonableness. Further, in practical terms, the outcome must be considered unjust, particularly given the manner in which the relevant Commonwealth Medical Officer approached the material on which the officer was required to provide an opinion. I do not accept this submission.
The can be no doubt that because of the provisions of subclause 186.244(2) of Schedule 2 to the Regulations, given the primary applicant was applying for a permanent residency visa, on the basis of the nomination of his employer’s given the need for his occupational skills, in Australia, it was necessary for each member of his family to satisfy the health criteria specified in PIC 4005.
In these circumstances, given the provisions of regulation 2.25A(1), the Tribunal was required to seek an opinion from a Commonwealth Medical Officer as to whether Alejandro satisfied the criteria contained in PIC 4005(1)(c). The opinion was required to address a number of criteria, which can be summarised as follows:
·Does Alejandro suffer from a disease or condition;
·What is the severity of that condition;
·What is his age;
·What is the type of visa applied for; and
·What is the visa period.
In my view, the third MOC addressed each of these issues, identifying Alejandro as a ten-year-old person who suffered global development delay in association with autism spectrum disorder of a moderate severity. Significantly, as with the two earlier certificates, the condition is assessed as being permanent in nature. The visa is correctly characterised as relating to a permanent stay in Australia that is potentially an indefinite period.
Thereafter, as indicated by the Federal Court in Robinson, the PIC 4005 requires the MOC to consider whether a hypothetical person, with the same severity of the disease, would be likely to require health care/and or community services, which I am satisfied, includes both specialist educational support and disability services and then assess the cost of provision of those costs to such a hypothetical person, not the actual person concerned.
In my view, the material provided by the primary applicant himself indicates that Alejandro receives some level of disability services, in the form of occupational and speech therapy. In addition, it is not contested that he also receives some specialist educational support at Balaklava Primary School. This material, in the form of reports from Ms Vincent and Ms Weinel was available to the relevant Commonwealth Medical Officer.
As indicated above, although it is clear that Alejandro has made progress and has been able to maintain his enrolment at a mainstream school, the report of Ms Vincent and Ms Weinel, indicate that Alejandro, as at the date of their respective reports, required on-going therapeutic support. These two reports were referenced by the relevant Commonwealth Medical Officer.
It was in this context that the Medical Officer undertook the second phase of evaluation, namely comparison to a hypothetical individual with Alejandro’s condition, at its level of severity. In so doing, it was the MOC’s opinion that such an individual would require health care and/or community services, which would entail a potentially significant cost to the Australian community. There is no controversy between the parties that, at the relevant time, the significant cost threshold was $49,000.00, which was increased to $51,000.00 in September of 2021.
As was said in Seligman:[49]
The issue raised by subparas (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.
[49] Minister for Immigration & Multicultural Affairs v Seligman [1999] FCA 117 at [53].
It is in this context that the submissions regarding the asserted unfairness and unreasonableness of the MOC making reference to the earlier examinations and reports of Dr Wang in 2017 must be considered. In my view, these were important documents. They provided a relevant medical history of Alejandro. They did not lose their relevance because of their date or because of the endorsement of having expired. The Commonwealth Medical Officers were entitled to refer to them in order to make an assessment of the change, if any, in Alejandro’s condition, from this diagnostic base.
In my view, it was legally reasonable for each Commonwealth Medical Officer to assess Dr Wang’s reports and then compare it with the contemporary medical material. In this regard, such a comparison indicates that Alejandro still suffers from a moderate level of global development delay and his condition remains permanent.
In my view, given what Ms Vincent and Ms Weinel have indicated about Alejandro, it was logically open for each of the MOC’s, to conclude that there had been no significant change in Alejandro’s condition. Significantly, Mr Nellas has not provided any medical evidence to refute the conclusions reached by Ms Vincent or Ms Weinel.
In Blair v Minister for Immigration & Multicultural Affairs[50] Carr J indicated that a Medical Officer is entitled to form his or her own opinion in respect of the medical material provided to him or her even if such opinion conflict with other medical material provided. Such a conflict alone cannot amount to a jurisdictional error.
[50] Blair v Minister for Immigration & Multicultural Affairs [2001] FCA 1014 at [33].
Afterall this is the fundamental nature of an opinion – necessarily reasonable medical minds may differ about the diagnosis and prognosis of any individuals. However, in the present matter, there was no such disagreement. Rather the diagnosis provided for Alejandro from 2017 onwards has remained consistent.
In my view, the situation presented to the AAT by the third MOC was analogous to the one described by the Full Court in Dang v Administrative Appeals Tribunal (‘Dang’) as follows:[51]
The difficulty with the submission is that there was no real indication in the material that the condition of Ms Dang's son was changing (as was the case in Applicant Y). On the contrary, the reports consistently describe his condition in the same terms as that used by the Medical Officer, namely as a person with Down syndrome with an associated moderate intellectual disability. Some reports contained reference to progress or gains in development. But the language used to describe the nature of his condition was consistently stated in similar terms. True it is that some of those reports indicate different views as to future requirements for health and community services. However, that is a matter that the Migration Actand the Regulations entrust to the Medical Officer for assessment. Otherwise, there was no basis to suggest that the Medical Officer acted on a view of the relevant medical condition that was out of date. Therefore, ground 2 has not been made out and there was no error by the primary judge in rejecting that ground of review.
[51] Dang v Administrative Appeals Tribunal [2019] FCAFC 220 at [55].
In this case, there is some evidence of gains on Alejandro’s part and it is to the credit of all concerned that he has maintained his enrolment at Balaklava Primary School. However, the underlying picture of his conditions remains consistent from the reports of 2017 to those more recently obtained and submitted to the relevant Medical Officer and which are not rebutted by other expert medical opinion, namely he remains a person with a global development delay, which is permanent in nature.
As was noted in Dang, a medical practitioner may not be equipped by training to undertake a detailed economic assessment of the lifetime of cost that may be expected expressed in dollar terms. In addition, there must always be the possibility that there will be advances in care and methods of treatments, which may well result in the amelioration of the future costs of treatment. In such circumstances, the relevant PIC was said to require:
…a medical judgment as to the prognosis attendant with a condition of the kind experienced by the visa applicant. Then, based on that prognosis and a general understanding of the available heath and community services, a medical opinion is to be formed as to whether the prognosis is likely to mean there will be significant cost in providing services for that person or prejudice to access by others for those services (for example, because they are not readily available). [52]
[52] See Dang v Administrative Appeals Tribunal [2019] FCAFC 220 at [33] – [34].
Such circumstances are likely to render it impossible for an unassailable quantification of the cost of provision of such treatment to be expressed alone in dollar terms, particularly over a lengthy period of time. What is required is the provision of an opinion, in hypothetical terms not a calculation to the last dollar.
In this case, the relevant MOC expressed the costs potentially accruing to the Australian community as being significant in their nature. In my view, the expression significant cost to the Australian community in the areas of healthy and community services, notwithstanding the artificiality and difficulty in attempting to calculate such a sum, in dollar terms, over what, in many cases, is likely to be a protracted period of time, must be given its normal and ordinary meaning having regard to the context and legislative purpose of PIC 4005. The criterion being are the costs likely to be significant in the sense of being noteworthy or having a consequential importance to the Australian community.
The question of the costs of such services is those which would be provided to the hypothetical comparator, not the actual visa applicant. In these circumstances, in my view, there was no degree of legal unreasonableness in the MOC concluding that the hypothetical comparator to Alejandro for the provision of health and community services would be significant. As was indicated in Han (supra) the actual costs and how they are being defrayed or even avoided is not a relevant consideration.
In the current matter, on the basis of the material made available, the relevant Commonwealth Medical Officer was required to determine whether the cost of the provision of health and/or community services to a hypothetical person, with Alejandro’s level of disability would represent a significant cost to the Australian community in theoretical terms.
As indicated above, it is not a relevant consideration that the actual individual concerned may be disinclined to utilise such services personally. In addition, as was noted by the AAT, the relevant benchmark provided by the MOC Advice Pack, as to when such costs became significant was $49,000.00 (increased to $51,000.00 in September of 2021).
In the circumstances prevailing in the current matter, it does not seem to me to be legally unreasonable, given the range of medical material available to the third Commonwealth Medical Officer, that he would conclude that the theoretical cost of supplying health and/or community services to a hypothetical person, with Alejandro’s level of disability, which was assessed as being both permanent and moderate, would be significant. In my view, the decision was intelligible and clearly open.
This was not a case where there was conflicting medical material or the primary applicant asserted the Alejandro did not have special needs. To the contrary, the evidence indicates that Mr Nellas did not dispute the nature of Alejandro’s special needs and the contents of the recent occupational and speech therapists also indicated that the child continued to require on-going support.
Accordingly, in my view, the errors identified by Judge Smith, in Haque, were not present in the current matter. Following the receipt of the third MOC dated 23 November 2021, which was consistent with the two earlier opinions, the primary applicant did not put any further medical material to the Tribunal, which was contrary to the opinion in question.
The primary applicant is critical that the MOC acknowledged not having read the letter from Alejandro’s treating paediatrician, Dr Agrawal, which was dated 13 July 2020. As previously indicated, this letter was provided to the earlier Commonwealth Medical Officers and was available to the Tribunal itself.
It is a letter of support for the family, particularly in respect of it being able to access more medical and health services for Alejandro. In these circumstances, it is difficult, if not impossible, to see how the possibility of the third Commonwealth Medical Officer having read the letter would have had any impact on the opinion provided.
Given the rider on Dr Wang’s 2017 report and the comments in the second MOC regarding the desirability of more information being obtained when Alejandro commenced primary school, it is submitted that in order to discharge its jurisdiction in a legally fair manner, the Tribunal was under a duty to make further inquiries on its own motion.
It has been indicated by the High Court that, in certain confined circumstances, the failure by a decision maker not to ask an obvious question may result in some species of procedural unfairness resulting in jurisdictional error. In Minister for Immigration & Citizenship v SZIAI[53] the majority of the High Court (French CJ, Gummow, Hayne, Kiefel and Bell JJ) said as follows:
It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry result in a decision being affected in some other way that manifests itself as jurisdictional error.
[53] Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429 at 436 [25].
In the current matter, given the contents of the allied health reports, which were available both the third MOC and the Tribunal, when read in conjunction with the report from Balaklava Primary School, I cannot ascertain what is the obvious inquiry which the Tribunal could have made in the particular case. In my view, it remains the case, that although the proceedings before the AAT are inquisitorial in nature, it is not the function of the Tribunal to make out the case for any applicant concerned.[54]
[54] NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at [58].
It is well accepted that the failure to grant an adjournment of proceedings may amount to procedural unfairness of such a degree as to amount to an error to exercise jurisdiction. In general terms, such a failure can be seen to result in some species of practical injustice in the sense envisaged by Gleeson CJ in Lam.
However, whether this is so must depend on the nature of the power being exercised and the circumstances prevailing. In the same case, McHugh & Gummow JJ observed that:
… the particular requirements of compliance with the rules of natural justice will depend upon the circumstances. Different procedures may be required, even of the same repository of power, from one situation to the next …[55]
[55] Re Minister for Immigration & Multicultural Affairs: Ex-parte Lam (2003) 195 ALR 502 at [48].
Minister for Immigration & Border Protection v Singh (‘Singh’)[56] was a case concerned with the failure to grant an adjournment to a visa applicant who wished to undertake a further English language proficiency test after having failed an earlier test. In its decision the Full Court made reference to the fact that any proportionality analysis undertaken between what was at stake for the applicant concerned and the nature of the power required to be exercised by the Tribunal would likely result in a conclusion that the failure to grant the adjournment was disproportionate. It was ultimately determined that the failure to grant a short adjournment lacked an objective and intelligible justification in the circumstances and was a legally unreasonable exercise of power.
[56] Minister for Immigration & Border Protection v Singh (2003) 231 FCR 437.
In Singh the Full Court identified two distinct but related species of unreasonableness – one based on errors arising in the decision-making process itself and the other based on what was the actual outcome of the decision-making process. In the first, the court, in its supervisory role on judicial review, is able to identify a jurisdictional error in how the decision maker has approached the statutory task conferred upon it. In the second, being outcome focussed, the reviewing court is satisfied that the exercise of power, by the original decision maker is arbitrary, capricious or outside the range of possible, acceptable outcomes which are defensible in respect of the facts and law.
In Minister for Immigration & Border Protection v Stretton[57] Allsop CJ indicated the difficulty arising for courts, particularly those exercising appellate or supervisory jurisdictions, of attempting to define, in a prescriptive sense, what was meant by legal unreasonableness. In his Honour’s phraseology it is a concept not amenable to minute and rigidly-defined categorisation or a precise textual formulary.[58]
[57] Minister for Immigration & Border Protection v Stretton (2016) 237 FCR 1.
[58] Minister for Immigration & Border Protection v Stretton (2016) 237 FCR 1 at [10].
This was particularly so in respect of the application of the concept to the outcome of the decision in question, particularly given that decision-makers necessarily are endowed with a certain level of freedom in which to make their decision and within such freedom, decision-makers may make different decisions, which cannot be criticised on the basis of being different.
Accordingly, the task of reviewing for jurisdictional error is not one of definition but of characterisation. Chief Justice Allsop said as follows:
The boundaries of power may be difficult to define. The evaluation of whether a decision was made within those boundaries is conducted by reference to the relevant statute, its terms, scope and purpose, such of the values to which I have referred as are relevant and any other values explicit or implicit in the statute. The weight and relevance of any relevant values will be approached by reference to the statutory source of the power in question. The task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.[59]
[59] Minister for Immigration & Border Protection v Stretton (2016) 237 FCR 1 at [11].
In summary, in determining whether an established failure to consider exercising a discretionary power was legally unreasonable, it is necessary to:
·identify the failure with precision;
·examine the terms, scope and purpose of the statutory power which the decision-maker failed to consider; and
·evaluate the failure to see whether it has the character of being legally unreasonable, perhaps in lacking a rational foundation or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking in common sense.[60]
[60] See BMV16 v Minister for Home Affairs [2018] FCAFC 90 at [80].
In Minister for Immigration and Border Protection v SZVFW[61] the High Court (Nettle & Gordon JJ) said as follows:
…legal unreasonableness is invariably fact dependent and requires a careful evaluation of the evidence. That is, assessment of whether a decision was beyond power because it was legally unreasonable depends on the application of the relevant principles to the particular factual circumstances of the case, rather than by way of an analysis of factual similarities or differences between individual cases. Where reasons are provided, they will be a focal point for that assessment. It would be a rare case to find that the exercise of a discretionary power was unreasonable where the reasons demonstrated a justification for that exercise of power.
[61] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [84].
In the current matter, the request for adjournment was made in writing on 14 December 2021 after the relevant MOC had been provided which indicated that in the opinion of the Commonwealth Medical Officer the cost of the provision of health care and/or community services, required to be assessed under PIC 4005, was likely to be significant. The request was in the following terms:
We are instructed by the Applicant to enquire about the breakdown of the cost of the health care and/or community services which were the basis for the RMOC to arrive at its opinion.
Given that this issue is central to the determination of whether or not the costs of the health care and/or community services is significant, without this matter being available at this time, and this prevents the applicants to prepare an adequate and exhaustive Legal Submission, applicants respectfully request that the hearing on 21 December 2021 be deferred to another date.[62]
[62] See Court Book at page 129.
The breakdown requested was expeditiously provided to the primary applicant at the time the adjournment application was refused. The document was a concise one and axiomatically, given the figure provided, exceeded the applicable threshold by a significant degree.
I agree that the issue of whether these costs are significant or otherwise was an essential jurisdictional issue for the Tribunal. However, the adjournment request does not indicate specifically what the applicants proposed to do with the breakdown in question or how it is hoped to challenge or review it. Rather they sought more time to make an exhaustive legal submission.
In this context, after the Tribunal’s refusal for the grant of an adjournment, it seems to me to be the case that the applicant’s advisor was able to prepare a lengthy written submission, which was forwarded to the Tribunal on 15 December 2021, which in large part addressed the issue of the significant cost threshold policy amount as it was asserted to pertain to the circumstances of Alejandro and his family.
Specifically, the calculation of the amount was not challenged and was conceded to be significant. In this context, the submission focussed on the fact that Mr Nellas and his wife would assume financial responsibility for providing care for Alejandro and the costs would be spread out over a number of years.[63] It was not submitted that the costings had no logical basis or were artificially inflated.
[63] See Court Book at pages 141 - 142.
The Tribunal itself provided further reasons for not adjourning the hearing of 21 December 2021 because it considered that the information sought had been provided and was relatively concise in nature and the proceedings themselves had been on foot for a reasonably lengthy period of time. In my view, there was an intelligible and rational reason for the refusal of the adjournment. In all these circumstances, I do not consider that the refusal of adjournment can amount to a jurisdictional error in this case.
As indicated above, the applicants in the current proceedings have pointed to what is characterised as a clear and obvious error in the funding breakdown as a consequence of it referring to funding for a six-year-old in respect of the NDIS, when at the time of the breakdown Alejandro was aged ten years. However, as Mr Johnson submitted, in my view correctly, PIC 4005(2)(a) is directed towards a date of application criterion. Accordingly, I do not accept that any jurisdictional error is made out on this basis.
The final issue to consider is whether the determination of the AAT is vitiated by jurisdictional error on the basis that the member concerned exercised prejudgment to such a degree that the decision should not be allowed to stand. This prejudgment is said to have been demonstrated by the fact that the member concerned indicated that he had no discretion regarding the remittal of the matter given the content of the relevant MOC.
In this context, it should be noted that the applicants were given an opportunity, at the hearing, to comment on the Tribunal’s assessment of the matter, which was based on the fact that, regardless of the very sympathy felt for Mr Nellas and his wife, who were clearly working very hard to support Alejandro’s needs, it was not able to substitute its own opinion for that of the Commonwealth Medical Officer as to whether the costs to be incurred in providing health and/or community care for a hypothetical individual with Alejandro’s needs would be significant to the Australian community.
In my view, in so doing, the Tribunal was not exercising prejudgment but rather was expressing the criterion applicable to the matter before it. In all these circumstances, I do not consider that the applicants have established any of the grounds of review advanced in the hearing before me on 5 October 2023 and the application for review should be dismissed.
The first respondent seeks that the applicant pay the first respondent’s costs of the proceedings. The amount allowable pursuant to the relevant court scale set by the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) is $8,371.30. I will make an award of costs in this amount.
For all these reasons the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and sixty-four (164) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 1 February 2024
SCHEDULE OF PARTIES
ADG 16 of 2022 Applicants
Fourth Applicant:
DENISE LHYN TEJADA NELLAS
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