Reynolds v Minister for Immigration - [2010] FMCA 6

FEDERAL MAGISTRATES COURT OF AUSTRALIA

REYNOLDS v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 6

MIGRATION – Migration Review Tribunal – remaining relative visa – applicant with cerebral palsy – whether Tribunal properly reconstituted – consideration of Principal Member’s power to delegate reconstitution power to Senior Member – presumption of regularity of appointment of public officers – de-facto officer doctrine.

MIGRATION – Migration Review Tribunal – remaining relative visa – applicant with cerebral palsy – whether medical assessment of Medical Officer of the Commonwealth valid and binding – whether medical practitioner was an appointed Medical Officer of the Commonwealth – whether request for opinion of a Medical Officer of the Commonwealth properly made – whether medical report made in response to proper request – whether criterion in Item 4005 met – whether request for medical opinion met the required definition – consideration relevant to whether Item 4005 met – whether Tribunal required to make enquiries relevant to assessment under Item 4005 – whether proper construction of Item 4005 requires assessment of specific nature and extent of applicant’s actual condition.

MIGRATION – Migration Review Tribunal – remaining relative visa – whether Tribunal gave adequate reasons for decision – whether Tribunal’s reasons adequate basis for conclusions reached – whether Tribunal’s reasons fail to discuss fundamental issues – whether Tribunal failed to set out findings on material questions of fact, or evidence or material in support.

MIGRATION – Migration Review Tribunal – remaining relative visa – whether applicant given particulars of information which would be the reason or part of the reason for affirming decision under review.

Federal Magistrates Court Rules 2001 (Cth), r.21.02
Migration Act 1958 (Cth), ss.29, 31, 65, 338, 347, 349, 353, 354, 355, 359A, 368, 379A, 381, 394, 395, 404, 405, 424A, 430, 457
Migration Regulations 1994 (Cth), regs.1.03, 1.16AA, 2.25A, Schedule 2, Item 855.225, Schedule 4, Item 4005

Adelaide Steamship Co Ltd & Anor v Spalrins & Ors (1998) 81 FCR 360
Azzi & Anor v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 120 FCR; [2002] FCA 24
Bachir & Anor v Minister for Immigration [2007] FMCA 115
Blair v Minister for Immigration and Multicultural Affairs [2001] FCA 1014
Carlos v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 456; [2001] FCA 1087
Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341; [2006] FCAFC 86
Commonwealth of Australia v Anti-Discrimination Tribunal (Tasmania) (2008) 196 FCR 85; [2008] FCAFC 104
Guiseppe v Registrar of Aboriginal Corporations (2007) 160 FCR 465; [2007] FCAFC 91
Imad v Minister for Immigration and Multicultural Affairs [2001] FCA 1011
JP1 v Minister for Immigration and Citizenship (2008) 220 FLR 37; [2008] FMCA 970
Li v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 179
Luu v Minister for Immigration and Multicultural Affairs (2002) 127 FCR 24
Luu v Renevier (1989) 91 ALR 39
M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1
Minister for Immigration and Multicultural Affairs v Seligman (1999) 85 FCR 115
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; [2004] HCA 32
MZXFQ v Minister for Immigration and Citizenship [2007] FCA 826
NAYU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 528
Perkins v County Court of Victoria (2000) 2 VR 246
Pettit v Dunkley [1971] 1 NSWLR 376
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Ramlu v Minister for Immigration and Citizenship (2005) 195 FLR 203; [2005] FMCA 1735
Re Minister for Immigration and Multicultural Affairs; ex parte Cassim [2000] HCA 50; (2000) 175 ALR 209
Robinson v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 148 FCR 182; [2005] FCA 1626
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294; [2005] HCA 24
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
SRFB v Minister for Immigration and Indigenous Affairs [2004] FCAFC 252
Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
VAT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 255
Waterways Authority v Fitzgibbon (2005) 221 ALR 402
X v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 429

Applicant:

CHRISTOPHER JOHN REYNOLDS

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

PEG 131 of 2008

Judgment of:

Lucev FM

Hearing date:

8 December 2008

Date of Last Submission:

8 December 2008

Delivered at:

Perth

Delivered on:

15 January 2010

REPRESENTATION

Counsel for the Applicant:

Mr C Gunst QC and Ms K Southey

Solicitors for the Applicant:

Park Legal Solutions

Counsel for the Respondents:

Mr R L Hooker

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

That the application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 131 of 2008

CHRISTOPHER JOHN REYNOLDS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application seeking review under s.476 of the Migration Act 1958 (Cth)[1] of a decision[2] of the Migration Review Tribunal[3] affirming a decision of a delegate[4] of the first respondent[5] to refuse to grant the applicant, Mr Reynolds, an Other Family (Class BU), subclasss 835 (Remaining Relative) visa.[6]
[1] “Migration Act”.
[2] “Tribunal Decision”.
[3] “Tribunal”.
[4] “Delegate’s Decision”.
[5] “Minister”.
[6] “Remaining Relative Visa”.
Mr Reynolds relies on the grounds in an amended application[7] filed on 30 September 2008.
[7] “Amended Application”.

Background

Mr Reynolds, a citizen of the United Kingdom, lodged an application for a Remaining Relative visa on 10 February 2005,[8] on the grounds that he is the last remaining overseas relative of his immediate family in Australia. Mr Reynolds has cerebral palsy.
[8] Court Book (“CB”) 1-73.
The Delegate’s Decision on 3 August 2006, was to refuse to grant Mr Reynolds a Remaining Relative Visa.[9] The Delegate’s Decision noted that:
On 4 May 2005 a Medical Officer of the Commonwealth determined that the Applicant does not meet Clause 4005(c)(ii)(A) of Schedule 4 Migration Regulations 1994 (Cth). As the Minister’s delegate under s.65 Migration Act 1958 (Cth), I am bound to accept the Medical Officer of the Commonwealth’s opinion as correct (see Reg 2.25A(3) of the Regulations).[10]
[9] CB 245-252.
[10] CB 247.
On 23 August 2006 Mr Reynolds applied to the Tribunal for review of the Delegate’s Decision.[11]
[11] CB 255-261.
Mr Reynolds appeared before the Tribunal at a video hearing on 7 September 2007.[12] Following the Tribunal hearing, the Tribunal summarised the opinions that had been provided to that time by Medical Officers of the Commonwealth and resolved to request a new opinion of a further Medical Officer of the Commonweath,[13] as detailed in a letter sent by an officer of the Tribunal to Mr Reynolds’ agent on 24 September 2007.[14] That letter contained a draft Request to Provide an Opinion of a Medical Officer of the Commonwealth and invited submissions from Mr Reynolds’ agent as to whether any additional documentation ought be sent to the MOC.
[12] “Tribunal Hearing”.
[13] “MOC”.
[14] CB 308-312.
Mr Reynolds’ agent, by letter of 24 September 2007, replied that there was nothing more he wished to add to the Tribunal’s submission to the MOC.[15] On 25 October 2007 a letter was sent on behalf of the Tribunal addressed to “Review Medical Officer of the Commonwealth” at the “Health Assessment Service” at a GPO box address in Sydney, in substantially the same terms as the earlier draft of 24 September 2007.[16]
[15] CB 313.
[16] CB 315-316; “MOC Request”.
Following the member of the Tribunal who had previously sat on the hearing of Mr Reynolds’ application for a review of the Delegate’s Decision apparently becoming unavailable, the Tribunal was reconstituted to comprise member George Haddad, purportedly pursuant to a direction made by a Senior Member of the Tribunal Rea Hearn MacKinnon.[17]
[17] “Ms MacKinnon”.
On 1 May 2008, an officer of the Tribunal wrote a letter addressed to “Review Medical Officer of the Commonwealth” at the “Health Assessment Service” at a GPO box address is Sydney, referring to earlier correspondence concerning a request to provide a review medical opinion.[18] A MOC, Dr Clea Anagnostopolou, had earlier provided what she described as a “Deferred Opinion” dated 5 November 2007.[19] In response to that Deferred Opinion, the Tribunal officer, with her letter of 1 May 2008, provided to the MOC a report of an occupational therapist.
[18] CB 361-362.
[19] CB 331.
On 13 May 2008, the MOC, expressed a conclusion that Mr Reynolds did not meet Item 4005.[20]
[20] CB 363-364; “MOC Opinion”. The document refers to the Tribunal’s letter “of 5^th May 2008” but, viewed in context, can only sensibly be taken to be responding to the Tribunal’s letter of 1 May 2008.
Dr Anagnostopolou had purportedly been appointed as a MOC pursuant to an instrument of appointment under Regulation 1.16AA of the Migration Regulations, 1994 (Cth)[21] on 12 November 1999.[22]
[21] “Migration Regulations”.
[22] Affidavit of Mr Estrin, affirmed 2 December 2008, Annexure DME 1 (“Mr Estrin’s Affidavit”).
By letter dated 23 May 2008, the Tribunal invited Mr Reynolds to comment in writing on the MOC’s opinion of 13 May 2008.[23] Mr Reynolds, through his representative, responded to that invitation by letters of 13 June 2008[24] and 19 June 2008.[25] By another letter of 19 June 2008[26] the Tribunal invited Mr Reynolds to appear before it to give oral evidence and present arguments. Mr Reynolds duly appeared at a further hearing of the Tribunal (as reconstituted) on 4 July 2008.[27]
[23] CB 365-366.
[24] CB 367.
[25] CB 374-375.
[26] CB 372-373.
[27] “Further Tribunal Hearing”.
On 4 July 2008, the Tribunal handed down the Tribunal Decision affirming the Delegate’s Decision to refuse to grant Mr Reynolds a Remaining Relative Visa.

Tribunal Decision

The Tribunal Decision:
a)sets out the procedural background;[28]
[28] CB 404.
b)sets out the relevant law including reg.1.15, Part 835 of Schedule 2, reg.2.25A and Item 4005 of Schedule 4 to the Migration Regulations;[29]
[29] CB 404-405 and 409-410.
c)having cited Robinson v Minister for Immigration and Multicultural and Indigenous Affairs,[30] defined the issue as follows:
[30] (2005) FCR 182; [2005] FCA 1626 (“Robinson”).
The issue in the present case is that relying on an opinion of a Medical Officer of the Commonwealth … the delegate was bound to accept, she found that the applicant did not meet the health criterion in item 4005 of Schedule 4 of the Regulations.[31]
[31] CB 406.
d)under the heading “Claims and Evidence”:
i)referred to the Tribunal Hearing and indicated that following that hearing the Tribunal had determined that the earlier medical opinions were not valid opinions;[32]
[32] CB 406.
ii)said the Tribunal had subsequently requested that a MOC examine whether Mr Reynolds satisfied the prescribed health criteria for the grant of a Remaining Relative Visa, and in so doing specifically drew the attention of the MOC to the following extract from Robinson:
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 …[33]
and also requested that the MOC list with specificity the evidence taken into account when writing the MOC’s opinion;[34]
iii)the Tribunal acknowledged that shortly after the MOC Request was made “the presiding member was no longer available and the case was reconstituted to the current member”;[35]
iv)said that the Tribunal received the MOC (described in the Tribunal Decision as the “Review Medical Officer of the Commonwealth”) Opinion that Mr Reynolds did not meet the health criteria, and that having examined the MOC Opinion the Tribunal was satisfied that it was a valid opinion which the Tribunal was bound to accept as correct in accordance with reg.2.25A(3) of the Migration Regulations;[36]
v)noted that on 23 May 2008 under s.359A of the Migration Act the Tribunal had invited Mr Reynolds to provide comment on the MOC Opinion;[37]
vi)noted that Mr Reynolds had been invited to appear at the Further Tribunal Hearing on 4 July 2008;[38]
vii)noted that a letter had been received from Mr Reynolds’ representative discussing the MOC Opinion and presenting argument concerning Mr Reynolds’ medical condition, together with evidence and supporting documents that Mr Reynolds would be employed, and concluding that it was unlikely that Mr Reynolds would take up medical resources from Australian citizens or permanent residents, and submitting that he passed the intention of Item 4005(c)(ii)(A);[39]
[33] CB 405-406 citing Robinson FCR at 193-194 per Siopis J; FCA at para.43 per Siopis J.
[34] CB 407.
[35] CB 407.
[36] CB 407.
[37] CB 407.
[38] CB 407.
[39] CB 407-408.
At the Further Tribunal Hearing on 4 July 2008 the Tribunal:
a)indicated that the Tribunal had examined the MOC Opinion of 13 May 2008 and was satisfied that it was a valid opinion;[40]
b)indicated that following the submission on behalf of Mr Reynolds the Tribunal had again examined the MOC Opinion “and received legal advice that the opinion is valid”;[41]
c)indicated to the representative for Mr Reynolds that in accordance with reg.2.25A of the Migration Regulations the Tribunal having sought and received the MOC Opinion “which it determined to be a valid opinion…[and] was bound by it” under reg.2.25A(3) of the Migration Regulations;[42]
d)considered a submission that the MOC Opinion was invalid because it did not consider the actual circumstances of Mr Reynolds and refers to Mr Reynolds’ ability to participate in open employment;[43]
e)indicated that it had considered the arguments, observed the test provided by the Federal Court in Robinson, concluded that the MOC Opinion was valid (and rejected a contention that it was not valid), and having said that it was bound by it in accordance with reg.2.25A(3) of the Migration Regulations, and that as a result of that conclusion and the application of reg.2.25A(3), the Tribunal had no alternative but to find that Mr Reynolds did not meet cl.835.223;[44]
f)under the heading “Findings and Reasons”, set out the provisions of reg.2.25A and Item 4005 of Schedule 4 to the Migration Regulations;[45] and
g)indicated that it had evidence before it that Mr Reynolds had been diagnosed with cerebral palsy and that the MOC Opinion was that he did not meet the health criteria in Item 4005.
[40] CB 408.
[41] CB 408.
[42] CB 408.
[43] CB 408.
[44] CB 408.
[45] CB 409-410.
The Tribunal then found as follows:
39.The RMOC provided an opinion dated 13 May 2008 after receiving further information she requested. This latest opinion concluded that the applicant did not meet the health criteria in PIC 4005. The Tribunal determined that the opinion of the RMOC is a valid opinion having considered the applicant’s representative’s argument; and observing the requirements in item 4005 of Schedule 4 and the Court’s decision in Robinson v MIMIA where the Court was asked to address the question of “a construction of the Regulations to determine the proper test by which a MOC is to assess the matters referred to in Public Interest Criterion 4005(c) of the Regulations”. His Honour Siopis J in addressing this question held [at 43] that:
The proper test
43 …A proper construction of Public Interest Criterion 4005 of the Regulations, requires the MOC to ascertain the form or level of condition suffered by the applicant in question and then to apply the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition. It is not the case that the MOC is to proceed to make the assessment at a higher level of generality by reference to a generic form of the condition.
40.The Tribunal having determined that the RMOC’s opinion is a valid opinion, it is to take this opinion as correct for the purposes of deciding whether the applicant meets the criteria in issue. The applicant therefore does not meet PIC 4005 in accordance with r.2.25A(3). As cl.835.223 requires that the applicant meet, among other things, PIC 4005, he does not meet cl.835.223 at the time of this decision.[46]
[46] CB 410-411.
The Tribunal concluded that it had no alternative but to affirm the Delegate’s Decision.[47]
[47] CB 411.

Grounds of Amended Application

The particularised grounds of the Amended Application are set out below under “Consideration of grounds of the Amended Application”.

Statutory framework

The power to grant visas to enter and to remain in Australia derives from the Migration Act[48] which provides for prescribed classes of visas.[49] The Migration Act provides that the Migration Regulations may prescribe criteria for visas of specified classes.[50] The Migration Act provides that if, after considering a valid application, the Minister (or any delegate, or on review, the Tribunal) is satisfied that the criteria for it have been met the visa must be granted, but if not so satisfied, the visa must be refused.[51]
[48] Migration Act, s.29.
[49] Migration Act, s.31.
[50] Migration Act, s.31(3).
[51] Migration Act, s.65(1).
Clause 855.225 in Schedule 2 of the Migration Regulations provides that each member of the family unit of an applicant for a Remaining Relative Visa must satisfy Item 4005 in Schedule 4 of the Migration Regulations.
Item 4005 relevantly requires that:
4005 The applicant:
…
(c) is not a person who has a disease or condition to which the following subparagraphs apply:
(i)the disease or condition is such that a person who has it would be likely to:
(A)     require health care or community services; or
(B)     meet the medical criteria for the provision of a community service;
during the period of the applicant’s proposed stay in Australia;
(ii) provision of the health care or community services relating to the disease or condition would be likely to:
(A)     result in a significant cost to the Australian community in the areas of health care and community services; or
(B)     prejudice the access of an Australian citizen or permanent resident to health care or community services;
regardless of whether the health care or community services will actually be used in connection with the applicant;…
Relevant to the determination of Item 4005 is reg.2.25A of the Migration Regulations which provides that:
(1)In determining whether an applicant satisfies the criteria for the grant of a visa, the Minister must seek the opinion of a Medical Officer of the Commonwealth on whether a person (whether the applicant or another person) meets the requirements of paragraph 4005(a), 4005(b), 4005(c) …
(2)…
(3)The Minister is to take the opinion of the Medical Officer of the Commonwealth on a matter referred to in subregulation (1) or (2) to be correct for the purposes of deciding whether a person meets a requirement or satisfies a criterion.

Jurisdictional error

A decision of the Tribunal is only liable to be set aside upon review if it involves jurisdictional error.[52]
[52] Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; [2003] HCA 2 at para.76 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
An error by an administrative tribunal, such as the Tribunal, will only constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute.[53]
[53] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 per McHugh, Gummow and Hayne JJ; [2001] HCA 30 at para.82 per McHugh, Gummow and Hayne JJ.

Consideration of grounds of Amended Application

Of the nine grounds under the amended application ground 8 was argued, and is therefore considered, first.

Tribunal not properly constituted – ground 8

Ground 8 is as follows:
Further or in the alternative, the Tribunal made an error of law constituting a jurisdictional error in that it was not properly or lawfully constituted under section 354 or section 355 of the Act, and its decision was made by a person without authority to do so.
Particulars
The member of the Tribunal who purported to make the decision, Mr George Haddad, had not been directed by the Principal Member of the Tribunal or his delegate to constitute the Tribunal under section 354 of the Act, nor had he been directed by the Principal Member of the Tribunal or his delegate to constitute the Tribunal for the purpose of finishing the review under section 355 of the Act.
Sections 354 and 355 of the Migration Act provide as follows:
Section 354
Constitution of Tribunal for exercise of powers
(1) For the purpose of a particular review, the Tribunal shall be constituted, in accordance with a direction under subsection (2), by:
(a) a single member;
(b) 2 members; or
(c) 3 members.
(2) The following members may give a written direction about who is to constitute the Tribunal for the purpose of a particular review:
(a) the Principal Member;
(b) the Deputy Principal Member acting in accordance with guidelines under subsection (3);
(c) a Senior Member acting in accordance with guidelines under subsection (3).
(3) The Principal Member may give written guidelines to the Deputy Principal Member and the Senior Members for the giving of directions about who is to constitute the Tribunal for the purpose of particular reviews.
Section 355
Reconstitution of Tribunal--unavailability of member
(1) This section applies where a member who constitutes the Tribunal, or who is one of the members who constitute the Tribunal, for the purposes of a particular review (in this section called the unavailable member ):
(a) stops being a member; or
(b) for any reason, is not available for the purpose of the review at the place where the review is being conducted.
(2) If the unavailable member constitutes the Tribunal, the Principal Member shall direct another member or members to constitute the Tribunal for the purpose of finishing the review.
(3) If the unavailable member is one of the members who constitute the Tribunal, the Principal Member shall either:
(a) direct that the Tribunal is to be constituted for the purposes of finishing the review by the remaining member or members; or
(b) direct that the Tribunal is to be constituted for that purpose by the remaining member or members together with another member or members.
(4) Where a direction under subsection (2) or (3) is given, the Tribunal as constituted in accordance with the direction shall continue and finish the review and may, for that purpose, have regard to any record of the proceedings of the review made by the Tribunal as previously constituted.
(5) In exercising powers under this section, the Principal Member shall have regard to the objective set out in subsection 353(1).
Mr Reynolds submits that:
a)the Tribunal was not lawfully constituted, and its decision was made by a person without authority to do so;
b)the Tribunal must be “constituted” by a member or members for the purpose of a review,[54] and the constitution must occur by a written direction;[55]
[54] Migration Act, s.354(1).
[55] Migration Act, s.354(2).
c)for the purpose of this review, the Tribunal was constituted by Ms Susan Borg;[56]
[56] CB 297, 307 and 314.
d)the Tribunal may be “reconstituted”, where a member who constitutes the Tribunal stops being a member of the Tribunal or is unavailable to complete the review;[57]
[57] Migration Act, s.355(1) and (2).
e)reconstitution must occur by a direction by the Principal Member;[58]
[58] Migration Act, s.355(2).
f)that unless a reconstitution validly occurred, only Ms Borg was empowered to complete the review;
g)although the Tribunal’s Reasons so assert,[59] there is no evidence that Ms Borg ceased to be a Tribunal member or was unavailable, as is required as a precondition to reconstitution;[60]
[59] CB 407.
[60] Migration Act, s.355(1).
h)the Tribunal’s reasons do not say that any reconstitution direction was given (by the Principal Member, or anyone else) to Mr Haddad;[61]
[61] Migration Act, s.355(2).
i)at all relevant times the Principal Member of the Tribunal was Mr Dennis O’Brien,[62] and the Principal Member is permitted to delegate “to a Senior Member” of the Tribunal certain of his powers, including the reconstitution power;[63]
[62] CB 326.
[63] Migration Act, s.405.
j)by an Instrument of Delegation dated 18 September 2007, Mr O’Brien delegated the reconstitution power, to “the persons appointed to, or acting in, the position of Senior Member of the Migration Review Tribunal”,[64] and therefore a reconstitution direction could be given by the Principal Member, Mr O’Brien, or by a person appointed to, or acting in the position of, Senior Member of the Tribunal, but not by anyone else;
[64] The Instrument of Delegation is annexed to Mr Estrin’s Affidavit at Annexure DME 1.
k)in October 2007 the “Acting MRT Senior Member” was Ms Mary Urquhart,[65] who was on leave from 19 October 2007 until 9 November 2007, and during that period it was said that Ms Rosa Gagliari “will act as the Senior Member of the MRT”;[66]
[65] CB 326.
[66] CB 326.
l)a reconstitution direction could have been made by:
i)Mr Dennis O’Brien (at any time);
ii)Ms Mary Urquhart (at any time after 18 September 2007); or
iii)Ms Rosa Gagliari (from 19 October until 9 November 2007),
but no such reconstitution direction was given by any of those persons;
m)the purported reconstitution of the Tribunal to Mr Haddad is dated 30 October 2007,[67] and was purported to have been made by Ms Rea Hearn-MacKinnon[68] who was the Deputy Principal Member of another tribunal,[69] and was not the Principal Member of the Tribunal, nor the acting Senior Member of the Tribunal, and therefore she was not entitled to give a reconstitution direction to a Tribunal member;
n)the purported reconstitution direction was given by a person without any power to do so, and was of no effect;
o)the Tribunal was therefore not validly reconstituted, and Mr Haddad had no power to make the decision which he purported to make;
p)only Ms Borg had the statutory power to make a decision on Mr Reynolds’ application, and she did not do so.
[67] CB 327-329.
[68] CB 327-329.
[69] The Refugee Review Tribunal, established by s.457 of the Migration Act: see CB 326.
Mr Reynolds also argues that:
a)delegation is a question of fact. It requires the conscious selection of a delegate, and the deliberate devolution of a power to that person. The evidence shows that, at all relevant times, the Senior Member of the Tribunal to whom the Principal Member delegated his reconstitution power was Ms Mary Urquhart.[70] She was on leave from 19 October 2007 until 9 November 2007, and in that period Ms Rosa Gagliari was acting as the Senior Member of the Tribunal;[71]
b)what seems to be suggested by the Minister is that a delegation has occurred without the knowledge or consent of the Principal Member, to a person he did not intend to be his delegate; and
c)the presumption of regularity referred to by the Minister[72] is a powerful argument in favour of Mr Reynolds’ case. The law presumes that Ms Borg was validly constituted as the Tribunal, and in the absence of proof of a valid reconstitution which would require both proof of Ms Borg’s:
i)actual cessation as a Tribunal member or unavailability for some other reason, and
ii)of a valid exercise of the reconstitution power by the Principal Member or a lawful delegate,
then the law presumes that Mr Haddad had no power to make his decision.
[70] CB 326.
[71] CB 326.
[72] Minister’s Outline of Submissions, paras.23.1 and 23.2.
The Minister submits that:
a)the Tribunal was properly and lawfully constituted; and
b)alternatively, even if it were not, the de facto officer doctrine operates to preserve the validity of its decision.
The Minister says that the relevant steps in lawfully constituting the Tribunal were:
a)by an instrument of delegation dated 18 September 2007, the principal member of the Tribunal, Mr Denis O’Brien delegated the power to reconstitute the Tribunal to “the persons appointed to, or acting in, the position of Senior Member of the Migration Review Tribunal”;
b)at all material times Ms MacKinnon was a Senior Member of the Tribunal;
c)Ms MacKinnon’s appointment as a Senior Member of the Tribunal is evidenced by an instrument of appointment (and accompanying explanatory memorandum) executed by the Administrator of the Commonwealth on 20 October 2005 appointing her to be a full-time Senior Member of the Tribunal from 1 November 2005 to 31 December 2008;[73] and
d)by instrument dated 30 October 2007,[74] Ms MacKinnon reconstituted the Tribunal, for material purposes, to comprise Mr Haddad.
[73] The documents referred to in the preceding two sub-paragraphs are annexed to Mr Estrin’s Affidavit at Annexure DME 2.
[74] CB 327-329.
The Minister also says that:
a)the common law of Australia recognises:
i)a presumption that persons acting as public officers, or in public capacities have been regularly and properly appointed. Thus, so far as appointments affecting the public at large are concerned, proof that someone acted in a public capacity is evidence of that person’s due appointment or capacity to act;[75] and
ii)a presumption of continuance as to the ongoing effect of an appointment, which presumption is stronger in the context of public law decision-making than it might be in certain private law contexts;[76]
b)even if there be any deficiency in the reconstitution of the Tribunal, the legitimacy of the statutory tasks performed by each is supported by the de facto officer doctrine, the essence of which is simply that acts of an officer de facto done in the apparently regular execution of the office have equal force and effect as an officer de jure when they concern the rights and duties of the subject.[77]
[75] Commonwealth of Australia v Anti-Discrimination Tribunal (Tasmania) (2008) 169 FCR 85 at 103 per Weinberg J; [2008] FCAFC 104 at paras.75-82 per Weinberg J (“Anti-Discrimination Tribunal”).
[76] Guiseppe v Registrar of Aboriginal Corporations (2007) 160 FCR 465 at 475-477 per Gyles and Edmonds JJ (and the authorities therein cited).
[77] Anti-Discrimination Tribunal FCR at 104 per Weinberg J; FCAFC at para.83 per Weinberg J.
Section 405 of the Migration Act provides for the delegation of the Principal Member’s powers in the following terms:
Section 405
Delegation
The Principal Member may, by writing, signed by him or her, delegate to the Deputy Principal Member or a Senior Member all or any of the Principal Member's powers under this Act other than the power under section 381 to refer decisions to the Administrative Appeals Tribunal.

Consideration of Ground 8

In the circumstances there can be no doubt that Ms MacKinnon was validly appointed as a Senior Member of the Tribunal at the relevant times. Ms MacKinnon therefore was a person who could give a direction under s.354(2) of the Migration Act as to who might constitute the Tribunal for the purpose of a particular review. There is no doubt that Ms MacKinnon gave what purported to be a direction for the reconstitution of the Tribunal by Mr Haddad in relation to Mr Reynolds particular review.[78]
[78] CB 327 and 329.
The first question arising is whether Ms MacKinnon had the power to do so without there being written guidelines from the Principal Member under s.354(3) of the Migration Act for the giving of directions about who was to constitute the Tribunal for the purpose of Mr Reynolds particular review?
The delegation under s.405 of the Migration Act was “to the persons appointed to, or acting in, the position of Senior Member”[79] of the Tribunal. The delegation was not, as Mr Reynolds submitted, to “the person” who was, or who was acting as, “the Senior Member”. The Migration Act does not differentiate or designate, for the purposes of delegation from the Principal Member, a person as the “senior” Senior Member of the Tribunal. Rather s.405 of the Migration Act refers to delegation to “the Deputy Principal Member” and “a Senior Member”, which gives an indication that there is one Deputy Principal Member and may be many Senior Members. Likewise:
a)s.354(2) and (3) of the Migration Act, which refer respectively to “the Deputy Principal Member” and “a Senior Member” and “the Deputy Principal Member” and “the Senior Members”; and
b)the definition of “senior office” in s.404 of the Migration Act which includes “the office of Deputy Principal Member” and “an office of Senior Member”.
[79] Instrument of Delegation (underlined emphasis added).
Ms MacKinnon was, as indicated above, a Senior Member of the Tribunal, and under the Instrument of Delegation, a person to whom the Principal Member’s power to reconstitute the Tribunal was delegated. On its face, the delegation is not qualified or fettered and appears to be a delegation of all of the Principal Member’s power to reconstitute the Tribunal for the purposes of a particular review.
The further question then arises as to whether, when acting under the delegated power, Ms MacKinnon, as a Senior Member, can only do so in accordance with written guidelines given by the Principal Member under s.354(2)(c) and (3) of the Migration Act.
In the Court’s view, when acting under the delegated power from the Principal Member, a Senior Member is not required to act in accordance with written guidelines given by the Principal Member. There are several reasons for this view. First, the delegated power is of the Principal Member’s power to reconstitute, which is an unfettered power, or a power not fettered by the need for any written guidelines. Second, and this is closely associated with the first reason, is that the Principal Member’s power to delegate is restricted in respect of one matter only, that being an inability to delegate the power under s.381 of the Migration Act to refer decisions to the Administrative Appeals Tribunal. Otherwise, the power of delegation is of “all or any of the Principal Member’s powers” under the Migration Act, and, as observed above, there is no apparent fetter on the delegation of the complete power to reconstitute the Tribunal for the purposes of a particular review. Third, the power of the Principal Member to give written guidelines is a permissive power, not a mandatory power. Were it necessary for a Senior Member acting under a delegated power to reconstitute the Tribunal to act in accordance with written guidelines then s.354(3) of the Migration Act would be differently drafted, so as to provide that the Principal Member “must” give written guidelines to a Senior Member where the power to reconstitute has been delegated. In the Court’s view, the use of “may” in s.354(3) of the Migration Act in relation to the giving of written guidelines by the Principal Member to a Senior Member in relation to the reconstitution of the Tribunal, is consistent with an intention to allow a Senior Member to exercise the Principal Member’s delegated power of reconstitution unfettered by any written guidelines.
In the circumstances, the Court is of the view that:
a)Ms MacKinnon was validly appointed as a Senior Member of the Tribunal;
b)Ms MacKinnon had the power to reconstitute the Tribunal, the power having been properly delegated by the Principal Member; and
c)it was not a condition of the exercise of the delegated power to reconstitute the Tribunal that Ms MacKinnon, as a Senior Member of the Tribunal, act in accordance with written guidelines from the Principal Member.
Mr Reynolds also submits that the reconstitution of the Tribunal was invalid because there is no evidence that Ms Borg stopped being a member or was not available “for any reason”.[80]
[80] Migration Act, s.355(1).
Mr Reynolds’ submission belies the presumption of regularity of the appointment of all public officers in a number of ways. First, the presumption itself is, relevantly, that public and official acts and duties have been regularly and properly performed, and persons acting as public officers regularly and properly appointed.[81] Second, the presumption is generally regarded as persuasive.[82] Third, it is for Mr Reynolds to prove that the Tribunal has not been properly reconstituted (or, put differently, to rebut the presumption), and in this case:
a)there is an absence of evidence to support rebuttal of the presumption;[83] and
b)a mere absence of evidence supporting the valid reconstitution is insufficient to rebut the presumption[84] (if that were the case, which it is not for reasons set out above, and for further reasons detailed below).
Finally, Mr Reynolds’ suggestion that the presumption of regularity applies to Ms Borg’s appointment as a Tribunal member, and that in the absence of evidence of her having stopped being a member or not being available to be a member, it applies to invalidate the reconstitution of the Tribunal, inverts the application of the presumption that all necessary prerequisites to the validity of the appointment under challenge have been complied with.[85]
[81] Anti-Discrimination Tribunal FCR at 103 per Weinberg J; FCAFC at para.76 per Weinberg J.
[82] Anti-Discrimination Tribunal FCR at 103 per Weinberg J; FCAFC at para.77 per Weinberg J.
[83] Anti-Discrimination Tribunal FCR at 103 per Weinberg J and 148-149 per Kenny J; FCAFC at paras.78 and 82 per Weinberg J and paras.259-260 per Kenny J.
[84] Anti-Discrimination Tribunal FCR at 103 per Weinberg J; FCAFC at paras.78 and 82 per Weinberg J.
[85] Anti-Discrimination Tribunal FCR at 148-149 per Kenny J; FCAFC at paras.259-260 per Kenny J.
In any event, the submission fails as a matter of fact. There was on the Tribunal file, which was before the Tribunal,[86] a “Task Details” note prepared by Ms Borg on 22 October 2007, requesting a Tribunal officer to undertake certain tasks in relation to certain documents, and to let Ms Borg know of any difficulties, “as I am no longer here after this Friday [sic]”.[87] Assuming, logically, that “here” is a reference to the Tribunal it provides a reason for Ms Borg not being available to conduct Mr Reynolds’ review some months later. Furthermore, the Tribunal Decision expressly notes that the Tribunal was reconstituted because “the presiding member was no longer available”.[88]
[86] CB 406, and CB Index at vi.
[87] CB 314, and CB Index at vi and ix.
[88] CB 407.

The submission that the reconstitution of the Tribunal was invalid because there is no evidence that Ms Borg stopped being a member or was not available “for any reason” therefore fails:
a)on the facts; and
b)because the presumption of regularity has not been rebutted.
In the circumstances it is unnecessary to give detailed consideration to the de facto officer doctrine, which was also relied upon by the Minister to uphold the reconstitution of the Tribunal and Mr Haddad’s appointment as the member. It suffices to observe that as the office of a member of the Tribunal is legally recognised,[89] and in performing the review, Mr Haddad carried out the functions of the office of a member of the Tribunal,[90] the validity of his appointment can also be upheld by reason of the de-facto officer doctrine.[91]
[89] Migration Act, ss.394 and 395.
[90] Migration Act, ss.349, 353 and 354.
[91] Anti-Discrimination Tribunal FCR at 104-105 per Weinberg J; FCAFC at paras.83-88 per Weinberg J.
The Court therefore concludes that the Tribunal was properly reconstituted to conduct Mr Reynolds’ review, and Mr Haddad’s appointment as a member of the Tribunal for that purpose was valid.
Ground 8 of the application therefore fails.

Jurisdictional errors – grounds 1-7

Ground 1

Ground 1 is as follows:
The Tribunal made errors of law constituting jurisdictional errors on the face of the Tribunal’s decision by incorrectly considering that the assessment of the Review Medical Officer of the Commonwealth (“RMOC”) was binding despite the fact that the assessment misinterpreted or alternatively misapplied the relevant test provided by Public Interest Criterion 4005 (“the test”) of the Migration Regulations 1994 (“the Regulations”).
Particulars
The test requires the RMOC to look at the disease or condition actually suffered by a person when assessing whether they meet the test. The RMOC incorrectly applied a general notion of Cerebral Palsy when assessing the Applicant against the Test. The RMOC failed to consider whether the Applicant’s particular condition being a mild form of Cerebral Palsy, met the test as she was required to do by the Act.
Mr Reynolds submits that:
a)the Tribunal incorrectly considered that the MOC Opinion was binding, although the assessment misinterpreted or misapplied the relevant test provided by Item 4005 of the Migration Regulations;
b)because reg.2.25A of the Migration Regulations provides that the Minister (and, on review, the Tribunal) is to take (a valid) MOC Opinion to be correct for the purposes of its decision, the Tribunal’s incorrect consideration was of crucial importance;
c)there are several operative parts to Item 4005(c), including that there must be a likelihood (which connotes a probability greater than 50%, more than a mere possibility) of significant cost to the community, or of prejudice to the access of a citizen or permanent resident to health care;
d)Item 4005(c) raises complicated issues, and there is no discussion of or evidence concerning them set out in the MOC Opinion. One can readily accept that the MOC may have expertise to diagnose and opine concerning a condition such as cerebral palsy, but it is far from obvious that the MOC would have any expertise concerning the cost to the community of health care or the likelihood that there would be a significant cost. The evidentiary basis, if any, for the conclusions are not set out, nor is there any discussion of the question;
e)the MOC Opinion is also defective because there is no evidence that it was prepared by a MOC as defined in reg.1.03 of the Migration Regulations, namely a medical practitioner (that is, an individual) appointed as a MOC for the purpose of the Migration Regulations;[92]
[92] The power to make such appointments is set out in reg.1.16AA of the Migration Regulations.
f)reg.2.25A of the Migration Regulations provides that:
In determining whether an applicant satisfies the criteria for the grant of a visa, the Minister must seek the opinion of a Medical Officer of the Commonwealth on whether a person (whether the applicant or another person) meets the requirements of paragraph 4005(a), 4005(b), 4005(c), 4006A(1)(a), 4006A(1)(b), 4006A(1)(c), 4007(1)(b) or 4007(1)(c) of Schedule 4;
g)it is if, and only if, the MOC Opinion meets the definition in reg.2.25A(1) of the Migration Regulations that “…the opinion of the Medical Officer of the Commonwealth …[is taken] to be correct for the purposes of deciding whether a person meets a requirement or satisfies a criterion”;[93]
[93] Migration Regulations, reg.2.25A(3).
h)no request contemplated by the Migration Regulations, for the opinion of a MOC (that is, of an individual), was made. The request is dated 1 May 2008,[94] and is addressed to “Review Medical Officer of the Commonwealth, Health Assessment Service” at GPO Box in Sydney. There is no position known as Review Medical Officer of the Commonwealth defined in the Migration Act or the Migration Regulations, and a request for an opinion cannot validly be made to a health service, but only to an individual MOC;
[94] CB 361-362.
i)the MOC Request did not meet the required definition. It was not a request for an opinion “on whether the applicant met the requirements of paragraph 4005(a), 4005(b), 4005(c) … [etc]”, as the Migration Regulations require, but for something else, namely “whether the applicant satisfies the prescribed health requirement” (whatever that might be);
j)the MOC Opinion which the Tribunal relied upon[95] was not, in any event, made in response to this request, but in response to some other document, a “letter of 5^th May”;[96]
[95] CB 363-364.
[96] CB 363.
k)the MOC Opinion is also defective in that it purports to opine as its conclusion that “therefore the applicant does not meet Public Interest Criterion(s) 4005” (sic). The MOC Opinion does not, as it is required to do, specify which of the several criteria in Item 4005 (which has three parts, 4005(a), (b) and (c)) are not met. This was not an opinion on whether Mr Reynolds meets the requirements of Item 4005(c), which the Tribunal has taken it to be. It does not say Mr Reynolds does not, and one cannot infer as much, unless one also infers that Mr Reynolds has tuberculosis, which (it is common ground) he does not.[97] Because the MOC Opinion does not meet the description set out in reg.2.25A(1) of the Migration Regulations, it does not have the conclusive force which reg.2.25A(3) of the Migration Regulations would otherwise provide;
[97] CB 199.
l)whether a person satisfies Item 4005(c) is a question of fact for the Tribunal to determine. The Tribunal is bound to accept the MOC Opinion as correct, but only if it was properly given under the Migration Regulations. As the Full Court of the Federal Court said in Minister for Immigration and Multicultural Affairs v Seligman:[98]
[98] (1999) 85 FCR 115 (“Seligman”).
“… The delegate [or Tribunal] is only entitled and obliged to take [the medical officer’s] opinion as correct if it is an opinion of a kind authorised by the regulations and, it may be added, validly so authorised. If it is not or if it travels beyond the limits of what is authorised, then to act upon it as though it is binding is to act upon a wrong view of the law and to err in the interpretation of the law or its application, a ground of review for which s.476 of the Act provides”[99]
m)to determine this question required the Tribunal to ask: was the appropriate test to be applied by the MOC in assessing whether the statutory criteria in Item 4005(c) were specified, applied to the applicant in question.[100] The question is not whether the MOC holds the relevant opinion, but whether the Tribunal does so, taking the MOC’s Opinion as correct if required to do so;
n)the test is personal and subjective, not hypothetical or objective. As the Full Court said in Seligman “the question whether a person satisfies the criterion set out in Item 4005 is to be addressed by reference to practical considerations and real world probabilities.”[101]
o)the MOC must assess the specific nature and extent of an applicant’s actual condition: The Federal Court held that:
“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.
Parliament intended the assessment made under Public Interest Criterion 4005(c) to be made on a case by case basis by reference to the form or level of the disease or condition actually suffered by the applicant.”[102]
p)the MOC (or Tribunal) is not required “to inquire into the financial circumstances of a particular applicant or family members or friends or other sources of financial assistance”,[103] but would not be prohibited from so doing, and should consider all relevant material that is put forward. A determination that “significant cost” is “likely” cannot be made if the “real world” facts are not taken into account, which they were not.
[99] Seligman FCR at 130 per French, North and Merkel JJ; FCA at para.66 per French, North and Merkel JJ.
[100] Seligman FCR at 127 per French, North and Merkel JJ; FCA at para.48 per French, North and Merkel JJ; Robinson FCR at 192 and 193-194 per Siopis J; FCA at paras.34 and 43 per Siopis J.
[101] Seligman FCR at 129 per French, North and Merkel JJ; FCA at para.63 per French, North and Merkel JJ.
[102] Robinson FCR at 192, 193-194 and 196 per Siopis J; FCA at paras.36, 43 and 56 per Siopis J.
[103] Imad v Minister for Immigration and Multicultural Affairs [2001] FCA 1011 at para.14 per Heerey J (“Imad”).
Mr Reynolds further submits that:
a)strict compliance with reg.2.25A of the Migration Regulations is required, because of its strict nature;
b)it is if, and only if, the opinion meets the definition in the Migration Regulations that reg.2.25A(3) provides that “…the opinion of the Medical Officer of the Commonwealth [is taken] to be correct…”. As the Full Court of the Federal Court said in Seligman:
“…The delegate [or Tribunal] is only entitled and obliged to take [the medical officer’s] opinion as correct if it is an opinion of a kind authorised by the Migration Regulations and, it may be added, validly so authorised. If it is not or if it travels beyond the limits of what is authorised, then to act upon it as though it is binding is to act upon a wrong view of the law and to err in the interpretation of the law or its application, a ground of review for which s.476 of the Act provides.”[104]
c)the respondent suggests that these defects in the opinion are “trivial and highly technical”,[105] but they are of the first importance, given the conclusive nature of a valid opinion; and
d)the case relied upon by the minister, Blair v Minister for Immigration and Multicultural Affairs,[106] turned on its own facts. The various attacks made in Blair on the medical opinion, which were rejected as a matter of fact, were different from the attacks made here.
[104] Seligman FCR at 130 per French, North and Merkel JJ; FCA at para.66 per French, North and Merkel JJ (emphasis added).
[105] Respondents’ Submissions, para.22.
[106] [2001] FCA 1014 (“Blair”).
The Minister submits that:
a)the MOC identified the relevant condition as “moderate cerebral palsy characterised by spastic quadriparesis and ataxia”. She then discussed his circumstances with specificity. She proceeded to make her findings in relation to a “hypothetical person with the level of impairment as indicated in the Applicant’s condition”, consistently with the principle enunciated in Robinson. Contrary to ground 1, it cannot be said that the MOC applied a “general notion” of cerebral palsy;
b)there is no basis to impugn the appointment of the MOC evidenced by the instrument of appointment of 12 November 1999. It is unnecessary for the Minister to provide evidence of the fact that the MOC is in fact a medical practitioner, or that her appointment remains extant. This is because the common law of Australia recognises a presumption of regularity; and
c)even if there be any deficiency in the appointment of Dr Anagnostopolou as a MOC (which is denied by the Minister), the legitimacy of the statutory tasks performed by the MOC is supported by the de facto officer doctrine.

Consideration of Ground 1

Appointment of MOC

The appointment of a MOC is made under reg.1.16AA of the Migration Regulations, which provides as follows:
Appointment of Medical Officer of the Commonwealth
The Minister may, by writing signed by the Minister, appoint

a medical practitioner to be a Medical Officer of the Commonwealth for the purposes of these Regulations.
The evidence relied upon by the Minister as to the appointment of the MOC, challenged by Mr Reynolds, is a “Minute” dated 12 November 1999 from the Director, Health Policy Section of the then Department of Immigration and Multicultural Affairs addressed to the Director, Legislation Section, Parliamentary and Legal Division entitled:
APPOINTMENT OF MEDICAL OFFICER OF THE COMMONWEALTH
and attaching “a new instrument of Appointment and Schedule pursuant to the provisions of regulation 1.16AA.”[107]
[107] “Appointment Minute”. The Appointment Minute is part of Annexure DME 1 to Mr Estrin’s Affidavit.
Attached to the Appointment Minute is a “Schedule” headed “MEDICAL OFFICERS OF THE COMMONWEALTH”[108] on which appears the name of Clea Anagnostopolou,[109] the MOC who prepared the MOC Opinion in this matter.
[108] “Appointment Schedule”. The Appointment Schedule is part of Annexure DME 1 to Mr Estrin’s Affidavit.
[109] And twenty other names.
There is written evidence of the appointment of the medical officers named in the Appointment Schedule by a delegate of the Minister,[110] although there is no evidence of the delegation itself.
[110] Mr Estrin’s Affidavit, Annexure DME 1.
The only other evidence is that of:
a)the MOC Opinion itself in which Dr Anagnostopolou describes herself as “A medical officer of the Commonwealth for the purposes of providing an opinion on whether prescribed health criteria under the Migration regulations are met”[111]; and
b)an earlier “Deferred Opinion” dated 5 November 2007, in which Dr Anagnostopolou also describes herself as “A medical officer of the Commonwealth for the purposes of providing an opinion on whether prescribed health criteria under the Migration regulations are met”.[112]
[111] CB 364.
[112] CB 331.
There is therefore some evidence of compliance with reg.1.16AA of the Migration Regulations in the appointment of Dr Anagnostopolou as a MOC (albeit that there is no evidence of the Minister’s delegation of the appointment power).
The Court can, however, take notice of the fact that in Blair[113] Dr Anagnostopolou was described as a MOC who had given an opinion on 20 July 1998 – that is at a time prior to the time of the Appointment Minute and the Appointment Schedule.
[113] Blair at para.6 per Carr J.
The Minister therefore relies upon:
a)the presumption of regularity; or
b)the de facto officer doctrine,
to support the appointment of Dr Anagnostopolou as a MOC.
The Court repeats its observations concerning the law as to the presumption of regularity and the de facto officer doctrine set out above.
In circumstances where:
a)there is an indication that Dr Anagnostopolou acted as a MOC as long ago as 1998;
b)it was manifestly the intention evident from the Appointment Minute and Appointment Schedule, that Dr Anagnostopolou be appointed as a MOC in 1999;
c)there is evidence of approval of the appointment by the Minister’s delegate; and
d)Dr Anagnostopolou acted as a MOC in relation to Mr Reynolds assessment, both in relation to the MOC Opinion and the earlier Deferred Opinion,
the Court considers that the presumption of regularity ought to apply with respect to Dr Anagnostopolou so as to regularise her appointment as a MOC in relation to Mr Reynolds assessment in this matter, subject to anything that might be said below with respect to Mr Reynolds’ submissions concerning the request for the appointment of a MOC in this matter.

The MOC Request

Mr Reynolds’ submission seems to be that the Minister must seek the opinion of a nominated individual medical practitioner (and in this case, specifically Dr Anagnostopolou) who is a MOC for the MOC Opinion to be validly given.
The submission finds no support in the wording of reg.2.25A(1) of the Migration Regulations. All that is required is that the Minister “seek the opinion” of a MOC. How the opinion sought is requested or obtained is not the subject of any specification under reg.2.25A(1) of the Migration Regulations. There is no requirement on the Minister to specify an individual MOC when seeking the opinion.
The fact that the MOC Request, which ultimately resulted in the delivery of the MOC Opinion, was addressed to “Review Medical Officer of the Commonwealth” at the “Health Assessment Service” is immaterial.[114] The addressee is simply a conduit through which the opinion sought is procured. What matters is the content of the MOC Request. It is headed up in unequivocal terms:
“REQUEST TO PROVIDE A REVIEW MEDICAL OPINION”[115]
[114] CB 361.
[115] CB 361.
The MOC Request refers to the fact that the “review applicant has applied for a review medical opinion.”[116] A copy of the Deferred Opinion of Dr Anagnostopolou is attached to the MOC Request. There is then a request to “advise whether, based on the information provided, the … visa applicant satisfies the prescribed health requirement for the visa applied for.”[117] The details set out thereunder specify that a permanent visa, of class “BU – Other Family (Residence) (Class BU), subclass “835 (Remaining Relative)” is being applied for and that the relevant Migration Regulations are those applicable at the time of the visa application, namely 3 August 2006.[118] There can be no doubt that what was being sought was a medical opinion to determine whether Mr Reynolds “satisfied the criteria for the grant of a visa” as required by reg.2.25A(1) of the Migration Regulations, and specifically the “prescribed health requirement for the visa applied for”, which visa is then specified in the MOC Request. Although the letter addressed to the “Review Medical Officer of the Commonwealth” does not expressly say that an opinion is sought from a MOC, that is what was obtained and provided, and provided in relation to the “prescribed health requirement” in Item 4005(c).[119]
[116] CB 361.
[117] CB 361.
[118] CB 361.
[119] CB 363-364.
In the circumstances set out above Mr Reynolds’ complaints concerning the form and content of the MOC Request must fail.

MOC Opinion

The MOC Opinion is as follows:
“Thank you for your letter of 5^th May 2008 regarding the above named applicant. The medical information provided includes the original medical examination report and associated reports.
Summary
On the 4^th May 2005, the primary Medical Officer of the Commonwealth provided an opinion that Mr REYNOLDS did not meet the prescribed health criteria. This was based on the information available at the time.
Opinion of the Review Medical Officer of the Commonwealth:
I have reviewed all the medical information provided.
APPLICANT DOES NOT MEET HEALTH REQUIREMENT
My opinion is based on available medical and radiological reports and the proposed duration of stay sought in Australia.
I have assessed the applicant against the Regulation set out at Schedule 4 of the Migration Regulations
Regulation and Narrative
4005(c)(ii)(A) – new
the applicant is not a person who has a disease or condition to which the following subparagraphs apply:
(ii) provision of the health care or community services relating to the disease or condition would be likely to:
(A) result in a significant cost to the Australian community in the areas of health care and community services;
regardless of whether the health care or community services will actually be used in connection with the applicant;
In my opinion, this applicant fails to meet the above regulation(s) for the following reasons:
In preparing this opinion, I have had regard to available reports concerning the applicant, including, but not limited to,
- Forms 26 and 160 dated 7/4/05;
- Ms Jodrell (occupational therapist) report dated 13/4/08;
- Shaftsbury Society letter dated 03/11/04 and 20/9/04;
- Prof. Gubbay’s (neurologist) report dated 24/01/06
Condition:
The applicant is an 34 year old man with moderate cerebral palsy characterised by spastic quadriparesis and ataxia. He is mostly wheelchair bound and is considered to have low-normal level of intelligence. He has a moderate degree of dysarthria making social interaction somewhat difficult. He is mostly independent in his activities of daily living. Prior to moving to Australia he resided in an independent living unit within a care facility.
Prognosis:
My Reynolds condition is stable. He has no other medical conditions. It is likely that Mr Reynolds will be eligible for community services as he would be unable to participate in open employment. A hypothetical person with the level of impairment as indicated in the applicant’s current condition would be eligible for supported employment and community services. This would be at a significant cost to the Australian community.
This disease or condition is a disease or condition to which paragraphs 4005(c)(ii)(A) – new in Schedule 4 of the Migration Regulations 1994 apply, regardless of whether or not health care or community services will actually be used in connection with the applicant during the period of the applicant’s proposed stay in Australia. A person with such a disease or condition would be likely to require health care or community services or would be likely to meet the medical criteria for the provisions of a community service and provision of such health care or community services relating to the disease or condition would be likely to result in a significant cost to the Australian community in the areas of health care and community services, or prejudice the access of Australian citizens or permanent residents to, health care and community services.
Therefore the applicant does not meet Public Interest Criterion(s): 4005.
Serial Code(s) and Narrative:
99 Does not meet health requirement.
Dr CLEA ANAGNOSTOPOLOU
A Medical Officer of the Commonwealth for the purposes of providing an opinion on whether prescribed health criteria under the Migration regulations are met.
Health Assessment Service
13^th May 2008”

In Seligman the Full Court of the Federal Court made the following observations with respect to the defining and limiting attributes of the medical officer’s opinion:
“48 The seeking of an opinion by the Minister takes place "in determining whether an applicant satisfies the criteria for the grant of a visa". This recognises the conceptual distinction between ascertaining whether criteria are satisfied and deciding to grant or refuse the visa. It is the first limb of that two phase process upon which the requirement of reg 2.25A operates. The defining and limiting attributes of what is sought from the Medical Officer are:
1. What is provided must be an opinion.
2. The opinion must be that of the Medical Officer of the Commonwealth who provides it.
3. The subject of the opinion must be "whether a person meets the requirements of the applicable paragraph of Schedule 4".
49 The Minister is required by subreg 2.25A(3) to take the opinion to be "correct". That is subject to three qualifications:
1. The opinion must be the opinion of the Medical Officer "on a matter referred to in subreg (1) or (2)". The matter referred to in subreg 2.25A(1) is whether a person meets the requirements of the relevant paragraph of Schedule 4.
2. The Minister is to take the opinion as correct for the purposes of deciding whether a person meets a requirement or satisfies a criterion.
3. The opinion must address satisfaction of the requirements at the time of the Minister's decision.”[120]
[120] Seligman FCR at 127 per French, North and Merkel JJ; FCA at paras.48 and 49 per French, North and Merkel JJ.
In Seligman the Full Court were considering the terms of reg.2.25A(1) of the Migration Regulations as it then stood, which was in the following terms:
[The applicant]:
(a) is free from tuberculosis; and

(b) is free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community; and

(c) is not a person who has a disease or condition that, during the applicant's proposed period of stay in Australia would be likely to:

(i) result in a significant cost to the Australian community in the areas of health care or community services; or

(ii) prejudice the access of an Australian citizen or permanent resident to health care or community services.
Of the matters of medical and other judgment involved in considering the terms of what was then reg.2.25A(1) the Full Court of the Federal Court said as follows:
“53 The issue raised by subpars (c)(i) and (c)(ii) will also involve matters of medical judgment about the nature of the disease or condition which is identified. Whether a disease or condition has characteristics that require ongoing health care or support services for the person suffering from it is a matter of medical judgment. And in a broad sense a medical practitioner can assess whether the provisions of such health care or support services involves a significant cost. Indeed the use of the word "areas" in the collocation "areas of health care or community services" suggests a judgment about the nature of the disease or condition rather than an attempt to relate it to precise health care provisions or particular community services.”[121]
[121] Seligman FCR at 128 per French, North and Merkel JJ; FCA at para.53 per French, North and Merkel JJ.
It is also relevant to note that at the time Seligman was decided Item 4005(c) of the Migration Regulations relating to consideration of whether an applicant’s disease or condition would result in a significant cost to the Australian community in the area of health care or community services provided that that consideration:
“… does not call for a determination of whether a person who has a disease or condition is likely to use health care or community services which are available to Australian citizens and permanent residents.”
In the circumstances, the Full Court of the Federal Court said that “the question whether a person satisfies the criteria set out in Item 4005 is to be addressed by reference to practical considerations and real world probabilities.”[122]
[122] Seligman FCR at 129 per French, North and Merkel JJ; FCA at para.63 per French, North and Merkel JJ.
In relation to taking into account the opinion of a MOC the Full Court of the Federal Court observed as follows:
“…The delegate is only entitled and obliged to take that opinion as correct if it is an opinion of a kind authorised by the regulations and, it may be added, validly so authorised. If it is not or if it travels beyond the limits of what is authorised, then to act upon it as though it is binding is to act upon a wrong view of the law and to err in the interpretation of the law or its application, a ground of review for which s 476 of the Act provides.”[123]
and
“As to the second ground relied upon by his Honour, relating to the absence of evidence to support the Medical Officer's opinion, an opinion which is unlawful for that reason does not bind the delegate. The fact that the delegate may not have made inquiry or may have been unaware of the deficiency makes it no less an error of law to treat the opinion as provided in accordance with the requirements of the regulations and to be taken as correct.”[124]
[123] Seligman FCR at 130 per French, North and Merkel JJ; FCA at para.66 per French, North and Merkel JJ.
[124] Seligman FCR at 130 per French, North and Merkel JJ; FCA at para.68 per French, North and Merkel JJ.
The Full Court of the Federal Court in Seligman therefore determined that there was jurisdiction in the Court “to consider the lawfulness of the medical officer’s opinion as an element of its consideration of the lawfulness of the delegate’s decision.”[125]
[125] Seligman FCR at 130 per French, North and Merkel JJ; FCA at para.69 per French, North and Merkel JJ.
In Seligman reg.2.25B of the Migration Regulations as they then stood was found to be invalid. That regulation at that time prescribed as follows:
“2.25B In determining whether or not, during an applicant's proposed period of stay in Australia, a person's disease or condition would be likely to:
(a) result in a significant cost to the Australian community in the areas of health care or community services; or

(b) prejudice the access of an Australian citizen or permanent resident to health care or community services;

the Medical Officer of the Commonwealth must consider the person's need and eligibility for health care or community services, without regard to whether that person will use the services.”[126]
[126] Seligman FCR at 124 per French, North and Merkel JJ; FCA at para.37 per French, North and Merkel JJ.
The invalidity of reg.2.25B in Seligman meant that consideration of an applicant’s need and eligibility for health or community health care or community services without regard to whether that applicant would use the services was not a matter that ought to have been considered by the MOC in that case. The Full Court of the Federal Court observed that the failure of the delegate in that matter to give independent consideration to the relevant criterion, particularly whether there was an actual likelihood that there would be a significant cost to the Australian community, was “no doubt explained” by reference to reg.2.25B(1) of the Migration Regulations as it then stood. In short, the MOC’s opinion in that matter did not have regard to whether the applicant would use the relevant health care or community services, in circumstances where, because of the invalidity of reg.2.25B(1) it was necessary for the MOC, and hence, the delegate, to do so.
Item 4005(c) was amended following the decision in Seligman.[127] The relevant criteria are now set out in Item 4005(c) as set out above. Item 4005(c) has been held by the Federal Court to be valid. In Imad the Federal Court said as follows:
“13 In my opinion the regulation is not invalid. The criterion in cl 4005(c) requires the applicant to be not a person who has a disease or condition of a kind described in paragraphs (i) and (ii). The "person" referred to in (i) is not the applicant but a hypothetical person who suffers from the disease or condition which the applicant has. The criterion requires assessment as to whether or not a disease or condition is such that it would be likely to require health care or community services and that provision of health care or community services would result in a significant cost to the Australian community. The assessment of the likelihood of health care or community services is a qualification or characterisation of the kind of disease or condition in question, just like saying "this is a surgical procedure which usually requires general anaesthetic". It is not a prediction of whether the particular applicant will, in fact, require health care or community services at significant cost to the Australian community. This meaning is rendered, in my view, clear beyond argument by the concluding words beginning with "regardless".
14 The intention behind this regulation is understandable, particularly in the light of reg 2.25A. One would expect that a medical officer would be able to assess the nature of a disease or condition and its seriousness in terms of its likely future requirement for health care. On the other hand, one would not expect a medical officer to inquire into the financial circumstances of a particular applicant or any family members or friends or other sources of financial assistance.”[128]
[127] Imad at para.12 per Heerey J.
[128] Imad at paras.13-14 per Heerey J.
In Blair the Federal Court dealt with an application which alleged that a MOC’s opinion was invalid. The Federal Court in that matter adopted what was said in Seligman as to the correctness or validity of a MOC’s opinion, as set out above.
In X v Minister for Immigration and Multicultural and Indigenous Affairs[129] the Federal Court observed as follows:
“14 Ground (d) assumes that the assessment required by the clause is not of an entirely hypothetical person with a certain disease, but "involve[s] consideration of the condition or disease of the nature or kind suffered by the applicant". The prosecutor says that the terms of sub-para 4005(c)(i), in particular "the disease or condition is such that..." (emphasis added), indicate that the decision-maker is required to take into account the nature and extent of the particular symptoms suffered by the prosecutor. In the prosecutor’s submission, this would be the only sensible reading of the provision, being that "[t]here is obviously a wide range of symptomology and different levels of functioning for HIV sufferers". In my view, however, the respondent is correct in saying that para 4005(c) only requires the RMOC to focus upon the position of "a hypothetical person who suffers from HIV" since the terms of the provision focus upon the "disease or condition" generally, not upon the condition of a particular applicant or class of applicants. All the Medical Officer need do is provide an opinion about the likelihood of a hypothetical person with "the disease or condition" requiring health care or community services during the time of the prosecutor’s stay in Australia, and about whether the likely cost to the community of those services would be "significant". The terms and purpose of the condition mandate no finer distinctions.
15 There is no basis for the conclusion that the RMOC failed to comply with these requirements. It is true that the opinion was expressed in imprecise language, but that is not enough to infer error. The RMOC observed first that the prosecutor was a person with HIV. She then observed that as a person with HIV he would in fact require "management of his condition which is at a significant ongoing cost". This should not be understood as misapplying the statutory criteria, but rather as suggesting that the present case is a typical example of that of a sufferer of HIV and of the type and cost of required treatment. The RMOC thus expressed an opinion that a sufferer of HIV would generally be likely to require health care of the kind and generally at the cost of that required by the applicant, and that that cost was significant. It is for that reason that HIV was a disease to which para 4005(c) applied.”[130]
[129] [2005] FCA 429 at paras.14-15 per Finkelstein J (“X’s Case”).
[130] X’s Case at paras.14-15 per Finkelstein J.
In Robinson the Federal Court dealt with the appropriate test to be applied to the construction of the public interest criterion in Item 4005. The Federal Court observed as follows:
“43 … In my view, the applicant’s submission as to the appropriate test to be applied, is to be accepted. A proper construction of Public Interest Criterion 4005 of the Regulations, requires the MOC to ascertain the form or level of condition suffered by the applicant in question and then to apply the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition. It is not the case that the MOC is to proceed to make the assessment at a higher level of generality by reference to a generic form of the condition.”[131]
[131] Robinson FCR at 193-194 per Siopis J; FCA at para.43 per Siopis J.
In relation to the MOC Opinion it is the Court’s view that:
a)the MOC Opinion is obviously an opinion;
b)it is the opinion of the MOC, Dr Anagnostopolou, who has provided it to the Tribunal;
c)Dr Anagnostopolou is, for reasons set out above, a MOC;
d)the MOC Opinion is in relation to whether Mr Reynolds meets the requirements of Item 4005(c)(ii)(A) (and see the further discussion on this issue below); and
e)in the circumstances, the MOC Opinion is to be taken to be correct by the Tribunal for the purpose of deciding whether Mr Reynolds meets the criterion in Item 4005(c)(ii)(A).
As to the MOC Opinion itself, it:
a)identifies a disease or condition, namely cerebral palsy, which Mr Reynolds has;
b)having identified that disease or condition finds that it is likely that it would require health care or community services to be provided during the period of Mr Reynolds’ proposed stay in Australia; and
c)that the provision of the health care or community services would be at significant cost to the Australian community.
In making that assessment the MOC applied the terms of Mr Reynolds’ particular condition to a hypothetical person, as the MOC was required to do,[132] and disregarding whether the provision of care or services to Mr Reynolds himself would result in significant cost to the Australian community, as the MOC was also required to do.[133]
[132] Robinson FCR at 193-194 per Siopis J; FCA at para.43 per Siopis J. See also X’s Case at paras.14-15 per Finkelstein J and Blair at para.34 per Carr J.
[133] Blair at para.45 per Carr J; Imad at para.13 per Heerey J.
In the circumstances, the MOC Opinion has had regard to, and been arrived at in compliance with, the relevant statutory criterion. The MOC Opinion is not invalid, and the Tribunal was entitled to rely upon it.
For all the reasons set out above, ground 1 of the application has not been made out, and must fail.

Ground 2

Ground 2 is as follows:
Further or in the alternative, the Tribunal made errors of law constituting jurisdictional errors on the face of the Tribunal’s decision by failing to take into account or alternatively gave insufficient weight to relevant considerations to the assessment of whether the Applicant met Public Interest Criterion 4005.
Particulars
The RMOC was provided with the written opinions of medical and education specialists who have had personal experience with the Applicant. These opinions all supported a contention that the Applicant satisfied Public Interest Criterion 4005, and despite this substantial body of evidence to the contrary, the RMOC found that the Applicant did not meet Public Interest Criterion 4005.
Mr Reynolds submits that the MOC was provided with the written opinions of medical and other specialists who have had personal experience with the applicant.[134] These are contained in the Professor Gubbay report and the Ruth Jodrell report. These opinions all supported a contention that the applicant satisfied Item 4005, and despite this substantial body of evidence to the contrary (which Mr Reynolds says was not discussed), the MOC found that Mr Reynolds did not meet the criterion. Mr Reynolds submits that the Tribunal could have made further enquiries about this issue, and it was unreasonable for it not to have done so.
[134] CB 362.
The Minister submits that:
a)the principles applicable to an alleged failure to take into account were enunciated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd;[135]
b)Mr Reynolds has failed to identify any considerations that the Tribunal is bound to take into account as a necessary precondition to a proper exercise of jurisdiction. Any such exercise in asserting such mandatory conditions arising by implication, as a matter of statutory construction, must confront the statutory text of reg.2.25A of the Migration Regulations; and
c)this Court is bound by the statement of principle in Blair[136] to the effect that a MOC is entitled to differ from the opinions expressed in reports provided to the MOC. It necessarily follows that, on review, the Tribunal is under no obligation to take into account any particular opinions of medical and education specialists.
[135] (1986) 162 CLR 24, especially at 39-42 per Mason J (“Peko-Wallsend”).
[136] Blair at paras.32-37 per Carr J.
In Peko-Wallsend the relevant Minister in deciding whether land should be granted to a land trust to be held for the benefit of aboriginals, was required to be satisfied that that land should be granted, and was bound to take into account certain matters including the detriment to persons or communities if the land claim were acceded to either in whole or in part. In circumstances where the Minister in making a determination of satisfaction had not had materials brought to his attention which revealed that certain comments in the Land Rights Commissioner’s report (which the Minister was obliged to consider) were based on an erroneous view of the facts the High Court held that failure to consider that material was to ignore relevant considerations.
The leading judgment in Peko-Wallsend was delivered by Mason J (with whom Gibbs CJ and Dawson J agreed). Mason J took the following propositions to be established:
a)that the “ground of failure to take into account a relevant consideration can only be made out if a decision maker fails to take into account a consideration which he is bound to take into account in making that decision”[137] Mason J noted “that a person entrusted with a discretion ‘must call his own attention to the matters which he is bound to consider’”;[138]
b)that if the relevant factors are not expressly stated they must be determined by implication from the subject matter, scope and purpose of the relevant legislation, and where the discretion is unconfined the factors that may be taken into account and the exercise of the discretion are similarly unconfined, except that they are impliedly limited by the subject matter, scope and purpose of the relevant legislation;[139]
c)a factor may be so insignificant that it could not have materially affected the decision, and therefore failure to take it into account will not justify setting aside the impugned decision and ordering that the discretion be re-exercised according to law;[140]
d)that a court reviewing the exercise of an administrative discretion must constantly bear in mind its limited role, and in particular that its function is not to substitute its own decision for that of the administrator exercising discretion vested in the administrator by the legislature.[141] Generally, therefore, it is not for a court reviewing the administrative decision maker’s decision to determine appropriate weight to be given to matters required to be taken into account in exercising the statutory power, although there may be some circumstances where an administrative decision may be set aside where the decision maker has failed to give adequate weight to a relevant factor of great importance or has given excessive weight to a relevant factor of no great importance.[142] However, in those circumstances, the preferred ground is that the decision is manifestly unreasonable.[143] Hence, “a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on it merits”;[144] and
e)due allowance must be made for the fact that an administrative decision is being made by a Minister of the Crown who may be required to take into account broader policy considerations in the exercise of a ministerial discretion.[145]
[137] Peko-Wallsend at 39 per Mason J.
[138] Peko-Wallsend at 39 per Mason J, citing Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 at 228 per Lord Greene MR (“Wednesbury”).
[139] Peko-Wallsend at 39-40 per Mason J.
[140] Peko-Wallsend at 40 per Mason J.
[141] Peko-Wallsend at 40 per Mason J.
[142] Peko-Wallsend at 41 per Mason J.
[143] Peko-Wallsend at 41 per Mason J.
[144] Peko-Wallsend at 42 per Mason J.
[145] Peko-Wallsend at 42 per Mason J.

The Minister submits that:
a)this ground does not invoke a form of jurisdictional error that is known to the law of Australia;[177] and
b)Mr Reynolds compounds the extreme difficulty of conceptualising the claimed jurisdictional error of this nature, by advancing no basis as to the derivation of the purported public policy beyond mere conclusory assertion.[178]
[177] VAT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 255 at 24 per Wilcox, Gray and RD Nicholson JJ (“VAT”).
[178] See Mr Reynolds’ Submissions, para.47.
VAT is authority for the proposition that excess of jurisdiction by the Tribunal cannot arise from its acting in breach of public policy.[179] In the circumstances, this ground does not give rise to jurisdictional error.
[179] VAT at para.24 per Wilcox, Gray and RD Nicholson JJ.
In any event, the particulars relied upon cannot be established. For reasons outlined above, the Tribunal did not rely upon an assessment by the MOC that was made with respect to a generalised notion of cerebral palsy. The MOC provided an opinion having regard to Mr Reynolds’ particular condition, and his particular prognosis on the basis of his particular condition. Thus, even if there were an identifiable ground of jurisdictional error in this ground, it could not have been established on the facts.
In the circumstances, ground 5 of the application is not made out, and must therefore fail.

Ground 6

Ground 6 is as follows:
Further or in the alternative, the Tribunal made errors of law constituting jurisdictional errors on the face of the Tribunal’s decision by failing to give adequate reasons for its decision pursuant to section 368 of the Act.
Particulars
a.     The reasons given by the Tribunal on 16 July 2008 (“the reasons”) assert that the Tribunal considers that the RMOC’s opinion “is a valid opinion”.
b.     The reasons do not set out the Tribunal’ findings on any material question of fact or refer to the evidence or to any other material on which the findings of fact were based.
c. The reasons fail to set out the findings on any material question of fact or refer to the evidence or to any other material on which the findings of fact were based in relation to the question of whether the RMOC was a medical officer of the Commonwealth within the definition of Regulation 2.25A(1) of the Regulations.
d.     The reasons do not contain any discussion of the concepts of likelihood of significant cost to the community.
e.      The reasons fail to set out the findings on any material question of fact or refer to the evidence or to any other material on which the findings of fact were based in relation to the question of whether the Tribunal was properly reconstituted pursuant to section 355 of the Act.
Mr Reynolds submits that:
a)as a matter of law, reasons of any court or tribunal must be adequate to explain the result to the parties and to any appeal court.[180] A failure to provide adequate reasons will be an error of law,[181] at least where the failure would frustrate a right of appeal,[182] and thus a jurisdictional error;
b)on several crucial issues the Tribunal Decision is not adequate to explain the result. The Tribunal Decision asserts that, but do not explain why, the Tribunal considers that the MOC’s Opinion “is a valid opinion”. The Tribunal Decision assumes, without referring to the evidence on which the assumption was based, that the “medical officer” is a MOC within the definition of reg.2.25A(1) of the Migration Regulations. It is the duty of the Tribunal to set out the evidence which supports the conclusion. The Tribunal Decision does not set out the findings on any material question of fact or refer to the evidence or to any other material on which the findings of fact were based in relation to the question of whether the MOC was a medical officer of the Commonwealth within the definition of the Migration Regulations;
c)the Tribunal Decision does not contain any discussion of the fundamental concepts of likelihood of significant cost to the community, or of prejudice to the access of a citizen or permanent resident to health care, or give any consideration to the absence of any evidence or discussion concerning them in the medical officer’s report. The consideration of the question was plainly inadequate;
d)the MOC’s Opinion seems to use the word “community” as a synonym for the Commonwealth of Australia, although much health care is provided in Australia by the States or is funded by private health care funds. No consideration is given, in the MOC’s report or in the Tribunal Decision, as to what “community” is referred to, or in what way and to what extent that entity might be responsible for the costs of health care; and
e)the Tribunal Decision also fails to set out the findings on any material question of fact or refer to the evidence or to any other material on which the findings of fact were based in relation to the question of whether the Tribunal was properly reconstituted pursuant to s.355 of the Migration Act.
[180] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279 per McHugh J (“Soulemezis”); Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at 19 per Gray J.
[181] Pettit v Dunkley [1971] 1 NSWLR 376.
[182] Perkins v County Court of Victoria (2000) 2 VR 246 at para.56 per Buchanan JA; Waterways Authority v Fitzgibbon (2005) 221 ALR 402 at 129 per Hayne J.
The Minister submits that:
a)the Tribunal gave reasons for its decision which complied with s.368 of the Migration Act. Specifically, the Tribunal:
i)set out its decision on the review;
ii)sets out the reasons for that decision;
iii)set out its findings on material questions of fact; and
iv)referred to evidence or any other material on which the findings of fact were based;
b)the Tribunal was entitled to, having found that the MOC’s Opinion was valid, accept it without providing further factual analysis of Item 4005(c). The MOC is not required to give reasons for the MOC’s Opinion, and it is not then open to the Tribunal (on merits review) or to a court (on judicial review) to draw inferences from an opinion in the absence of reasons;[183] and
c)in any event, a provision of inadequate reasons, to the extent that it amounts to a breach of s.368 of the Migration Act in any given case, does not give rise to jurisdictional error.[184]
[183] Ramlu v Minister for Immigration and Citizenship (2005) 195 FLR 203 at 210 per Driver FM; [2005] FMCA 1735 at para.22 per Driver FM.
[184] Citing Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423-424 per McHugh J; [2000] HCA 1 at paras.68-70 per McHugh J (in the context of the closely analogous s.430 of the Migration Act) (“Durairajasingham”).
The Tribunal Decision is clearly not so inadequate as to frustrate a right of appeal, or an application for judicial review. If the present grounds of application for judicial review are any guide it can hardly be said to have frustrated or stultified Mr Reynolds’ ability to make the application.
The Tribunal Decision does say why it is that the Tribunal considers that the MOC’s Opinion is valid. It is because the Tribunal “received legal advice” to that effect.[185] If, as appears to be the case (which does not appear to be disputed), the Tribunal received oral advice to that effect without reasons, and without subsequent written advice, there is little more that the Tribunal could have said on the question of the validity of the MOC’s Opinion.
[185] CB 408.
On the questions of the Tribunal:
a)assuming that the MOC was an MOC without referring to any evidence to that effect, and
b)not setting out any findings or evidence with respect to the reconstitution of the Tribunal,
the presumption of regularity precludes the Tribunal from having to do so. For reasons set out above, the presumption of regularity applies until the appointment is challenged, and then the onus is on the challenger to establish invalidity. The Tribunal was entitled, absent proof to the contrary, to presume regularity in these matters.
The Tribunal Decision does not contain any significant discussion of the issues of cost or prejudice to access because once the MOC’s Opinion was accepted as a valid opinion, the Tribunal was obliged to accept the MOC Opinion that there would be a significant cost to the Australian community. Furthermore, having regard to the prognosis in the MOC’s Opinion, the view expressed as to significant cost and prejudice to access was one which was clearly open to the MOC, and hence the Tribunal.
The submission that “community” has been interpreted as a synonym for the “Commonwealth of Australia”, and that the MOC has failed to consider the nature of how health care is provided in Australia, is one for which the Court cannot find a shred of support, directly or indirectly, in the MOC Opinion or Tribunal Decision. In any event, the MOC is taken to be qualified to opine on such issues,[186] as they impact the “Australian community”.[187] The MOC is required to consider the impact on the “Australian community”, and there is no obligation on either the MOC or the Tribunal, as suggested by Mr Reynolds’ argument, to identify the “community” concerned. The relevant “community” is already identified in item 4005(c)(ii)(A) of the Migration Regulations. There is nothing in the MOC Opinion or the Tribunal Decision to indicate that, in either of them, the wrong community was considered.
[186] Imad at para.14 per Heerey J; Seligman FCR at 128 per French, North and Merkel JJ; FCA at para.53 per French, North and Merkel JJ.
[187] Migration Regulations, Item 4005(c)(ii)(A).
In the Court’s view, the Tribunal Decision complied with the essential requirements of s.368 of the Migration Act as set in the Minister’s submission. There was therefore no breach of the requirements of s.368 of the Migration Act. Even if there was it does not establish jurisdictional error, because in matters under the Migration Act, “the requirement that the tribunal give reasons for its decision is not a requirement which goes to jurisdiction.”[188]
[188] Durairajasingham ALR at 424 per McHugh J; HCA at para.70 per McHugh J.
In the circumstances, ground 6 of the application is not made out, and must therefore fail.

Ground 7

Ground 7 is as follows:
Further or in the alternative, the Tribunal made errors of law constituting jurisdictional errors on the face of the Tribunal’s decision by incorrectly considering that the assessment of the RMOC was binding despite the fact that the assessment was defective.
Particulars
The RMOC concluded that “therefore the Applicant does not meet Public Interest Criterion 4005.” The report does not specify which of the several criteria contained in Public Interest Criterion 4005 the Applicant did not meet.
Mr Reynolds argues that the MOC Opinion concludes that “therefore the Applicant does not meet Public Interest Criterion(s) 4005” (sic), and that that is not a sufficiently precise conclusion to comply with the requirements of Item 4005. This is argued to be because it does not specify which of the several criteria contained in Item 4005 Mr Reynolds did not meet, and in particular, it does not specify that Mr Reynolds does not meet the requirements of Item 4005(c), which the Tribunal has taken it to mean. Mr Reynolds says non-compliance cannot be inferred, unless one also infers that Mr Reynolds has tuberculosis, which (it is common ground) he does not.[189]
[189] CB 199.
The Minister submits that:
a)this ground attempts to outflank the statement of principle enunciated in Blair, asserting a technical error in the mode of expression of the MOC Opinion;
b)an assessment of the totality of the MOC Opinion, the MOC Request, and the earlier documentation by the MOC concerning Mr Reynolds’ circumstances, makes it clear that the MOC was addressing Item 4005(c)(ii)A; and
c)the effect of Item 4005 is that once a disease or condition falls within one of Item 4005’s specified sub-paragraphs (as the MOC concluded here) an applicant fails the entire criterion in Item 4005.
It is plain on examination of the MOC Opinion that what was under consideration by the MOC in relation to Mr Reynolds was Item 4005(c)(ii)(A) of the Migration Regulations because the MOC says:
a)Mr Reynolds has been assessed against “the regulation set out at Schedule 4 of the Migration Regulations”, and then sets out Item 4005(c)(ii)(A);[190]
b)in the “Prognosis” that there “would be a significant cost to the Australian community” for the provision of services to a hypothetical person with Mr Reynolds’ level of impairment;[191] and
c)
“[t]his disease or condition is a disease or condition to which paragraphs 4005(c)(ii)(A) – new [sic] in Schedule 4 of the

Migration Regulations apply”.[192] The expression is not elegant here, and attention to detail is wanting, but it is clear what is meant.
[190] CB 363.
[191] CB 364.
[192] CB 364.
The MOC Opinion having dealt with the above matters then concludes that:
A person [which must be taken as a reference to the “hypothetical person” in the “Prognosis” as Mr Reynolds is either referred to by name or as the “applicant” in the MOC Opinion] with such a disease or condition would be likely to require health care or community services or would be likely to meet the medical criteria for the provisions [sic] of a community service and provision of such health care or community services relating to the disease or condition would be likely to result in a significant cost to the Australian community in the areas of health care and community services …[193]
[193] CB 364.
Again the expression is not elegant, but that does not establish error,[194] and the MOC goes on to refer to the criteria related to Item 4005(c)(ii)(B) of the Migration Regulations, but that reference must be considered surplusage, because it is otherwise clear, for reasons set out above, that the MOC was only considering Item 4005(c)(ii)(A) of the Migration Regulations.
[194] X’s Case at para.15 per Finkelstein J.
It follows from the above analysis that the MOC Opinion was considering only Item 4005(c)(ii)(A) of the Migration Regulations, and having found that Mr Reynolds failed to meet that criterion, he failed to meet Item 4005 at all, and the MOC was entitled to and did find this to be the case.
In the circumstances, ground 7 of the application is not made out, and must therefore fail.

Alleged failure to comply with s.359A of the Migration Act – ground 9

Ground 9 is as follows:
Further or in the alternative, the Tribunal made an error of law constituting a jurisdictional error in that it failed to comply with section 359A of the Act.
Particulars
Prior to making its decision the Tribunal obtained information namely legal advice concerning the validity of the opinion of the Medical Officer of the Commonwealth given by Dr Clea Anagnostopoulou, which formed a reason or the reason for affirming the decision under review, but contrary to section 359A the Tribunal did not disclose either the existence or the content or any particulars of that information to the Applicant, did not ensure that the Applicant understood the relevance of the information, and did not invite the Applicant to comment on the information by any of the methods set out in section 379A or at all.
Mr Reynolds submits that:
a)the Tribunal also failed to comply with s.359A of the Migration Act. That section provides a form of codified natural justice, a “statutory enactment of the basic rules of natural justice”, with which it is obligatory for the Tribunal to comply.[195] It requires that the Tribunal give, in writing, particulars of any information which would be the reason, or part of the reason, for affirming the decision under review, to the applicant;[196]
[195] Citing the words of the Full Court of the Federal Court with respect to s.424A of the Migration Act (the corresponding provision of the Migration Act to s.359A for the RRT) in SRFB v Minister for Immigration and Indigenous Affairs [2004] FCAFC 252 at para.52 per Ryan, Jacobson and Lander JJ.
[196] Migration Act, ss.359A(1) and (2) and 379A.
b)in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs[197] the High Court held that a failure by the Refugee Review Tribunal to comply with s.424A of the Migration Act amounted to jurisdictional error.[198] In SAAP McHugh J said:
[197] (2005) 228 CLR 294; [2005] HCA 24 (“SAAP”).
[198] SAAP CLR at 321-322 per McHugh J; HCA at para.77 per McHugh J, CLR at 345-346 per Kirby J; HCA at para.173 per Kirby J, and CLR at 353-354 per Hayne J; HCA at paras.204-208 per Hayne J; MZXFQ v Minister for Immigration and Citizenship [2007] FCA 826 at para.19 per Kenny J.
“There can be no “partial compliance” with a statutory obligation to accord procedural fairness. Either there has been compliance or there has not. Given the significance of the obligation in the context of the review process (the obligation is mandated in every case), it is difficult to accept the proposition that a decision made despite the lack of strict compliance is a valid decision under the Act.”[199]
c)prior to making its decision the Tribunal obtained information namely legal advice concerning the validity of the MOC Opinion.[200] The validity or otherwise of the MOC Opinion was fundamental to the affirming of the decision under review, because of the conclusive force which reg.2.25A(3) of the Migration Regulations gives to a valid opinion. Contrary to s.359A of the Migration Act the Tribunal did not:
i)disclose the content or any particulars of that information (or even its existence) to Mr Reynolds;
ii)ensure that Mr Reynolds understood the relevance of the information; and
iii)did not invite Mr Reynolds to comment on the information by any of the methods set out in s.379A of the Migration Act or at all;
d)Mr Reynolds pressed for discovery of the legal advice in this proceeding, and was told that “the legal advice referred to at paragraph 27 in the second respondent’s decision was advice of an oral nature and that no written legal advice exists”;[201] and
e)a decision has been made that the MOC Opinion is valid (and therefore conclusive) based upon information which was not given to Mr Reynolds in any form, and certainly not in the written form required by the Migration Act, because it was not in writing. Tribunals which are under a duty to provide particulars of relevant information in writing to applicants should not as a general rule, receive secret oral communications which they rely upon but which they do not divulge.
[199] SAAP CLR at 321-322 per McHugh J; HCA at para.77 per McHugh J.
[200] Tribunal Decision, para.27; CB 408.
[201] Affidavit of Rebecca Lee Foster, sworn 5 December 2008, Annexure RLF 7, being a letter from Australian Government Solicitor dated 25 September 2008.
The Minister submits that legal advice, or comment on a legal position, does not constitute a category of “information” within the ambit of s.359A(1)(a) of the Migration Act such as to invoke the obligations of that section upon the Tribunal.[202] In any event, a finding of error on the basis asserted by this ground (which error is denied) could not:
a)constitute jurisdictional error;
b)sensibly entitle the applicant to any relief; and
c)the nature of the Tribunal’s statutory task, circumscribed as it was by the statutory framework was such that compliance with the putative obligations imposed by s.359A of the Migration Act could not have affected the result on review
[202] Carlos v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 456 at 462-464 per Wilcox, von Doussa and Finkelstein JJ; FCA at paras.22-33 per Wilcox, von Doussa and Finkelstein JJ (“Carlos”).

The legal advice would ordinarily attract legal professional privilege, but in this case it is arguably put in issue because of the way in which it has been referred to the Tribunal.[203]
[203] Adelaide Steamship Co Ltd & Anor v Spalvins & Ors (1998) 81 FCR 360 at 372 per Olney, Kieffel and Finn JJ.
The oral legal advice to the Tribunal was that the MOC Opinion was valid. Short of the ultimate effect of the legal advice, the content of, and the bases for, the legal advice has not been disclosed by the Minister or the Tribunal. Nevertheless, it is clear that the Tribunal had regard to the advice to arrive at a conclusion that the MOC Opinion was valid.
The extent of the voluntary disclosure of the legal advice is, in the Court’s view, sufficient disclosure to constitute waiver of any legal professional privilege therein. In the language of the Full Federal Court in Commissioner of Taxation v Rio Tinto Ltd,[204] this is a case where an assertion made in litigation lays open the privilege to scrutiny with the consequence that an inconsistency arises between the making of the assertion and the maintenance of the privilege.[205]
[204] (2006) 151 FCR 341; [2006] FCAFC 86 (“Rio Tinto”).
[205] Rio Tinto, FCR at 360 per Kenny, Stone and Edmonds JJ; FCAFC at para. 65 per Kenny, Stone and Edmonds J.
The fundamental question however is whether or not the legal advice constituted information, particularly for the purposes of s.359A(1)(a) of the Migration Act. In Carlos the Full Court of the Federal Court distinguished between the provision of factual information adverse to an applicant and the provision of comment (in that case by a colleague of a Tribunal member concerning the proper interpretation of a regulation). The former is “information” because it is new material not previously raised, and in circumstances where it is new information prejudicial to an applicant the purpose of s.359A is to allow an applicant to comment on that information. By contrast, legal advice is comment upon an existing factual situation, and not new information prejudicial to the applicant. And that is the position in this matter. Mr Reynolds challenged the validity of the MOC Opinion, resulting in the Tribunal obtaining the legal advice that the MOC Opinion was a valid opinion. That is legal advice or comment and not information within the meaning of s.359A.[206]
[206] Carlos FCR at 463 per Wilcox, von Doussa and Finkelstein JJ; FCA at para.32 per Wilcox von Doussa and Finkelstein JJ.
In those circumstances, ground 9 of the application is not made out, and must fail.

Conclusions and Orders

All of the grounds of the application have failed. Mr Reynolds has failed to establish jurisdictional error in the Tribunal Decision. Accordingly, the application must be dismissed. There will be an order to that effect.
The Court will hear the parties as to costs.

I certify that the preceding one hundred and forty-nine (149) paragraphs are a true copy of the reasons for judgment of Lucev FM

Associate: S Gough

Date: 15 January 2010