Desai v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 876

(a) an Overseas Student Confirmation-of-Enrolment ("COE") for a Master of Finance and Banking (noting course dates of 25 February 2019 to 31 December 2020) (CB 255);

(b) COEs for a Master of Nursing (Graduate Entry) (noting course dates of 24 February 2020 to 31 December 2021 and 20 February 2023 to 31 December 2023 (CB 256-257);

(c) a confirmation of enrolment (as at 26 September 2019) in a Health Science Preparation unit (CB 258);

(d) academic records and a letter from ECU indicating that the applicant required 60 credit points to complete her Master of Nursing course (CB 266-270);

(e) pathology reports (CB 271-273); and

(f) a letter from Fresenius Kidney Care dated 3 April 2024 regarding the applicant's peritoneal dialysis program (CB 274).

1. On 5 April 2024, the applicant appeared at a hearing before the Tribunal to give evidence and present arguments (CB 276-279). She was assisted at that hearing by her second representative (CB 276).
2. On 8 April 2024, the Tribunal wrote to the applicant (via email and through her second representative) to provide her with another opportunity to obtain a further opinion from a MOC, indicating that such a report could be arranged if requested (CB 280-286).
3. On 18 April 2024, the applicant's second representative advised the Tribunal that the applicant wished to obtain a further opinion from a MOC and attached confirmation of payment for the same, together with a signed authority from the applicant (CB 298-301).
4. On 29 April 2024, a MOC again assessed the applicant as failing to satisfy PIC 4005 in Schedule 4 of the Regulations for a proposed onshore stay period of five years (the "sixth MOC opinion") (CB 322-327). The MOC noted that the applicant required "regular renal replacement therapy" and would likely require "medical services" and "dialysis". The MOC also stated that providing those health care services to the applicant would be likely to result in a significant cost to the Australian community of approximately $471,120 and prejudice the access of an Australian citizen or permanent resident to health care (CB 323).
5. On 8 May 2024, the Tribunal invited the applicant (via email and through her second representative) to comment on or respond to information (pursuant to s 359A of the Act) (the "s 359A letter") and provided the applicant with a copy of the sixth MOC opinion (CB 318-327). In particular, the s 359A letter stated (CB 320):

In conducting its review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

Please note, however, that we have not made up our mind about the information.

The particulars of the information are:

• On 29 April 2024, an opinion from a Medical Officer of the Commonwealth (MOC) that Ms Nikitaben Ranchhodbhai Desai does not meet public interest criterion 4005(1)(c)(ii)(A) and 4005(1)(c)(ii)(B). A copy of the opinion is attached.

This information is relevant to the review because a criterion for the visa (clause 500.217 in Schedule 2 to the Migration Regulations 1994) requires that Ms Nikitaben Ranchhodbhai Desai meets public interest criterion 4005 (PIC 4005). If this criterion is not met, the visa cannot be granted and we must affirm the decision under review.

A copy of PIC 4005 and regulation 2.25A, which states that we must take an opinion of the Medical Officer of the Commonwealth to be correct, is attached.

You are invited to give comments on or respond to the above information in writing.

Your comments or response should be received by 22 May 2024. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.

1. On 21 May 2024, the applicant's second representative provided a response to the s 359A letter (via email) and provided supporting documents with that response (CB 328-336). Relevantly, the applicant's second representative told the Tribunal that (CB 328):

This email is regarding the comments on the MOC opinions. The applicant's health policy and her invoices of her treatments are as attached. The cost is average $3000 per month. which is lesser than MOC calculated in MOC opinion. And it is covered by her insurance policy as per attachments.

I hope this information will assist you to proceed further. If you should require any further information in regard to this, please do not hesitate to contact me.

1. On 6 August 2024, the Tribunal affirmed the delegate's decision refusing to grant the applicant the visa (CB 343-346).
2. On 9 September 2024, the applicant sought judicial review of the Tribunal's decision in this Court (CB 1-7). That judicial review application was accompanied by an affidavit (affirmed and filed by the applicant on 9 September 2024) (CB 8-12). That affidavit annexed a copy of the Tribunal's decision and associated notification letters and fact sheet.

1. The application for judicial review was brought pursuant to s 476 of the Act. To succeed before this Court, the applicant must show that the Tribunal fell into jurisdictional error. It is thus useful to outline the Tribunal's decision in some detail.
2. The Tribunal's decision is four pages long and spans 18 paragraphs (CB 343-346).
3. The Tribunal began by explaining that the applicant had applied for the visa on 23 February 2021 and that a delegate of the Minister had refused to grant the applicant the visa on 11 May 2023. The Tribunal further explained that the visa had been refused on the basis that the applicant did not satisfy cl 500.217 in Schedule 2 of the Regulations because the health criterion in PIC 4005 in Schedule 4 of the Regulations had not been met (at [1]-[4]).
4. The Tribunal identified that the issue before it was whether the applicant met PIC 4005 in Schedule 4 of the Regulations (as required by cl 500.217 in Schedule 2 of the Regulations) and thus could be granted the visa. The Tribunal explained the requirements contained in PIC 4005 in Schedule 4 of the Regulations and confirmed that a MOC opinion was required in the applicant's circumstances. The Tribunal further explained that it was required to take the MOC opinion as correct (provided it was satisfied that the MOC had applied the correct test in forming that opinion: Robinson v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1626 ("Robinson") and Ramlu v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1735) (at [5]-[10]).
5. The Tribunal noted that it had allowed the applicant an opportunity to obtain a review opinion from a MOC and that that opinion was provided on 29 April 2024, concluding that the applicant did "not meet the health requirement prescribed under [PIC 4005] for any length of stay". The Tribunal also explained that it had invited the applicant to comment on or respond to the review opinion provided by the MOC (pursuant to s 359A of the Act) and confirmed that the applicant had provided a response on 21 May 2024. The Tribunal noted that that response essentially claimed that the "actual costs of [the applicant's] treatment were less than estimated" in the MOC's review opinion (at [11]-[14]).
6. The Tribunal confirmed that the applicant had twice been assessed by a MOC to determine whether she met the health requirement and both opinions identified the medical condition to which the PIC had been applied and the level of the applicant's condition suffered. The Tribunal was satisfied that both MOC opinions were valid and that the Tribunal was required to take them as correct. Accordingly, based on the opinions of the MOC, the Tribunal found that the applicant did not satisfy PIC 4005 in Schedule 4 of the Regulations (at [15]-[17]).
7. The Tribunal ultimately affirmed the delegate's decision refusing to grant the applicant the visa (at [18]).

1. The application for judicial review (filed by the applicant on 9 September 2024) contains two "grounds of review", as follows (without alteration) (CB 4):
   1. I AM NOT SATISFIED WITH THE DECISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL.
   2. I BELIEVE THAT ALL MY CIRCUMSTANCES WERE NOT CONSIDERED BY THE ADMINISTRATIVE APPEALS TRIBUNAL.
2. The applicant also filed an affidavit in support of that judicial review application (affirmed and filed on 9 September 2024). As outlined above, that affidavit annexed a copy of the Tribunal's decision, associated notification letters and fact sheet.
3. On 6 November 2024, procedural orders were made by Registrar Downing of this Court giving the applicant an opportunity to file an amended application, any additional evidence and written submissions. Unfortunately, no further materials were filed by or on behalf of the applicant.
4. The applicant appeared before this Court (on 8 April 2025) without legal representation. The applicant's mother appeared with her to offer emotional support. Mr Benjamin Tomasi of counsel appeared on behalf of the Minister at that hearing. The Court asked the applicant to confirm that she had received copies of the CB and the Minister's written submissions.
5. The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 9 September 2023 (the affidavit being taken as read and in evidence at the hearing on 8 April 2025), a CB numbering 346 pages (marked as Exhibit 1 at the hearing of this matter), written submissions filed on behalf of the Minister on 25 March 2025, an affidavit of service of Ms Abby Tyagi ("Ms Tyagi") affirmed on 31 March 2025 and filed on 1 April 2025 (taken as read and in evidence at the hearing) and an affidavit of Ms Tyagi affirmed and filed on 7 April 2025 (also taken as read and in evidence at the hearing).
6. Noting that the applicant was unrepresented, the Court gave her the opportunity to explain orally what she thought the Tribunal "did wrong". This is now the standard procedure in this Court following the decisions in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384.
7. To assist the applicant, the Court explained to her that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, it was explained that for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:

(a) where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 ("Craig") at 198;

(b) where the decision-maker ignores relevant material: Craig at 198;

(c) where the decision-maker relies on irrelevant material: Craig at 198;

(d) where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24; (2005) 228 CLR 294 at [207]- [208];

(e) where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and

(f) where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 at [26]- [28]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [44].

1. It was also explained that this Court cannot review the merits of the Tribunal's decision or grant the applicant the visa that she seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 ("Wu Shan Liang") at 272.
2. Against this background, the applicant told the Court that she had told the Tribunal that the cost of her dialysis was not as they had predicted, that the cost was covered by her insurance and that she was not going to the hospital to receive the treatment as it was done at home. She also told the Court that she had completed 10 out of the 12 units required for her nursing degree and that she only needed to complete the remaining two units.
3. The applicant's comments, to the extent that they point to any issue of jurisdictional error on the part of the Tribunal, will be addressed below.

1. It is useful to set out some of the legislative provisions relevant to this matter. The relevant provisions set out below are those that were in effect as at the date of the Tribunal's decision (being as at 6 August 2024).
2. As outlined above, the applicant in this matter applied for a Subclass 500 visa. The eligibility criteria for the grant of that visa are set out in cl 500.2 in Schedule 2 of the Regulations, which relevantly provided as follows:

500.2 Primary criteria

Note: The primary criteria must be satisfied by at least one member of the family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.

All criteria must be satisfied at the time a decision is made on the application.

1. The criteria that the applicant was required to satisfy for the grant of the visa in this case were set out in cll 500.211 to 500.218 in Schedule 2 of the Regulations.
2. Of particular relevance in this matter was cl 500.217 in Schedule 2 of the Regulations, which relevantly provided as follows:

(1) The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4010, 4013, 4014, 4020 and 4021.

...

1. As outlined above, the applicant was found not to have met PIC 4005 in Schedule 4 of the Regulations, which relevantly provided as follows:

(1) The applicant:

(aa) if the applicant is in a class of persons specified by the Minister in an instrument in writing for this paragraph:

(i) must undertake any medical assessment specified in the instrument; and

(ii) must be assessed by the person specified in the instrument;

unless a Medical Officer of the Commonwealth decides otherwise; and

(ab) must comply with any request by a Medical Officer of the Commonwealth to undertake a medical assessment; and

(a) is free from tuberculosis; and

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

(c) is free from a disease or condition in relation to which:

(i) a person who has it would be likely to:

(A) require health care or community services; or

(B) meet the medical criteria for the provision of a community service;

during the period described in subclause (2); and

(ii) the provision of the health care or community services would be likely to:

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

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

regardless of whether the health care or community services will actually be used in connection with the applicant; and

(d) if the applicant is a person from whom a Medical Officer of the Commonwealth has requested a signed undertaking to present himself or herself to a health authority in the State or Territory of intended residence in Australia for a follow‑up medical assessment - has provided the undertaking.

(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

(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.

(a) the applicant applies for a temporary visa; and

(b) the subclass being applied for is not specified by the Minister in an instrument in writing made for subparagraph (2)(b)(ii);

the reference in sub‑subparagraph (1)(c)(ii)(A) to health care and community services does not include the health care and community services specified by the Minister in an instrument in writing made for this subclause.

1. Regulation 2.25A of the Regulations required that the Minister (or, in this case, the Tribunal) seek the opinion of a MOC in relation to whether an applicant satisfied certain criteria for the grant of the visa (including PIC 4005 in Schedule 4 of the Regulations) and relevantly provided as follows:

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 unless:

(a) the application is for a temporary visa and there is no information known to Immigration (either through the application or otherwise) to the effect that the person may not meet any of those requirements; or

(b) the application is for a permanent visa that is made from a country (whether Australia or a foreign country) specified in a legislative instrument made by the Minister for the purposes of this paragraph and there is no information known to Immigration (either through the application or otherwise) to the effect that the person may not meet any of those requirements.

Note: For foreign country, see section 2B of the Acts Interpretation Act 1901.

...

(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.

1. Regulation 1.03 of the Regulations included the following relevant definition:

Medical Officer of the Commonwealth means a medical practitioner appointed by the Minister in writing under regulation 1.16AA to be a Medical Officer of the Commonwealth for the purposes of these Regulations.

1. Regulation 1.16AA of the Regulations relevantly provided as follows:

1.16AA 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.

1. As outlined above, ground one provided as follows:
   1. I AM NOT SATISFIED WITH THE DECISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL.
2. By ground one, the applicant simply expressed disagreement and dissatisfaction with, or otherwise sought impermissible merits review of, the Tribunal's decision: Wu Shan Liang and NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]).
3. No jurisdictional error arises in this regard.

1. Ground two states:
   1. I BELIEVE THAT ALL MY CIRCUMSTANCES WERE NOT CONSIDERED BY THE ADMINISTRATIVE APPEALS TRIBUNAL.
2. By ground two, the applicant claimed that her personal circumstances were not considered by the Tribunal. The applicant echoed those concerns in oral submissions before this Court. As outlined above, the applicant told the Court that she had explained to the Tribunal that the cost of her dialysis was not as they had predicted, that the cost was covered by her insurance and that she was not going to the hospital to receive that treatment as it was done at home. The Court assumes that this is the information that the applicant is referencing as "not being considered by the Tribunal".
3. The Court notes that the Tribunal expressly referenced this information in its written reasons. In particular, the Tribunal confirmed that it had put the information from the sixth MOC opinion to the applicant (and provided a copy of that sixth MOC opinion to the applicant) pursuant to s 359A of the Act. The Tribunal also confirmed that it had received a response from the applicant, summarising its contents.
4. Relevantly, the Tribunal stated as follows:
   1. At a hearing on 5 April 2024 the Tribunal allowed the applicant the opportunity to obtain a review opinion of a Medical Officer of the Commonwealth (RMOC).

12. The RMOC opinion was provided on 29 April 2024 and concluded that:

...the applicant does not meet the health requirement prescribed under the Public Interest Criterion 4005 for any length of stay for current temporary 500 student visa application.

1. On 8 May 2024, in accordance with the provisions of s 359A of the Act, the Tribunal wrote to the applicant inviting her to comment on or respond in writing to information which the Tribunal considered would, subject to her comments or response, be the reason, or a part of the reason, for affirming the decision under review. The Tribunal stated it had not made up its mind about the information. The invitation identified the RMOC opinion as the relevant information, attached a copy of the RMOC opinion, and stated:

This information is relevant to the review because a criterion for the visa (clause 500.217 in Schedule 2 to the Migration Regulations 1994) requires that Ms Nikitaben Ranchhodbhai Desai meets public interest criterion 4005 (PIC 4005). If this criterion is not met, the visa cannot be granted and we must affirm the decision under review.

1. The applicant provided her comments by email dated 21 May 2024 submitting, in essence, that the actual costs of her treatment were less than that estimated by the RMOC.

1. As can be seen from the paragraphs above, the Tribunal was clearly aware of the evidence put forward by the applicant regarding the actual costs of her treatment.
2. As outlined above, reg 2.25A(3) of the Regulations required that the Tribunal take the opinion of the MOC to be correct for the purposes of deciding whether the applicant met PIC 4005. However, the Court notes comments from the Federal Court in Minister for Immigration & Multicultural Affairs v Seligman [1999] FCA 117 ("Seligman") as follows (emphasis added):
   1. It is not necessary for the purposes of this case to characterise consideration of the Medical Officer's opinion as a review of that opinion. Nor is it necessary to characterise that consideration as going behind the opinion. 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.
3. As can be seen from the extract above, the Tribunal was thus only required to take the MOC opinion as correct if the Tribunal was satisfied that the opinion was authorised by the Regulations - that is, if the opinion was validly made.
4. The Tribunal was satisfied and stated as much in its decision, as follows:
   1. The applicant has been twice assessed by a Medical Officer of the Commonwealth as to whether she meets the health requirement. Both opinions identified the medical condition to which the public interest criterion has been applied and the form or level of the condition suffered. The MOC opinions applied the statutory criteria by reference to a hypothetical person as specified. The Tribunal is satisfied that each MOC opinion is a valid opinion, and it must take them as correct.
5. The Court has also considered for itself whether the sixth MOC opinion was valid, following the guidance contained in Seligman, as follows:
   1. 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.

1. The opinion must be that of the Medical Officer of the Commonwealth who provides it.

2. The subject of the opinion must be "whether a person meets the requirements of the applicable paragraph of Schedule 4".

3. 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.

1. The Court is also guided by the reasoning in Robinson, as follows:
   1. 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.
2. Having regard to the authorities above, the Court has determined that the sixth MOC opinion was valid.
3. As correctly submitted by the Minister (at [35] in written submissions filed in this Court on 25 March 2025), the sixth MOC opinion:

(a) was expressed in the form of an opinion, relevantly containing the title of "Form 884: Opinion of a Review Medical Officer of the Commonwealth" (CB 322) and contained language consistent with that of an opinion (for example, "I consider" and "In preparing this opinion, I have had regard to...") (CB 322-323): Seligman at [48];

(b) stated that the "applicant [did] not meet the health requirement prescribed under the [PIC] 4005" and thus included an opinion on a matter referred to in reg 2.25A(1) of the Regulations (CB 322): Seligman at [48]-[49];

(c) identified the applicant's condition as "severe chronic renal disease" and considered whether a hypothetical person in Australia with the same condition as the applicant (at the same severity) would be likely to require health or community services during the specified period (and detailed the services that such a hypothetical person would likely require) (CB 322): Robinson at [43] and Seligman at [48]-[49];

(d) opined that the provision of such services would likely "result in a significant cost to the Australian community ... and prejudice the access of an Australian citizen or permanent resident to health care or community services" (CB 323): Seligman at [48]-[49];

(e) confirmed satisfaction of the relevant requirements at the time of the Tribunal's decision: Seligman at [48]-[49];

(f) stated that information concerning the applicant was considered in forming the opinion, including earlier medical reports and additional information provided by the applicant to the Tribunal: Mai v Minister for Immigration & Anor [2016] FCCA 2901 at [15]; and

(g) included an assessment against the relevant health requirements for a period of five years (being the maximum period provided by the visa subclass): PIC 4005(2)(b)(i) in Schedule 4 of the Regulations.

1. In relation to the period of assessment included in the sixth MOC opinion, the Court notes that temporary visa applications are ordinarily assessed for the maximum stay period allowed under the particular visa subclass, unless an applicant requests a reduced stay period. Whilst some of the previous MOC reports included a reduced period of stay in Australia, the applicant made no such request in relation to the sixth MOC opinion.
2. In circumstances where the sixth MOC opinion was validly made, the Tribunal was required to take that opinion as correct and did so. On that basis, the Tribunal came to the only decision open to it.
3. No jurisdictional error arises in relation to ground two.

1. The application for judicial review and supporting affidavit (filed by the applicant on 9 September 2024) and the applicant's oral submissions to this Court have failed to identify any jurisdictional error on the part of the Tribunal.
2. The Court is otherwise unable to identify any jurisdictional error.
3. The application is, accordingly, dismissed.

I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall.