Wong v Minister for Immigration
[2018] FCCA 3490
•29 November, 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WONG & ORS v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3490 |
| Catchwords: MIGRATION – Review of decisions – Judicial review – decision of the Minister for Immigration and Border Protection – opinion of the Medical Officer of the Commonwealth – Business Innovation and Investment (Class EB) (subclass 188) visa – whether error in the opinion of the Medical Officer – whether error in the opinion infects decision of the Minister with jurisdictional error – whether error in the opinion makes decision of the Minister unreasonable. |
| Legislation: Migration Act 1958 (Cth), ss.65, 476 Migration Regulations 1994 (Cth), reg.2.25A, cls. 4005(1)(c)(i)(B), 188.255, Schs 2, 4 |
| Cases cited: Blair v Minister for Immigration and Multicultural Affairs [2001] FCA 1014 Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 Minister for Immigration and Multicultural Affairs v Seligman (1999) 55 ALD 374 Perez v Minister for Immigration and Border Protection [2017] FCAFC 180 |
| First Applicant: | PAK KIN WONG |
| Second Applicant: | RYAN CHEUK YIN |
| Third Applicant: | KYLE CHEUK LOK |
| Fourth Applicant: | LORRAINE LOK HEI |
| Fifth Applicant: | YI WA ALICE |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | MEDICAL OFFICER OF THE COMMONWEALTH |
| File Number: | BRG 967 of 2017 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 22 June 2018 |
| Date of Last Submission: | 6 July 2018 |
| Delivered at: | Brisbane |
| Delivered on: | 29 November, 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Boccabella |
| Solicitors for the Applicant: | AJ Torbey and Associates |
| Counsel for the First Respondent: | Mr McGlade |
| Solicitors for the First Respondent: | Sparke Helmore |
| The Second Respondent entered a submitting appearance |
ORDERS
BY CONSENT:
The Medical Officer of the Commonwealth be removed as a second respondent to these proceedings.
THE COURT FURTHER ORDERS THAT:
The application filed on 11 September, 2017 is dismissed.
The applicants pay the first respondent’s costs of and incidental to the application fixed in the sum of $9,078, being $7,328 costs of and incidental to the application for review and $1,750 being the costs thrown away by the adjournment of 11 May, 2018.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 967 of 2017
| PAK KIN WONG |
First Applicant
| RYAN CHEUK LOK |
Second Applicant
| KYLE CHEUK LOK |
Third Applicant
| LORRAINE LOK HEI |
Fourth Applicant
| YI WA ALICE |
Fifth Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| MEDICAL OFFICER OF THE COMMONWEALTH |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review, pursuant to s.476 of the Migration Act 1958 (Cth) of a decision of a delegate of the first respondent made on 7 August, 2017 to refuse (Subclass 188) visas to the applicants.
By the application, the applicants seek to challenge the delegate’s decision by demonstrating that the opinion of a Medical Officer of the Commonwealth, upon which the delegate’s decision was based because it was unlawful, or was otherwise legally unreasonable.
The first respondent opposes the application.
Background
The background facts are uncontroversial and what follows is taken largely from the submissions of the first respondent.
The first applicant and the fifth applicant are husband and wife. The second to fourth applicants are their children. The third applicant has autism spectrum disorder. They are all nationals of Hong Kong.
On 24 June, 2016 the first applicant applied for a Business Skills (Provisional) (Class EB) Business Innovation and Investment (Provisional) (Subclass 188) visa. Such a visa permits people who are going to make significant investments in Australia to temporarily reside here. The second to fifth applicants also applied for the same visa on the basis that they were members of the same family unit as the first applicant.
In order to obtain a (Subclass 188) visa, the first applicant needed to satisfy a number of criteria set out in cl.188 of schedule 2 to the Regulations. The particular criterion relevant to this case is that contained in cl.188.255, which provides:
(1) The applicant satisfies public interest criterion 4005.
(2) Each member of the family unit of the applicant who is an applicant for a Subclass 188 visa satisfies public interest criterion 4005.
(3) Each member of the family unit of the applicant who is not an applicant for a Subclass 188 visa satisfies public interest criterion 4005 unless it would be unreasonable to require the member to undergo assessment in relation to the criterion.
Clause 188.255 required the first applicant to satisfy the first respondent that each member of his family unit satisfied public interest criterion 4005.
The public interest criteria themselves are contained in Schedule 4 of the Regulations. PIC 4005 is commonly known as the “health requirement”. Of particular relevance in this case is PIC 4005(1)(c)(ii):
(1) The applicant:
…
(c) is free from a disease or condition in relation to which:
…
(ii) the provision of the health care or community services would be likely to:
(A) result in a significant cost to the Australian community in the areas of health care and community services; or
(B) prejudice the access of an Australian citizen or permanent resident to health care or community services;
regardless of whether the health care or community services will actually be used in connection with the applicant; and
…
To determine whether PIC 4005(1)(c)(ii) was met, reg 2.25A(1) required the first respondent to seek an opinion from a Medical Officer of the Commonwealth. Regulation 2.25A(1) provides:
2.25A Referral to Medical Officers of the Commonwealth
(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(1)(a), 4005(1)(b), 4005(1)(c), 4007(1)(a), 4007(1)(b) or 4007(1)(c) of Schedule 4…
On 6 December, 2016 the first respondent was provided with an opinion from a Medical Officer of the Commonwealth. The MOC’s opinion was that PIC 4005(1)(c)(ii)(A) was not met because of the first applicant’s son’s autism spectrum disorder. This was significant for the first applicant because, in consequence of reg 2.25A(3), the first respondent was compelled to accept the MOC’s opinion as being correct. That regulation provides:
(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.
On 6 December, 2016 a departmental officer provided a copy of the MOC’s opinion to the first applicant and invited him to comment on the report. On 31 January, 2017 the first applicant’s agent provided extensive written submissions and evidence in response to the invitation.
On 15 February, 2017 the respondent received an updated MOC opinion that took into account the matters raised in the first applicant’s agent’s 31 January, 2017 submissions. Again, the MOC’s opinion remained that PIC 4005(1)(c)(ii)(A) was not met.
Later that same day, a departmental officer provided a copy of the second MOC opinion to the first applicant and invited him to comment on that opinion. On 15 May, 2017 the first applicant’s agent provided further submissions and evidence in response to the second invitation to comment.
On 2 June, 2017 the first respondent received an updated MOC opinion that took into account the matters raised in the first applicant’s agent’s 15 May, 2017 submissions. Again, the MOC’s opinion remained that the PIC 4005(1)(c)(ii)(A) criterion was not met.
On 5 June, 2017 a departmental officer provided a copy of the third MOC opinion to the applicant and invited him to comment on that opinion. On 5 July, 2017 the first applicant’s agent provided further submissions in response to the third invitation to comment.
On 7 August, 2017 a delegate of the first respondent made a decision to refuse the first applicant’s visa in consequence of his son (and, therefore, the first applicant) failing to meet PIC 4005(1)(c)(ii)(A). Consequently, the applications of the second to fifth applicants (being members of the same family unit) also failed.
On 11 September, 2017 the applicants applied to this Court for orders declaring the decision of the delegate to be null and void and for the issue of a writ of mandamus, directed to the first respondent, requiring the matter be re-determined according to law.
On 4 April, 2018 the respondent filed and served a written outline of submissions in response and opposition to the orders sought by the applicants.
On 10 May, 2018 the applicants made written submissions containing 10 grounds of judicial review. On 14 June, 2018 the applicant filed and served consolidated submissions within which they sought not to press grounds 6, 9 and 10.
At the final hearing of the proceeding on 22 June, 2018 the parties consented to the removal of the MOC as a second respondent to the present proceeding. The Court made orders permitting the respondent to file supplementary submissions by 6 July, 2018. The respondent filed those submissions.
The grounds of review
Grounds 1-4 and 8-9 are related and were dealt with together in argument.
Those grounds are in the following terms:
The failure of the [MOC] to properly apply or interpret public interest criterion (“PIC”) 4005 has the consequence of rendering their opinion improper for the purpose of r.2.25A of the Migration Regulations 1994 (Cth). In accordance with Seligman, this error of the second respondent vitiates the decision of the… respondent. Therefore, the decision of the… respondent effected jurisdictional error. [Further or alternatively it involved an] improper exercise of power.
2. The second respondent failed to properly apply and/or interpret paragraph 4005(1)(c) of Schedule 4 to the Migration Regulations 1994;
3. Hence the opinion of the second respondent is not a proper opinion for the purpose of Regulation 2.25A of the Migration Regulations 1994;
4. The decision of the first respondent was therefore infected with jurisdictional error;
…
8. Error of Law
9. The decision of the first respondent and/or the opinion of the second respondent involved an error of law;
In Minister for Immigration and Multicultural Affairs v Seligman (1999) 55 ALD 374, their Honours French, North and Merkel JJ said:
67. It is not necessary for present purposes to decide whether his Honour was correct in characterising the opinion as a judicially-reviewable decision. He took the view that the Medical Officer erred in passing upon the likelihood that Gregory's “condition” would require long term income support. The way his Honour saw it that was an error about the scope of “community services” contemplated by the criterion in Item 4005(c)(i). If that is correct and it were such an error then the opinion on the face of it did not address the criterion and the delegate would have erred in taking it as correct.
68. 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.
69. On this approach it makes no difference to the outcome of the case that his Honour characterised the decision of the Medical Officer as a judicially-reviewable decision. If the opinion is vitiated by error of law the delegate errs in taking it as correct. On the basis already outlined, the Court has jurisdiction to consider the lawfulness of the Medical Officer’s Opinion as an element of its consideration of the lawfulness of the delegate’s decision. The first two grounds of appeal which are both directed to this issue therefore fail.
Thus, an error of law on the part of the MOC would have the consequence that the delegate’s decision, made in reliance on that opinion, is affected by jurisdictional error: see also Perez v Minister for Immigration and Border Protection [2017] FCAFC 180 at [9].
Part One – Whether error in interpretation and application by the MOC
Contention 1 – Whether evidence to support the opinion of the MOC that ‘State Disability Services’ would be required
In the present case, the task the MOC was required to undertake by reg.2.25A was to form an opinion about whether the third applicant met the requirements of PIC 4005(1)(c)(ii). That called for a medical judgment that was supported by evidence. The test was explained by Siopis J in Robinson v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 148 FCR 182 at [43]:
I turn to deal with the first issue. 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.
The applicants’ first contention is that the MOC’s opinion that the third applicant required State disability services was made without any evidence to support it, or alternatively, it was made in the face of evidence to the contrary of the opinion formed by the MOC.
The MOC’s opinion recorded the material to which regard was had when forming the relevant opinion:
In preparing this opinion, I have had regard to the information available to date concerning the applicant, including, but not limited to the report of the [sic] panel physician examination of 6 October 2016; reports from Kathleen Man, Principal, Aoi Pui School. Hong Kong (7 November 2016), Stevens Lo (13 October 2016) and Angel Au (15 November 2016 and 18 January 2017) and the submission from Henry Li dated May 12, 2017 and a previous undated submission. This opinion is provided following receipt of additional information after the Medical Officer opinion of 15 February 2017. The previous opinion should be disregarded for the purpose of making the visa decision as this current opinion is based on the most up-to-date information available.
They submit that:
..the only medical evidence before the MOC was that of Dr Au who gave an expert report which stated (CB 39 point 8, 40 and 291):
…need for community services and support are likely to be minimal in the future….
There is no prescribed medical treatment or any medications…
….is not required to see a psychologist on a regular basis…
[The Third Applicant] does not access any specific community support services in Hong Kong.
He does however derive benefit from attending a school for students with mild condition of Autism Spectrum Disorder.
In summary, [The Third Applicant] has achieved independence in self care and daily living skills; the only provision necessary for him is a school for children with mild condition of Autism Spectrum Disorder.
Dr Au’s report provided an opinion that the third applicant’s condition was of such a level of function that “a hypothetical person in Hong Kong with similar condition and severity” would likely require “an alternative education placement only” and that “[s]upport from public allied health therapy would likely not be prescribed.”
The applicants’ argued that the MOC opinion under review refers to the panel physician examination of 6 October, 2016 but that report was of no assistance to the formation of the opinion that the MOC needed to express. That is clearly so because on 17 October, 2017 the MOC wrote:
The applicant’s health assessment has been deferred as I do not have sufficient information to determine whether or not they meet the health requirement. The applicant must complete the following additional assessments and/or provide the additional information specified below:
124
A report from a specialist Paediatrician and/or developmental Psychologist is required regarding applicant’s cognitive and developmental status. Please forward a report addressing history, diagnosis, management needs and any social services required. If applicable, please also attach a report from the applicant's school (principal), outlining any special services required/received (for example number of hours per day an educational assistance is received.
The applicants then provided the report of Dr Au to which I have referred above.
The applicants invite the conclusion that there was no evidence to support the opinion of the MOC that the third applicant required State disability services and it was therefore unlawful. The delegate’s decision was thereby infected by jurisdictional error.
The question of what services were likely to be required was to be determined according to the MOC’s medical judgment and opinion and there was no need for the finding to be corroborated by other opinions: Minister for Immigration and Multicultural Affairs v Seligman; Blair v Minister for Immigration and Multicultural Affairs [2001] FCA 1014 at [33], [36]. Additionally, as was held in Blair, the MOC’s possession of medical evidence contrary to their own opinion would not have the consequence of vitiating the MOC’s opinion: at [38].
The first respondent points out that there was evidence that a hypothetical person in Australia with the same form and level of condition as the third applicant would be likely to require State disability services. The particular impairment of the third applicant t identified in the MOC opinion dated 2 July, 2017 involved “impaired language, communication, social communication and knowledge acquisition skills”. That impairment had been improved by “allied health therapy” in the past and the MOC acknowledged that the functional impact of the condition was “now relatively mild”. The MOC opined that a hypothetical person in Australia with the same condition as the third applicant, at the same severity, would be likely to require community services including but not limited to special education and state disability services such as allied health therapy.
The MOC then said:
I consider that a hypothetical person with this disease or condition, at the same severity as the applicant, would be likely to require health care or community services during the period specified above.
These services would be likely to include.
Special education services
State disability services
The opinion expressed by the MOC was a medical judgment about the need for services by the third applicant based upon the description of that condition or impairment as described in Dr Au’s report. I accept the submission that it was open to the MOC to have formed the opinion that a hypothetical person comparable to the third applicant would be likely to require health care, community services, special education or allied health services. Dr Au’s references to the third applicant’s “good training potential” in her report tend to suggest that future training services may be needed or envisaged. The statements made by Dr Au in her conclusion do not gainsay that proposition.
That opinion was not contrary to the opinion of Dr Au because Dr Au did not pass an opinion on what a hypothetical person in Australia might require by way of health care and or community services. More specifically, Dr Au’s report considered whether community care or services would likely be required for the third applicant having regard to his personal circumstances including his family circumstances rather than whether a hypothetical person in Australia with the same form and level of condition as the third applicant would likely require health care or community services.
The MOC then passed the critical opinion:
Provision of these health care and/or community services would be likely to result in a significant cost to the Australian community in the areas of health care and/or community services.
It was that opinion that meant that the applicants could not meet PIC 4005(1)(c).
In my view, the MOC’s opinion was not affected by error as the applicants contend. These grounds do not identify jurisdictional error.
Contention 2 – Whether MOC erred in assessing the third applicant for a period of ‘permanent stay’
The second contention raised by the applicants was that the MOC erred in his or her interpretation of PIC 4005(1)(c). The applicants contend that the third applicant was assessed against the PIC 4005(1) criteria for the period of a permanent stay in Australia. Indeed, the opinion of the MOC says so in those terms. The applicants argue however, that because the visa class for which they were applying was temporary, it was wrong to assess the PIC 4005(1) criteria in that way.
Public Interest Criteria 4005(1) relevantly provides:
(2) For subparagraph (1)(c)(i), the period is:
(a) for an application for a permanent visa--the period commencing when the application is made; or
(b) for an application for a temporary visa:
(i) the period for which the Minister intends to grant the visa; or
(ii) if the visa is of a subclass specified by the Minister in an instrument in writing for this subparagraph--the period commencing when the application is made.
There is no dispute that the Subclass 188 visa, for which the applicants applied, was of a subclass that was specified by the Minister for the purposes of PIC 4005(2)(b)(ii). Thus, the relevant period was the period commencing when the application is made. The applicants argue that means that the relevant period is the period for which the Minister intends to grant the visa (i.e., the same period specified in PIC 4005(2)(b)(i)). The first respondent argues that it is a period which is the same as that for a permanent visa.
I accept the first respondent’s argument that the period specified by PIC 4005(2)(b)(ii) is referrable to the same period that would be relevant if a permanent visa was under consideration. In those circumstances, it is argued that the MOC made no error in the way in which he or she approached the task at hand.
The first respondent identified three reasons why that construction ought to be adopted. The first two are self-evident:
28. First, the phrase “the period commencing when the application is made” is a phrase also used in PIC 4005(2)(a) (which uses such a phrase in the context of applications for permanent visas).
29. Second, if the period of assessment was meant to be commensurate with the duration of the temporary visa, it is anomalous for PIC 4005(2)(b)(i) and (ii) to express two different time periods.
The third draws upon the “evident intention” behind PIC 4005(2)(b)(ii) which was said to allow for the Minister to require the health criterion to be assessed against a permanent stay time period in appropriate cases. For example, cases involving temporary visa applications of a type that provides a pathway to the grant of a permanent visa assessment would be assessed against a permanent stay.
The first respondent directed me to the Migration Legislation Amendment Regulations 2011 (No 1) (Cth) Explanatory Statement to assist to resolve any latent ambiguity there might be in the phrase used in PIC 4005(2)(b)(ii) (my emphasis added):
New paragraph 4005(2)(b)
New paragraph 4005(2)(b) contains new subparagraphs 4005(2)(b)(i) and (ii).
New subparagraph 4005(2)(b)(i) provides that for new subparagraph 4005(1)(c)(i), if an application is for a temporary visa, then the period is the period for which the Minister intends to grant the visa.
The effect of this new subparagraph, in conjunction with new paragraph 4005(1)(c) inserted by item [4] of this Schedule, is that if an application is for a temporary visa, then the applicant’s health will be assessed for the period that the Minister intends to grant the visa for.
New subparagraph 4005(2)(b)(ii) provides that for new subparagraph 4005(1)(c)(i), if an application is for a temporary visa of a subclass specified by the Minister in an instrument in writing for the purpose of new subparagraph 4005(2)(b)(ii), then the period is the period commencing when the application is made. It is intended that the instrument would specify temporary visas that may lead to a permanent visa. An example of a temporary visa subclass that may be included is the Subclass 820 (Partner) visa, the grant of which may lead to the grant of a Subclass 801 (Partner) visa, which is a permanent visa.
The effect of this new subparagraph, in conjunction with new paragraph 4005(1)(c) inserted by item [4] of this Schedule, is that if an application is for a temporary visa of a subclass specified in the instrument for the purpose of new subparagraph 4005(2)(b)(ii), then the applicant’s health will be assessed for the same period for which a permanent visa is assessed, that is, a period commencing when the application is made.
In the case of the applicants’ subclass 188 visa application as was described in the Explanatory Statement to IMMI 12/025 (my emphasis added):
4. The purpose of the Instrument is to specify the relevant health requirements for temporary visas that form a pathway to potentially obtaining a permanent visa. The Instrument has been made to include visa subclass 188 and visa subclass 489 visas in the list of current visa subclasses for the purpose of subparagraphs 4005(2)(b)(ii), 4006A(1A)(b)(ii) and 4007(1A)(b)(ii). Visa subclasses 160, 161, 162, 163, 164, 165 and 475 have been moved to the list of former visa subclasses to reflect their new condition as inoperative subclasses.
5. The effect of the Instrument is that if an application is for a temporary visa of a subclass specified in the Instrument then the applicant’s health would be assessed for the same period for which a permanent visa is assessed, that is, the period commencing when the application is made.
These are powerful indicators which, when taken with the first two matters identified above persuade me that, in the case of an application for a temporary visa of the Subclass 188, an applicant may be assessed by the MOC on the basis of a period of permanent stay.
Accordingly, there was no error in the MOC’s assessment. These grounds do not reveal jurisdictional error.
Ground 5 – Improper Exercise of Power
Ground 5 is in the following terms:
5. Further and/or in the alternative the decision of the first and/or the opinion of the second respondent was an improper exercise of power.
By this ground, the applicants argue that:
42. It also follows from the above analysis that there is no evidence that the MOC gave a “proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any policy”. (see Sabrina Khan and Ors v Minister For Immigration and Ethnic Affairs G.159 Of 1987), and He v Minister for Immigration and Border Protection [2017] FCAFC 206).
This ground appears to be predicated upon the success of the earlier grounds. It seems that because those arguments do not succeed, neither can this ground.
To the extent that the applicants suggest that the MOC did not bring an active intellectual process to the formation of the opinion the MOC was required to form, the argument cannot be made out. The MOC is not required to give reasons. In those circumstances where the MOC had no obligation to give reasons outlining what matters he or she considered, a mere non-reference to a matter cannot be used to draw an inference that such a matter was not considered. The MOC reasons do not suggest that proper, genuine and realistic consideration was given to all of the material before the MOC.
This ground does not reveal jurisdictional error.
Ground 7 – Unreasonableness
Ground 7 is in the following terms:
a)In the absence of a sufficient or proper pathway of reasoning the opinion of the [MOC] and therefore the decision of the… respondent lacks an evident and intelligible justification and therefore was unreasonable and/or was otherwise unreasonable.
In support of this ground, the applicant directed my attention to Minister for Immigration and Citizenship v Li (2013) 297 ALR 225, in which it was stated by the plurality at [76] that:
Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.
The submissions made by the applicants in support of this ground are:
52. The MOC opinion falls into that category hence so does the decision of the delegate. The factual basis for this submission is set out above.
53. As stated above the grounds overlap and to some extent coalesce.
I do not accept that submission.
Unreasonableness may be present in the exercise of a power, if it is determined that the decision lacked an evident and intelligible justification due to the reasoning maintaining it being insufficient or improper: Minister for Immigration and Citizenship v Li at [29], [63] and [88]; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 at [43]. The applicants contend that the MOC opinion was legally unreasonable and by reason of that fact, unlawful. That unlawfulness, they argue, infected the delegate’s decision.
I accept the argument of the applicants that, if the opinion that maintained the decision was flawed for legal unreasonableness, then the delegate’s decision would be infected by that unlawfulness. But that is not the case here.
The relevant opinion is the third opinion of the MOC. In that opinion the MOC noted that, “a hypothetical person with this disease or condition, at the same severity as the applicant” would be likely to meet the medical criteria for the provision of a community service: Regulations Schedule 4 cl.4005(1)(c)(i)(B). The MOC was also of the opinion that the provision of this service to the hypothetical person would be likely to result in “a significant cost to the Australian community in the areas of health care and community services” (emphasis added). These services that would be required by the hypothetical person, the MOC opined, relevantly included but was not limited to “Special Education Services” (community services) and “State Disability Services” (health care services). The third opinion also details what information was taken into account. I have set that out above.
I reject the submission that the reasoning as provided by the MOC is legally unreasonable as explained in Minister for Immigration and Citizenship v Li.
As to whether the decision of the delegate of the first respondent was otherwise unreasonable, it is clear that the first respondent was compelled under reg.2.25A of the Regulations to “take the opinion of the [MOC] to be correct.” In taking that opinion to be correct the first respondent acted in accordance with the legislation. There was no discretionary power exercised by the first respondent. The decision was not made arbitrarily.
This ground does not reveal jurisdictional error.
Conclusion
The application for review does not reveal any jurisdictional error. It must be dismissed with costs, including the costs thrown away by the adjournment of the hearing on 11 May, 2018.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Jarrett.
Date: 29 November, 2018
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