Han v Minister for Home Affairs

Traill & Ors v Minister for Immigration and Citizenship [2013] FCCA 2 Triandafillidou v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 20; 181 FLR 302 University of Wollongong v Metwally [1985] HCA 28; 60 ALR 68; 59 ALJR 481 VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158; 238 FCR 588

Date of hearing: 13 February 2019

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Counsel for the Appellant: Mr I R Coleman SC and Ms T Baw

Solicitor for the Appellant: ProActive Legal

Counsel for the First Respondent: Ms A Douglas-Baker

Solicitor for the First Respondent: Sparke Helmore Lawyers

Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs

AND: MINISTER FOR HOME AFFAIRS First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE: BROMWICH J DATE OF ORDER: 11 MARCH 2019

1. The appellant be refused leave to rely upon the sole proposed ground of appeal contained in the draft amended notice of appeal annexed to her submissions dated 30 January 2019.
2. The appeal be dismissed.
3. The appellant pay the first respondent's costs as assessed or agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BROMWICH J: 1 This is an appeal from orders made by a judge of the Federal Circuit Court of Australia on 15 August 2018. His Honour dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal made on 6 December 2017 (an earlier decision of the Tribunal of 9 May 2016 having been set aside by consent). The Tribunal had affirmed a 4 March 2015 decision of a delegate of the first respondent, the Minister for Home Affairs, to refuse to grant the appellant, Ms Yuelin Han, a Skilled (Residence) (Class VB) Skilled Independent (Subclass 885) visa. 2 A criterion for the grant of the visa was that Ms Han satisfy public interest criterion 4005 in Schedule 4 of the Migration Regulations 1994 (Cth) (PIC 4005). The Tribunal found that Ms Han did not satisfy a particular aspect of PIC 4005. The part that Ms Han was found not to meet was that she was "free from a disease or condition to which … the provision of the health care or community services would be likely to … result in a significant cost to the Australian community in the areas of health care and community services": cl 4005(1)(c)(ii)(A) of Schedule 4 of the Regulations (health care costs criterion). Despite the reference to both health care services and community services, it is common ground that the only services in question are health care services. Those health care services relevantly included "ongoing specialist medical review and immunosuppressive medication", following Ms Han having a successful liver transplant in 2011. 3 No actual error on the part of the primary judge is now suggested, as opposed to a constructive error in failing to uphold a ground of review that was never advanced before his Honour. The appellant therefore in substance seeks a fresh trial, using this Court's appellate jurisdiction to overcome this Court's lack of original jurisdiction, on a ground of judicial review that could have been taken below. This means of overcoming the statutory exclusion of original jurisdiction for judicial review of this kind principally, if not exclusively, exists as a safeguard to ensure that the interests of justice are protected. That protective purpose must be approached upon a principled basis, to prevent it becoming a mere proxy for the interests of an appellant in obtaining, in substance and reality, a second trial on a different basis.

Leave to rely upon a new proposed ground 4 The unsuccessful ground of judicial review before the primary judge was an assertion that cl 4005(1)(c)(ii)(A) was invalid because the words "significant cost to the Australian community" were incapable of objective ascertainment or calculation. Although constituting the sole ground in the notice of appeal filed in this Court on 3 September 2018, that challenge is not maintained, doubtless because it had no realistic prospect of success in light of compelling prior authority relied upon by his Honour, which does not need to be considered further. Instead, Ms Han seeks leave to rely upon one ground of appeal, set out in a draft amended notice of appeal annexed to her submissions, which was not advanced before the primary judge, namely: The court below erred in failing to find that the second respondent (the Tribunal) constructively failed to exercise jurisdiction because it relied on an opinion of the Medical Officer of the Commonwealth (the MOC) that was not formed in accordance with the law in the following ways: (i) The MOC's opinion was based on a misunderstanding or misapplication of its statutory task; and/or (ii) The MOC failed to give a proper, genuine and realistic consideration to the merits of the case. 5 Ms Han submits that leave should be granted because, relying upon what was said in Singh v Minister for Immigration and Border Protection [2018] FCAFC 52 at [57]. She submits that: (1) the proposed ground has merit; (2) there is no real prejudice to the respondents in permitting it to be agitated; (3) it turns only upon a question of construction or upon a point of law that could not have been met by evidence in the Court below; and (4) it is expedient in the interests of justice to grant leave. 6 The substance of Singh at [57] was a quote from Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73; 250 FCR 510 at [19]-[20], in turn quoting from VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [46]-[48], a case in which leave was refused. VUAX is a much-cited decision summarising and applying the principles arising from authority on the question of leave to advance a new ground for the first time on appeal. VUAX was endorsed more recently in, e.g., Sun v Minister for Immigration and Border Protection [2016] FCAFC 52; 243 FCR 220 at [90]. A number of the cases discussed in VUAX are addressed below. 7 The Minister opposes the grant of leave, relying upon SZLPH v Minister for Immigration and Border Protection [2018] FCAFC 145 at [28]-[29]; AAM15 v Minister for Immigration and Border Protection [2015] FCA 804; 231 FCR 452 at [14] and MZYPO v Minister for Immigration and Citizenship [2013] FCAFC 1 at [68]. The Minister submits, in substance, that a second, entirely different, trial should not be permitted to take place for the first time using this Court's appellate jurisdiction in the circumstances of this case, which include: (1) Ms Han was represented before the primary judge by counsel who advanced extensive submissions of the validity ground and it was expressly conceded that if the validity argument failed, the application for judicial review had to be dismissed; (2) if such leave were to be granted, this Court would have to decide the entirety of the case as if the appeal was a trial; (3) Part 8 of the Migration Act 1958 (Cth) generally operates to provide for one substantive trial in the Federal Circuit Court and for one substantive appeal in this Court; (4) while s 476A of the Migration Act, limiting the jurisdiction of this Court in relation to migration decisions as defined, does not preclude a new review ground being advanced for the first time on appeal, that provision is nonetheless relevant insofar as it removes from this Court original jurisdiction in cases of this kind; (5) the only plausible explanation for the failure to raise the proposed ground below was that a forensic choice was made not to do so, a choice that should not be permitted to be revisited; and (6) there is insufficient merit in the proposed ground. 8 It may be convenient, and in many cases it will be entirely appropriate, to decide the question of whether to grant leave to advance an entirely new proposed ground of review in the form of a ground of appeal by giving dominant, but not exclusive, weight to the merit of the proposed ground. Merit is necessary, but not of itself ordinarily sufficient. Other features will generally need to be absent or present. Possible further considerations for the granting of leave in addition to merit include such things as an acceptable explanation for the ground not being run below, the nature and extent of any injustice (beyond a merely adverse result) that may result if the issue raised is not addressed, and the lack of prejudice to the opposing party. The decision to grant or refuse leave is then made by weighing the competing considerations, which are sometimes finely balanced. 9 The approach of relying predominantly on merit as the basis for leave becomes more problematic when there is no adequate explanation for the ground not having been advanced at the trial in the court below and other circumstances also tell against leave being granted. Care needs to be taken to ensure that a focus on merit does not have the troubling practical effect that a new ground sought to be raised is effectively heard and determined by this Court in the exercise of its appellate jurisdiction as though leave was not required. If that happens, the appellant may get to run an appeal which in truth is a new trial upon nothing more compelling than the fact that it might have succeeded if it had been run below. If the argument in support of the proposed ground finds favour, leave is then granted, and the appeal is allowed. If the argument does not find favour, leave is refused and the appeal dismissed. The grant or refusal of leave then turns on the success or failure of the new ground, making leave a mere formality. If so, an important principle in the administration of justice may be lost in the process. 10 Appeals, even appeals by way of rehearing such as this appeal, are not to be relegated to the role of only providing an opportunity to conduct a second trial upon a different basis, the first trial having failed. Longstanding and much-cited authority of the High Court makes this abundantly clear, supported by related considerations raised by numerous cases in the Full Court of this Court, of which only few will be cited. 11 In University of Wollongong v Metwally (1985) 60 ALR 68 (also reported as University of Wollongong v Metwally (No. 2) (1985) 59 ALJR 481) it was stated by all six justices of the High Court sitting that (60 ALR at 71; 59 ALJR at 483): It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so. 12 The above passage from Metwally was quoted in Coulton v Holcombe (1986) 162 CLR 1 at 8. In Coulton v Holcombe, the following (again, much-cited) observations were made by four justices of the High Court as to the application of the principle to appeals by way of rehearing (at 7): To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. The powers of an appellate court with respect to amendment are ordinarily to be exercised within the general framework of the issues so determined and not otherwise. In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this Court has firmly maintained the principle that the point cannot be taken afterwards… 13 In VUAX, the following pertinent observation was made (at [46]): In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O'Brien v Komesaroff (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]-[24] and [38]. 14 Their Honours in VUAX then quoted a portion of the passage from Coulton v Holcombe reproduced above and said, by particular reference to migration appeals (at [48]): The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. 15 Plainly enough from the above passage in VUAX, merit alone is generally not enough for the grant of leave, and the weaker the point, the greater the need for other aspects to be favourable, such as the explanation for not taking it below and prejudice to the opposing party. The issue of prejudice was not fleshed out in VUAX, and is of greater moment in cases of this kind for reasons that are developed below, related to the scheme of Part 8 of the Migration Act and the practical reality that cases decided in the appellate jurisdiction of this Court will invariably reflect the final resting place for the issues and arguments ventilated. 16 In addition to taking into account merit, the explanation for a point not being raised below and the question of prejudice, it was observed in Murad (at [20]) that "generally speaking, leave is more likely to be granted to permit a fresh issue to be raised on appeal where the new point turns only upon a question of construction or upon a point of law, or where the facts are not in controversy", citing Summers v Repatriation Commission [2015] FCAFC 36; 230 FCR 179 at [94], approved by a five member bench in Haritos v Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315 at [79]. 17 In BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; 161 ALD 441 the Full Court observed on the topic of the scope and purpose of Part 8 of the Migration Act and the effective prejudice to the Minister that results where a point is raised for the first time in a migration appeal, at [28]-[29]: … as Perram J emphasised in AAM15 v Minister for Immigration and Border Protection [2015] FCA 804; (2015) 231 FCR 452 (AAM15)[at [14]]: … Pt 8 of the [Migration Act], which regulates judicial review of refugee determinations, ensures that there is one substantive trial in the Federal Circuit Court followed by one substantive appeal to this Court followed by a more cursory review by the High Court. If this Court, in substance, determines a case at first instance … this structure is thwarted because no appeal lies to the High Court other than by special leave which is rarely granted and then only on the grounds set out in s 35A of the Judiciary Act 1903 (Cth). If the matter is effectively tried in this Court then the appellant is denied a layer of appellate scrutiny. The approach adopted by his Honour in AAM15 is consistent with the fact that, following the advent of special leave to appeal to the High Court, intermediate courts of appeal ought in general to be regarded as the final courts of appeal: Morris v R (1987) 163 CLR 454 at 475 (Dawson J) cited with approval in Smith Kline & French Laboratories (Aust) Ltd v Commonwealth (1991) 173 CLR 194 at 217-218 (the Court). As, by analogy, Kirby J, writing extra-judicially, has observed: The interposition of the Court of Appeal in England produced 'two tier appeals', with a further avenue of appeal to the House of Lords, either by leave of the Court of Appeal or by the Law Lords themselves. However, as Sir Raymond Evershed explained in 1951, '[t]he Court of Appeal is the final court, in fact, for ninety-five per cent of the civil cases.' The same was quickly to prove the case after the creation of the Australian permanent courts of appeal. (Kirby, M, "Judicial Supersession: The Controversial Establishment of the New South Wales Court of Appeal" (2008) 30(2) Sydney Law Review 177) 18 It follows that it may be important to consider whether, irrespective of merit, leave should be refused because the other factors are, individually or collectively, sufficient to exercise the discretion adversely. That will help to ensure that the ends do not justify the means driven by merit alone. The principles in Metwally and in Coulton v Holcombe, and the observations in each of the Full Court decisions cited above, should apply with even greater force and effect when it is not just an argument, issue, or even substantial change in the pleading that is new, but where the very basis upon which the case was brought in the court below has changed. In this case, the change is from a ground of asserted invalidity of a regulation, a purely legal point, to a ground of jurisdictional error, which turns on the facts and circumstances of the particular case at hand and the decision-making process that took place. The latter is a true trial point turning on executive error, rather than an appeal point turning on judicial error (albeit in relation to executive error). 19 Ms Han proffers no acceptable explanation for not having advanced the proposed ground below, it being properly conceded by her that it may be inferred that the decision was based on forensic considerations. Because of that circumstance, and because other factors telling against the grant of leave are also important, this appeal proceeding is an appropriate case in which to consider the question of leave independently of merit, effectively assuming in her favour that the proposed ground has sufficient merit for this purpose (an assumption that is separately visited below for completeness). 20 I consider that, quite apart from merit, the combination of reasons identified by the Minister, and a number of additional reasons, are sufficiently compelling to refuse leave. Those reasons are as follows (not all of which would need to have been present to reach the same conclusion): (1) Ms Han was legally represented before the primary judge by counsel whom it is accepted is experienced and highly capable in the migration field. (2) The primary judge reserved his decision and gave careful reasons for dismissing the application, and the initial ground of appeal in this Court suggesting error on his Honour's part has been (quite properly) abandoned. (3) The primary judge recorded (at [14]) that: (a) it was conceded by Ms Han's trial counsel that the judicial review application had to fail if the judicial review ground advanced of invalidity did not succeed; and (b) counsel also confirmed that he did not contend that the opinion of the MOC, which the Tribunal based its decision upon, was invalid or that the decision of the Tribunal was otherwise affected by jurisdictional error. (4) Allowing the proposed ground to be advanced in this case would subvert the evident design of Part 8 of the Migration Act and in particular the evident purpose of s 476A in precluding this Court having original jurisdiction in a case of this nature. As noted in the passages reproduced above from AAM15, endorsed by the Full Court in BZD17, Part 8 generally operates to provide for one substantive trial in the Federal Circuit Court and for one substantive appeal in this Court, with very limited prospects of going further due to the barriers in obtaining special leave to appeal to the High Court. Special leave to appeal may still be, and often is, refused even when an error is identified in a decision made in the exercise of the appellate jurisdiction of this Court, because, e.g., the case is not considered a suitable vehicle to agitate the point. (5) The appeal on the proposed ground would amount to no more than a de facto trial on an entirely new basis. It would be an appeal in name only as a matter of formal jurisdiction and power. This Court would have to decide the entirety of the case as if the appeal was a trial. This would ordinarily deny the Minister any practical right of appeal if issue is taken with the conclusions reached, a point of prejudice embraced by the Minister at the appeal hearing. It is no answer, as Ms Han suggested, that any lasting problem affecting subsequent cases may be rectified by legislative or regulation amendment. (6) The appellate jurisdiction should only be used for advancing what is, in substance, a trial point that could and should have been run below rather than on appeal in compelling circumstances. Such compelling circumstances are not apparent in this case, beyond Ms Han's personal and entirely understandable desire for a different outcome. (7) The issue sought to be argued by way of the proposed ground of appeal is not novel or special in any discernible way beyond its particular statutory and regulatory context and its own facts and circumstances. It entails no more than commonplace judicial review and jurisdictional error points, asserting a misunderstanding or misapplication of the Tribunal's statutory task via the MOC opinion and asserting a failure to give proper, genuine and realistic consideration to the merits of the case by reason not of what the Tribunal itself did, but by reason of the way in which the binding antecedent medical assessment was expressed. Neither of these issues are likely to have any particular importance beyond the instant case, turning as they do upon the words used in that particular MOC assessment and thus confined to the particular circumstances at hand, together with the application of existing authority. (8) No explanation, let alone any satisfactory explanation, has been proffered for the failure to advance the proposed ground below. A forensic choice had to have been made not to assert invalidity of the MOC opinion or jurisdictional error in light of both being disavowed by counsel appearing before the primary judge. (9) Ms Han has not explained why granting leave is not just expedient in the sense of advancing Ms Han's interests, but expedient in the interests of justice. The possibility of achieving a favourable outcome is only expedient in the first sense, not the necessary second sense. (10) The lack of the need for any evidence to run the proposed ground for the first time on appeal is of little moment in the circumstances of this case. It is in any event a relatively minor consideration by comparison with the foregoing. That is especially so in judicial review cases in which fresh evidence is seldom adduced and even less frequently permitted unless it demonstrates, for example, a latent denial of procedural fairness by reason of factors that could not have been known by the administrative decision-maker. 21 It follows that this is not a case in which the appellate jurisdiction of this Court should be permitted to be deployed. Leave to rely upon the proposed ground of appeal must therefore be refused.

The merits of the proposed ground of appeal 22 For completeness, I separately and further consider the question of merit. This reflects a courtesy to the able substantive arguments advanced by the parties, notwithstanding the views that I have expressed about an appeal not being used to conduct a de facto second trial. 23 The following summary is compiled with the assistance of written submissions for Ms Han. The substance of the issue raised by the proposed ground is whether the opinion of an MOC, made for the purposes of an assessment under cl 4005(1)(c)(ii)(A), was not formed in accordance with the law in a way that went to the exercise of jurisdiction, with the result that the Tribunal fell into jurisdictional error by relying upon that opinion. 24 Ms Han is a Chinese citizen born in 1984, who came to Australia on a Vocational Education and Training Sector (Subclass 572) visa in 2007. After studying and working for two years she applied for permanent residence. On 21 December 2009, she applied for a Skilled Independent (Class VB, subclass 885) visa. To qualify for that subclass of visa she was required to meet cl 885.224 of Schedule 2 of the Regulations (now repealed). This in turn required her to meet PIC 4005, which relevantly provided (emphasis added to highlight the criterion in issue): (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; … 25 In 2011, Ms Han suffered acute liver function failure and underwent emergency liver transplant surgery at the Royal Prince Alfred Hospital in Sydney. The transplant was successful, but the existence of her condition as a transplant recipient triggered the relevance of PIC 4005 to her visa application. 26 On 14 November 2012, the Minister's Department requested further information in relation to her visa application. Ms Han responded by email on 3 December 2012, attaching pathology reports to the effect that she had no evidence of Hepatitis B or C (this is asserted in Ms Han's submissions, rather than being in evidence, but is not apparently disputed by the Minister). On 22 January 2013, an MOC issued a report. The MOC report stated that regard had been had to the report of Dr Simone Strasser dated 26 November 2012. Dr Strasser's report stated that Ms Han had received an emergency liver transplant and that: … she has made an excellent recovery. She suffered no complications and remains with normal liver and renal function in follow up 18 months later. Her only medications are Tacromilus 4mg daily, Prednisone 5mg daily and Aspirin 100mg daily. She will require these medications long term and it is critical that she remain in a situation where those medications are readily available. Her long term prognosis is excellent, and no complications are anticipated. She should have a normal productive life. She requires long term monitoring in the transplant unit. I currently review her 3 monthly. 27 The MOC's opinion, given for the purposes of PIC 4005, was that a hypothetical person with Ms Hans's disease or condition (a stable previous liver transplant), at the same severity, would be likely to require pharmaceuticals and medical services which would be likely to result in a significant cost to the Australian community in health care and/or community services. 28 On 31 January 2013, the Minister's Department issued to Ms Han a further invitation, this time to comment on the report of the MOC dated 22 January 2013. Ms Han replied on 20 February 2013, stating that she was working and studying nursing. Her response attached a further report from Dr Strasser, by then Associate Professor Strasser, dated 15 February 2013, which stated that Ms Han had: … made an excellent recovery and now takes just Tacrolimus 4mg daily and attends a review visit in my transplant clinic every 4 months. She has returned to good health and is fit to work and be a productive member of society. Maintenance of good health does require that she continue to take regular medication and undergo periodic review. 29 On 24 February 2015, another MOC report was obtained, which was also adverse to Ms Han's visa application. This second MOC report said it had regard to the reports of Dr/Professor Strasser dated 15 February 2013 and 9 February 2015. Ms Han's application was rejected by a delegate of the Minister on 4 March 2015 because she failed to meet PIC 4005, specifically subcl (1)(c)(ii)(A). 30 Ms Han applied for merits review of the delegate's decision on 13 March 2015. 31 On 22 February 2016, Ms Han's solicitor wrote to Professor Strasser seeking an update on her current condition. Professor Strasser's opinion in reply, based on treating Ms Han over the five years since the liver transplant, was that Ms Han has a normal liver function and renal function post-transplant, excellent life expectancy and no specific complications related to her transplant, with her only medication being low doses of two immunosuppressants which have registered generics in Australia and both being available as unrestricted items on the Pharmaceutical Benefits Scheme (PBS). Professor Strasser stated that Ms Han had three-monthly routine medical reviews at the Medicare rate and that: … apart from a single episode of mild allograft rejection related to a reduction in her immunosuppressant medication doses, she has remained extremely well, and has been working and studying a nursing degree. She fully recovered from her episode of mild rejection, and will remain on long-term low dose immunosuppression and will undergo periodic medical review. It is anticipated that she will be a healthy, fully-contributing member of Australian society, if provided with the opportunity to remain in Australia. The cost of medical and pharmaceutical services required for the ongoing management of Ms Han are considered relatively low and unlikely to result in a significant cost to the Australian community in the areas of heath care and/or community services. 32 At a Tribunal hearing on 30 March 2016, Ms Han requested another MOC report. The Tribunal gave her time to get that report, at her expense. The further MOC report was issued on 21 April 2016 (final MOC report). The MOC's conclusion was the same as the previous MOC reports, stating: The transplant was undertaken in 2011. The long term prognosis is considered to be excellent. Provision of services to a hypothetical person with the applicant's condition would include ongoing specialist medical review and immunosuppressive medication. This condition is likely to be Permanent. 33 The MOC also stated in that report that it had regard to: [t]he visa medical assessment on 27 January 2015 and reports from Associate Professor Strasser dated 15/02/2013 and 9/02/2015. Also Associate Professor Simone Strasser 27/2/2016. 34 It is convenient to reproduce the entirety of the content of the final MOC report, so that the passages separately quoted above are placed in context (verbatim): The applicant has been assessed against Public Interest Criterion (PIC) 4005 [see attached extract] for the period of a permanent stay in Australia. The applicant does not satisfy sub-subparagraph PIC 4005(1)(c)(ii)(A) in Schedule 4 to the Migration Regulations. The applicant is a 32 year old person with: - Asymptomatic previous liver transplant The transplant was undertaken in 2011. The long term prognosis is considered to be excellent. Provision of services to a hypothetical person with the applicant's condition would include ongoing specialist medical review and immunosuppressive medication. This condition is likely to be Permanent. I consider that a hypothetical person with this disease or condition, at the same severity as the applicant, would be likely to require health care or community services during the period specified above. These services would be likely to include: Medical services Pharmaceuticals 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. In preparing this opinion, I have had regard to the information available to date concerning the applicant, including, but not limited to The visa medical assessment on 27 January 2015 and reports from Associate Professor Strasser dated 15/02/2013 and 9/02/2015. Also Associate professor Simone Strass[e]r 27/2/2016. Medical Officer of the Commonwealth … 35 The first Tribunal decision was set aside by consent and remitted for rehearing. Another Tribunal hearing was held, and Ministerial requests to intervene were refused. 36 On 6 December 2017, the second Tribunal affirmed the delegate's decision. The Tribunal found that Ms Han did not meet cl 885.224 because she did not meet subcl (1)(c)(ii)(A) of PIC 4005. The Tribunal noted that reg 2.25A required it to take the MOC's opinion as being correct. Regulation 2.25A provided at the time (noting in particular reg 2.25A(3)): 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), 4006A(1)(a), 4006A(1)(b), 4006(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. (2) In determining whether an applicant satisfies the criteria for the grant of a Medical Treatment (Visitor) (Class UB) visa, if there is information known to Immigration (either through the application or otherwise) to the effect that the requirement in subclause 602.212(2)(d) has not been met, the Minister must seek the opinion of a Medical Officer of the Commonwealth on whether the requirement has been met. (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. 37 On 15 August 2018, the primary judge dismissed an application for judicial review, rejecting the argument that cl 4005(1)(c)(ii)(A) was invalid because the words "significant cost to the Australian community" were incapable of objective ascertainment or calculation. The reasons for the conclusion as to validity do not require further consideration as they are not challenged in any way in this appeal.

The law on an MOC's opinion 38 In Minister for Immigration and Multicultural Affairs v Seligman (1999) 85 FCR 115, the Full Court was required to consider the position of an applicant for a permanent residency visa who had an adult son who had borderline intellectual functioning. The MOC in that case had issued an opinion that the applicant's son did not meet the health requirement criterion for the grant of the visa. The Full Court said (at [66] and [69], emphasis added): 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. … 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… 39 Seligman was applied by the Full Court in Perez v Minister for Immigration and Border Protection [2017] FCAFC 180, which involved a partner visa. For a person to obtain a partner visa the person must satisfy certain criteria, which includes being the spouse of a person who is a "sponsoring spouse" as defined. This criterion need not be satisfied, however, if the relationship between the person and the sponsoring spouse has ceased and, relevantly, the person "has suffered family violence committed by the sponsoring spouse" under the Regulations. Pursuant to that part of the Regulations, if the Minister is not satisfied that the alleged victim claiming non-judicially determined family violence has suffered family violence, the Minister must seek the opinion of an independent expert. The Minister must take the independent expert's opinion to be correct in deciding whether the alleged victim satisfies the criteria for a visa. In Perez, the Tribunal referred to the appellant's claim of non-judicially determined family violence to an independent expert. In that case, the Full Court held at [9] that: … the opinion of the independent expert was based on a misunderstanding of the statutory question. ... A misunderstanding of the statutory task of this kind involves jurisdictional error. As explained in Minister for Immigration and Multicultural Affairs v Seligman [1999] FCA 117; (1999) 85 FCR 115 at [66]-[69], an opinion which a law requires to be formed, is an opinion formed in accordance with law. Where the opinion is not such an opinion, a decision founded upon the opinion is itself not a decision in law. 40 In Blair v Minister for Immigration and Multicultural Affairs [2001] FCA 1014, the following obiter observation was made (at [33]): … Even if the medical and other evidence were (contrary to my view) totally inconsistent with the Opinion, I do not think that would demonstrate "jurisdictional" or other legal error. The Regulations require the respondent to seek the Opinion of a Medical Officer of the Commonwealth. Such Medical Officer must surely be entitled (and in my view is required) to form his or her own opinion, even if it conflicts with the medical evidence submitted on behalf of an applicant. 41 In Robinson v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1626; 148 FCR 182, the terms of PIC 4005 were considered. Siopis J: (1) made a finding in respect to the construction of PIC 4005 (at [43]): … A proper construction of public interest criterion 4005 of the Regulations, requires the MOC to ascertain the form or level of condition suffered by the applicant in question and then to apply the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition. It is not the case that the MOC is to proceed to make the assessment at a higher level of generality by reference to a generic form of the condition. (2) referred to authorities that supported the above construction, including Blair, in which the MOC's report did not refer to having made his assessment by reference to a hypothetical person who suffered from the form of condition. (3) explained (at [54]), after referring to the relevant passage in Blair, that it was not that the MOC in that case was wrong to "personalise" his opinion by reference to the applicant's actual condition, but that in assessing whether the statutory criteria in PIC 4005(c) applied to the applicant: … there was in truth no meaningful distinction between whether this was judged by reference to the applicant's actual condition, or by reference to a hypothetical person having the same condition as the applicant … (4) held that as the Tribunal rejected the construction of PIC 4005 identified at [41(1)] above, and thereby rejected the appropriate test to apply in assessing whether the opinion of the MOC was to be taken as correct, the Tribunal committed jurisdictional error. 42 Robinson was applied by a Federal Circuit Court judge with a similar result. In Traill & Ors v Minister for Immigration and Citizenship [2013] FCCA 2, it was found that the delegate constructively failed to exercise jurisdiction, insofar as the delegate relied on an MOC's report, in circumstances in which that report was unreliable because it failed to properly ascertain the form or level of the condition suffered by the first appellant's husband and proceeded to make an assessment at a higher level of generality by reference to a generic form of an unidentified condition, so that the delegate fell into jurisdictional error.

The asserted errors by the MOC, leading to jurisdictional error by the Tribunal 43 In this case, Ms Han submits that the MOC's opinion was not formed in accordance with law, and therefore the opinion of the Tribunal is not a decision in law, because, she asserts the MOC: (1) misunderstood or misapplied its statutory task; and (2) did not give proper, genuine and realistic consideration to the merits of her case for the grant of the visa.

(1) The MOC misunderstood or misapplied its statutory task 44 Ms Han directs attention to the MOC's final report where it expressly states: Provision of services to a hypothetical person with the applicant's condition would include ongoing specialist medical review and immunosuppressive medication. … 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. … 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. … 45 Ms Han submits that while the MOC referred to a hypothetical person with the applicant's condition, it is difficult to avoid the conclusion that in reality the assessment was not by reference to her actual condition as required, because the conclusion reached is in direct contrast to the opinion of Professor Strasser who has been treating her since the transplant. The medications that Ms Han requires are of low dosages, are listed as Pharmaceutical Benefits System (PBS) items, and have generic equivalents available in Australia. The medical check-ups she requires quarterly will likely extend to 6 monthly and can be taken as a Medicare item at $56.65 per consultation. Accordingly, the evidence supports Professor Strasser's conclusion that: "[t]he cost of medical and pharmaceutical services required for the ongoing management of Ms Han are considered relatively low and unlikely to result in significant cost to the Australian community in the areas of health care and/or community services". 46 Ms Han submits that in the absence of any explanation from the MOC as to the reason for concluding differently to the treating specialist of Ms Han, it seems that the MOC made an assessment only by reference to a person suffering from the disease or condition generally, or at an impermissibly higher level of generality. She submits that according to Blair, and the authorities there cited, the MOC is not to proceed to make the assessment at a higher level of generality. Rather, she submits, the MOC's final report erred because it failed to properly make its assessment based on the form or level of the condition actually suffered by Ms Han. The indications that it failed to do so are asserted in Ms Han's written submissions to be clear in the following two respects: Firstly, the evidence is that "[i]t is anticipated that she will be a healthy, fully-contributing member of Australian society". Ms Han has proven this to be the case to date by her dedication in changing careers. Since her transplant, she had studied and qualified to be a registered nurse and when permitted also undertook work as a nurse assistant whilst completing her nursing degree. However, the MOC's final report is silent on this important aspect. Second, the evidence is that Ms Han's ongoing treatment requirements are so low that the cost of the medication and that medical review poses a relatively insignificant monetary cost on any objective basis. In the absence of any reference to a monetary quantification to justify the opinion that the cost is "significant", the MOC's final report fails to refer to any contrary material upon which it has come to a different conclusion. 47 Ms Han submits that the MOC misunderstood or misapplied its statutory task in making the assessment of whether the PIC 4005 applied to her, and, consequently, the opinion of the Tribunal is not a decision in law and her appeal should be allowed upon this basis.

(2) Failure to give a proper, genuine and realistic consideration to the merits 48 Ms Han relies upon relatively recent authority on the content of the requirement imposed upon an administrative decision-maker to give "proper, genuine and realistic consideration" to the merits of the case to be decided, citing Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 at [46]-[47] and other cases that have applied that principle. The application of that principle in Carrascalao must be approached with some caution, given that it was a visa cancellation case that did not involve highly prescriptive visa criteria, let alone a provision requiring deference to the opinion of a medical expert. Ms Han relies upon: (1) the application of Carrascalao, and the application of Minister for Immigration and Border Protection v Nguyen [2017] FCAFC 149; 254 FCR 522 at the last bullet point of [32], by Griffiths J in Malek Fahd Islamic School Limited v Minister for Education and Training (No. 2) [2017] FCA 1377, again a case that was not dealing with prescriptive criteria of the kind in this case; and (2) the application of Malek in Buadromo v Minister for Immigration and Border Protection [2017] FCA 1592 in respects not affected by being overturned by the Full Court: see Minister for Home Affairs v Buadromo [2018] FCAFC 151; 362 ALR 48; and (3) the application of like principles in NKWF v Minister for Immigration and Border Protection [2018] FCA 409 at [58], [57] and [61]. 49 Ms Han asserts that applying the "proper, genuine and realistic consideration" principle to the reasons that were provided in the MOC's final report gave rise to a requirement to explain why the opinion of the treating specialist, Professor Strasser, should be rejected. She submits that merely stating that he "had regard to" her three reports without any analysis failed to properly disclose the manner in which, and the basis upon which, the opinion had been reached. By way of illustration, rather than binding or even comity authority, Ms Han points to similar finding made by judges of the Federal Circuit Court in the context of PIC 4005: (1) In Traill (at [45]), the Federal Circuit Court judge found that in light of the contrary opinions of two other doctors to that of the MOC, the MOC's report was "uninformative at the most basic level". The MOC report was criticised by his Honour, amongst other things, for expressing no agreement or disagreement with the opinions of the other doctors, and for not making any comment on those opinions whilst reaching a different conclusion. Accordingly, his Honour concluded that the MOC report was so uninformative that it was impossible for the minister's delegate to rely upon it. (2) In Haque & Ors v Minister for Immigration and Anor [2015] FCCA 1765; 298 FLR 375, the Federal Circuit Court judge found (at [52]-[53], emphasis added): The Minister's argument relied upon obiter dicta in a decision by Carr J in Blair v Minister for Immigration & Multicultural Affairs [2001] FCA 1014 at [33]. … [his Honour then quoted the passage from Blair reproduced above at [40]] That passage however does not deal with the present issue. I accept that the RMOC, like the MOC beforehand, was required to form his or her own opinion about whether or not PIC 4005 was satisfied. That is the effect of the Regulations. However, that opinion, like any opinion, in order to be valid in the sense of legally effective, must be based upon material including facts based upon material which are logically probative of that opinion. It must be the case, as the RMOC is exercising statutory power, that he or she is required to act reasonably. That requirement in turn necessitates that there be a logical basis for the opinion. As was the case here, the opinion was based upon a fact for which there was no evidence or any other logical basis, and that opinion was not one formed according to law. That being so, the Tribunal was not bound to accept it and, because it considered that it was bound to accept it, it failed to properly exercise its jurisdiction and thereby fell into jurisdictional error. 50 I will return to Haque in the final consideration of the proposed appeal ground towards the end of these reasons. 51 Ms Han submits that the MOC's final report is "most uninformative, sparse and fails to engage in an active intellectual process with the contrary medical opinions issued consistently over past years and also, the MOC's opinion is unsupported by any logically probative material". She submits that, in relying upon the MOC's opinion, the opinion of the Tribunal is not a decision in law and the appeal should be allowed.

The Minister's response 52 The Minister submits that: (1) the function of an MOC, once he or she has formed an opinion that an applicant has a disease or condition, is to assess objectively whether a hypothetical person with the same disease or condition would be likely to require health care or community services which would likely result in a significant cost to the Australian community. (2) following Seligman at [53], the assessment of significant cost is a matter for medical judgment, which calls for a judgment about the nature of the disease or condition rather than an attempt to relate it to the provision of particular health care or community services; (3) in making the assessment, there is no obligation upon an MOC to consider whether the applicant will actually use the relevant health care or community services: Blair at [44]-[45]; Imad v Minister for Immigration and Multicultural Affairs [2001] FCA 1011 at [14]; Inguanti v Minister for Immigration and Multicultural Affairs [2001] FCA 1046 at [10]-[11]; Robinson at [43]-[56]; (4) following Blair at [38] and [46], as applied in Federal Magistrate's Court/Federal Circuit Court decisions in JP1 & Ors v Minister for Immigration and Citizenship [2008] FMCA 970; 220 FLR 37 at [15] and [32]; Pillay v Minister for Immigration [2009] FMCA 517 at [60] and Triandafillidou v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 20; 181 FLR 302 at [61], nor is there any obligation on an MOC to: (a) give reasons for his or her decision; (b) provide reasons why any expert medical evidence proffered was rejected; or (c) specify the costs that he or she considers to be significant for the purposes of PIC 4005; (5) the phrase "significant costs to the Australian community", bears its ordinary meaning having regard to the context and legislative purpose of PIC 4005; (6) that context and purpose may be discerned as being the protection of the interests of the Australian community by: (a) preserving and prioritising for existing members of the Australian community public medical and community resources; and (b) ensuring that visas to enter and stay in Australia are not issued to individuals who have medical needs which will occasion significant cost to the Australian community, irrespective of the contribution such persons might otherwise make to the public revenue or otherwise; (7) an MOC is not required to specify or otherwise detail the costs of ongoing treatment in making the required judgment and forming the necessary opinion; (8) rather, an MOC is required to: (a) identify the medical condition to which the public interest criterion has been applied (here, an asymptomatic previous liver transplant); (b) identify the form or level of condition (here, permanent, requiring ongoing specialist medical review and immunosuppressive medication); and (c) apply the statutory criterion of "significant cost" by reference to a hypothetical person who suffers from that form or level of the condition; and (9) noting that the issue here is medical services and not community services, PIC 4005, properly construed, required an MOC to take into account: (a) the category of the medical services to be provided (here, medical and pharmaceutical services in the nature of specialist medical review and immunosuppressive medication); (b) the frequency with which they are to be provided (here, ongoing); and (c) the period of time or duration for which those services would likely be required (here, on a permanent basis), and to apply the statutory criteria to those factors, as they apply to a hypothetical person in that position, to determine whether or not providing those medical or community services will constitute "significant cost". 53 With the above framework in mind, which Ms Han does not appear to dispute and may be readily accepted, the Minister paints a very different complexion on the discharge of those obligations by the MOC in this case. The issue is the carrying out of those obligations, in circumstances in which conflicting medical opinions are referenced, but not further elaborated upon. 54 The Minister characterises Ms Han's complaint as being that: (1) given the opinions expressed by Professor Strasser that: [t]he cost of medical and pharmaceutical services required for the ongoing management of [the appellant] are considered relatively low and unlikely to result in a significant cost to the Australian community in the areas of health care and/or community services … (2) to the extent that the MOC formed a different opinion, it is "difficult to avoid the conclusion that in reality the assessment was not by reference to [her] actual condition", because: (a) there was no reference to her attaining nursing qualifications post-transplant surgery; and (b) the opinion was not justified by reference to any "monetary quantification" in light of Professor Strasser's opinion to the contrary. 55 The Minister submits that given that the authority cited above establishes that an MOC is not required to give reasons for his or her ultimate opinion, including reasons for rejecting any expert medical (or indeed other) evidence proffered by a visa applicant, and that an MOC is not required to specify the costs he or she considers to be significant, the asserted sparseness of the expression of the opinion as a basis for concluding that the MOC failed to engage in an active intellectual process with the contrary medical opinions was not enough. 56 The Minister submits that a contrary conclusion is supported by a careful reading of the MOC opinion because it discloses that: (1) the MOC identified the medical condition at a significant level of specificity (asymptomatic previous liver transplant); (2) the MOC identified the form or level of condition (permanent, requiring ongoing specialist medical review and immunosuppressive medication); (3) the MOC acknowledged that the appellant's long-term prognosis was "excellent", but concluded that having regard to the services likely to be required (medical services and pharmaceuticals), the provision of those services would likely result in significant cost to the Australian community in the relevant areas. 57 The Minister submits that the mere fact that the MOC formed a different opinion on the ultimate issue to that of Professor Strasser did not disclose that the MOC did not form the necessary opinion according to law.

Consideration 58 The substance of the issue that the proposed ground of appeal raises for determination was conveniently stated in an overall sense by Judge Smith in Haque, when his Honour was still sitting on the Federal Circuit Court (prior to being appointed to the District Court of New South Wales). His Honour said (by way of introduction at [1]): Ordinarily, in determining whether or not to grant a visa, the Minister must determine whether he or she is satisfied that the visa applicant has satisfied the criteria for the grant of that visa. The same requirement is imposed on the second respondent (Tribunal) when reviewing a decision to refuse to grant a visa. However, there are certain subclasses of visa the criteria for which require the decision-maker not to form his or her own opinion of a particular matter, but rather, to take the opinion of a third party to be correct. In those circumstances, the decision-maker is only required to accept as correct an opinion that is properly formed and on the condition that the visa applicant has had the opportunity to address the question of whether the opinion meets that description. 59 In Haque, the identified errors, rising to the level of being jurisdictional errors, were confusion between two opinions on the part of the Tribunal, a significant mistake of fact in the second opinion, and a refusal to give the visa applicant time within which to address that second opinion because it misunderstood the nature of the mistake being complained about. It was not confined to questions of expression, or adequacy of reasons in addressing conflicting evidence. It went in a foundational way to the required assessment of cost based upon a hypothetical person requiring treatment for a like condition, because the nature of that condition was incorrectly described, tainting the necessary hypothetical assessment in a jurisdictional way because, in effect, the wrong question was being asked. The nature of the error in Haque thus went beyond the nature of the error asserted by Ms Han. Ms Han seeks to draw adverse and non-beneficial inferences from what was not said in favour of reaching a different factual conclusion. Properly understood, Ms Han is in truth asserting error on the merits, not error in the performance of the jurisdictional task. 60 Put another way, the errors in Haque were overt and went to the identification of the form and level of the condition against which the cost assessment was required to be made, on a hypothetical basis. The wrong benchmark was being deployed due to that error, such that the jurisdictional task could not be performed. There was no evidence, not merely conflicting evidence, that, as stated by the MOC, the autistic child in question needing medical and community services was "totally dependent in all of her activities of daily living". In fact, there was clear evidence to the contrary. Before turning to the passages already quoted above at [49(2)], which are relied upon by Ms Han, Judge Smith stated (at [51]): I accept that medical opinion such as that of the RMOC should not be read in a nitpicking way. However, even though a document such as the RMOC opinion should be given a beneficial reading, that does not mean that the Court has power to rewrite it so that it accords with the evidence that was before the RMOC. To do so, would be overstepping the boundaries placed upon the power of the Court upon judicial review. On that approach, even though this opinion is expressed briefly, it is set out in plain terms and there is no room to find that the phrase in question means anything other than what it actually says. Thus, in my view, the RMOC gave an opinion based upon the fact that the second applicant was totally dependent in all her activities of daily living and that fact was, quite simply, wrong on any view of the material. The question then, is whether this means that there was any jurisdictional error in the Tribunal's decision. 61 Thus, Haque does not afford Ms Han the support that it might, absent this critical context. To the contrary, it provides a compelling illustration of the sorts of defects that are required to be established to find that an MOC report has the quality of deficiency necessary to give rise to a jurisdictional error on the part of the Tribunal in accepting it as otherwise required. Haque forcefully points to the nature of the error identified in Robinson and found to be absent in Blair. It is not to the point that Professor Strasser's reports supported a different conclusion and thus could have led to a different result. That was a matter for the MOC. 62 Ms Han's complaint does not go to the three subjective determinations required to be made, identified at [52(9)] above as to: (1) the category of the medical services to be provided; (2) the frequency with which they are to be provided; and (3) the period of time or duration for which those services would likely be required, but rather to the application of the statutory criteria to those factors to a hypothetical person, to determine the question of "significant cost". 63 Ms Han's argument exposes the pitfalls in seeking to require, as a matter going to jurisdiction, the MOC to apply the information in Professor Strasser's reports as to her actual position, and in particular her actual costs at present and projected into the future, to the required hypothetical assessment. The question of "significant cost" that is required to be assessed is not those in fact being incurred or likely to be incurred by Ms Han, even if that information might in some way assist in the hypothetical assessment, with it being entirely a matter for the MOC as to how such information is brought to bear for that purpose. To require the MOC to have regard to that actual information in some particular way not only encroaches on the assessment task in the nature of impermissible merits review, but is, in substance, to make it a predictive exercise in relation to Ms Han's specific circumstances, of a kind that has clearly been eschewed by Parliament in favour of the hypothetical. 64 In circumstances in which the necessary steps prior to the evaluative assessment and conclusion required were neither absent nor deficient, Ms Han's challenge does not rise higher than impermissible merits review. 65 It follows that had leave been granted to rely upon the proposed ground of appeal, that ground would have failed on the merits. That point was not in fact reached, and these observations would be mere obiter, save for the fact that they provide an additional reason as to why leave should not be granted. I therefore take that conclusion into account in confirming that leave should be refused.

Conclusion 66 Leave to rely upon the sole ground of appeal sought to be advanced must be refused. The appeal must therefore be dismissed. There is no reason why Ms Han should not pay the Minister's costs. I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich.