Minister for Immigration & Multicultural Affairs v Seligman

Federal Court of Australia|1999-03-01|Before: Foster J, Merkel JJ

THE COURT Introduction 1 Norman Seligman is a successful South African businessman, a Senior Executive of the IBM South Africa Group. He wishes to migrate to Australia with his family. His wife is a primary school teacher. Both are university graduates. On all points, save one, they appear to qualify for the issue of a Senior Executive Visa under the Migration Act 1958 (Cth). The point on which they are said not to qualify is that their 22 year old son has borderline intellectual functioning. He is described in reports as mature, articulate and friendly, with growing confidence in his abilities and a good sense of humour. He requires a structured and supportive working environment to reach his optimal level. He has a Certificate in Personal computer and General Office Skills and a determination to succeed. Nevertheless a Medical Officer of the Commonwealth has formed the opinion that his condition is likely to result in a significant cost to the Australian community in the area of health care and community services. This is notwithstanding his father's undertaking to set up a trust fund for his support in Australia and the offer of employment as part of the Community Services provided by the Australian Jewish Welfare Society. 2 Under the relevant regulations the Minister for Immigration and Multicultural Affairs is bound to take as correct the opinion of the Medical Officer of the Commonwealth, including his opinion as to the likelihood of significant cost to the Australian community. 3 Mr Seligman challenged the decision of the Minister's delegate refusing the issue of a visa before Foster J. Foster J allowed the application and directed that the matter be remitted to the Minister for further consideration in accordance with the Court's reasons for decision. 4 The Minister now appeals against that decision. The appeal raises questions about the jurisdiction of the court to review the opinion of the Medical Officer of the Commonwealth and the application of the relevant regulations under the Migration Act.

Factual Background 5 Norman Seligman is a 49 year old citizen of South Africa. He is married and he and his wife, Paula, have two children, Gregory and Gina, both of whom are over 18 but both of whom are still dependent on their parents. Gregory was born on 16 June 1974 and Gina on 13 October 1976. They both live at home. 6 Mr Seligman is the General Manager of IBM Director, an operation of IBM South Africa, a position he has held since 1994. It is a senior management position in IBM South Africa. Prior to his present appointment he occupied other senior management positions in the IBM Group. He has a Bachelors Degree in Commerce with Honours from Rhodes University. His wife, a graduate in arts from the University of South Africa, is a primary school teacher in Johannesburg. 7 On 14 May 1996 Mr Seligman applied to the Principal Migration Officer at the Australian High Commission in Pretoria for a visa so that he and his family could migrate to Australia. The visa for which he applied was a Business Skills (Migrant), Class AD, Subclass 128 (Senior Executive) Visa. It was his intention, if allowed to migrate to Australia, to buy into an existing IBM business or start his own business in the computer industry. 8 In a letter from a firm of migration consultants attaching the application it was pointed out that the Seligmans' son, Gregory, suffers a "mild intellectual disability requiring some support in the area of employment and social interaction". Mr Seligman, it was said, had established a trust fund to support Gregory and was ready to do so in Australia to eliminate the possibility of dependence by Gregory upon the Australian community. 9 A medical examination of Gregory was carried out on 26 July 1996 by Doctor L. Picker. The report of that examination made brief reference to "mental retardation" and to specialist reports to be submitted. Mr Seligman also submitted a detailed assessment by a clinical psychologist, Andrew Davies, and a letter from a paediatrician who had known and treated Gregory from birth. 10 The psychological report based on an assessment on 2 August 1996 referred to an earlier assessment in 1994 which had indicated that Gregory was then functioning within the Borderline Range of Intellectual Functioning on standardised Intelligence Quotient measures. That report, which was consistent with earlier assessments, had concluded that he was trainable and capable of acquiring the skills requisite in his chosen work area. He was found to be delayed in his social and emotional development and it was recommended that attention be paid to "life skills training" in order to maximise his social and occupational potential. The report made reference to a number of tests which had been applied to Gregory in 1994 and then went on: "When reassessed in 1996, it was clearly evident that Gregory had developed markedly in terms of his overt presentation. He has grown in physical stature and no longer appears immature for his chronological age. His speech has improved and he is able to articulate without encouragement. He has maintained his pleasant and friendly nature and, again, displayed no evidence of inappropriate behaviour. He appeared more confident in his abilities and demonstrated a good sense of humour. He still requires structure and encouragement to perform at his optimal level." 11 The reassessment showed an emotional/social intelligence behind his level of cognitive functioning. However with parental encouragement and social skills training there appeared to have been a noticeable improvement in his interpersonal relatedness. He had developed a close circle of friends with whom he regularly interacted. The 1994 assessment of his intelligence had shown him in the below average range on verbal tasks and in the borderline range on performance tasks. His overall level of functioning or Full Scale IQ placed him within the borderline range of intelligence (FSIQ = 80). His relatively good general knowledge reflected an intellectual curiosity cultivated in a stimulating environment. He showed excellent immediate auditory recall skills and portrayed an attentiveness to his environment. As his IQ had remained relatively constant over time, standardised IQ testing was not repeated in 1996. However Mr Davies' evaluation was that his IQ remained in the borderline range with the same configuration of cognitive strengths and weaknesses. He said: "There is a plethora of research to suggest that individuals functioning within this range of intelligence may achieve adequate vocational and social adjustment depending on employment opportunities. Although able to occupy unskilled positions, semi-skilled work is possible." 12 The 1994 assessment indicated that the area of computers was one that held Gregory's interest and was congruent with his abilities and limitations. In computer work he had evidenced initiative and motivation and a real willingness to learn. It was also felt that library work might satisfy his interest in language, history, service and clerical work within a structured, predictable and containing environment. He completed courses at Access College for PC and general office skills. Mr Davies' overall conclusion was: "Given appropriate training an employment opportunity and a favourable working environment, it is believed that Gregory is capable of holding down a job and becoming a productive member of society. As regards independent living, it is felt that Gregory remains emotionally immature, but is gradually acquiring the skills and emotional maturity requisite for more autonomous living." 13 A report from Access College dated 8 February 1996 referred to his time as a student from January to December 1995. In that time he completed eleven subjects to achieve a Certificate in PC and General Office Skills. The Executive Director of the College noted that he was confident and outgoing and approached his work with the determination to succeed. He required constant reinforcement to learn new tasks but with sheer determination continued until he passed. She said: "It is our recommendation that Greg needs a very structured environment that offers ongoing supervision. Due to his learning disability, Greg would do very well in a position with a set routine where his strengths are encouraged and enhanced. Greg will require detailed and clear instructions in order for him to carry out a new task as required." 14 The paediatrician's report dated 30 July 1996 stated that Gregory suffered from a degree of cortical dysfunction manifesting as impaired motor function and developmental delay. Associated with that he had an unstable EEG suggestive of a possible seizure pattern. However he had never had a clinical seizure but was being prophylactically medicated with carbamazapine. He was self sufficient, computer literate and did not require any form of constant supervision. The paediatrician concluded: "He will not be a burden on any health or disability scheme or fund." 15 On 17 September 1996 Dr Peter Fogarty, a Medical Officer of the Commonwealth provided an opinion pursuant to the provisions of the Migration Regulations concerning whether Gregory satisfied criteria necessary for the grant of the visa for which his father had applied. The opinion was in the following terms: "My opinion is based on available medical and radiological information and the duration of stay sought in Australia. In my opinion, the abovementioned person does not meet the prescribed health criteria for the proposed duration of stay for the following reason/s as set out in the Migration Regulations as schedule 4, at subparagraph 4005(c)(i) that is: the applicant is a person who has a disease or condition that, during the applicant's proposed period of stay in Australia, would be likely to: result in a significant cost to the Australian community in the areas of health care or community services. MY REASONS ARE AS FOLLOWS:- This 22 year old man has borderline intellectual functioning. He underwent formal psychological testing in 1994 which found visual motor difficulties, poor control and lack of planning ability, poor immediate visual memory and reduced psychomotor speed. His social and independent living skills were poorly developed. When re-tested in 1996 considerable improvement was noted in all areas but he was still in need of further specialised training. He was thought suitable for clerical type of employment with a very structured nature and highly supervised. It is likely with his disability he would meet medical impairment criteria for long term income support in Australia. This would be costly to the taxpayer. I recommend in this case, as a departure from usual practice, that these specific reason/s not be given directly to the applicant but should be provided in consultation with a medical practitioner nominated by the applicant. Peter Fogarty - National Health Clearances Unit A Medical Officer of the Commonwealth for the purpose of providing an opinion on whether prescribed health criteria under the Migration Regulations are met." 16 On 25 November 1996 Mr Seligman wrote to the Australian High Commission in Pretoria requesting a review of the case and the conclusions reached by the National Health Clearances Unit in Sydney. He said that if his request for reassessment were accepted he would get whatever medical evidence was required, including other medical or psychological reports by specialists chosen by the High Commission. He was most anxious to move with his family to Australia but did not wish to be a burden on the Australian welfare system. He believed the risk of his son being a burden on the system was small. In order to minimise that risk he made certain proposals: 1. The establishment of a substantial trust fund in Australia under independent control. 2. Provision of guarantees of support from his sister and brother-in-law (who is a paediatrician) living in Sydney. 3. Waiver of rights to any disability pension if that were possible. 17 He referred to the effort that the family had made to ensure that Gregory was capable of living independently and being a useful member of society and that they were still continuing with this. He believed he had a lot to offer Australia notably: ". a successful executive business career . ability to transfer both skills and capital to Australia . my wife has teaching skills that are being looked for in Australia . my daughter is midway through her studies to become a teacher" 18 A note on the file from Dr Crawford, the delegate of the Minister, at the High Commission indicated that there had been no final decision taken on the case. In relation to possible outcomes Dr Crawford noted on the file: "I stressed to Mr Seligman that this rests on providing further medical advice addressing the concerns raised and that NHCU may well come back with the same findings. I said that if this is the case, then there are no further options available to him." 19 Dr Crawford also noted on the file that Ms King of the National Health Clearing Unit had written a letter which assumed that a decision had been taken on the case and that on the basis of that assumption had said that no further consideration could be given to the matter. Crawford noted: "In fact the case is still open and we are still in a position whereby we can, and should put the details of the findings to the applicant/client and provide them with an opportunity to provide any further medical advice that they wish to put to NHCU for further consideration." 20 A further submission was made by the migration consultants on 5 May 1997 seeking reconsideration by NHCU of their decision that Gregory did not meet the health requirements for migration. They referred to conversations with Dr King of NHCU indicating that the NHCU's view was that Gregory's disability was likely to meet medical impairment criteria for a disability support pension. Referring to further reports which were forwarded with their submission, the migration consultants' submission dealt with the following headings: A. Gregory's disability in terms of IQ and characterisation. B. Cost of Gregory's entitlements as an Australian permanent resident. Under the second heading it was submitted that he would not be entitled to disability support pension as he would not qualify for the criteria for that benefit. 21 A further file note on the relevant file record which was before his Honour, acknowledged the further submissions by the migration agent on 6 May 1997. The note said: "Please wait for submission of the originals which he says were couriered today and forward to NHCU for the attention of Kathy King and refer to Schedule 96/164 and MMCU Case Number 225728." The file recorded that the originals were received on 13 May 1997 and: "…referred to health for the attention of Kathy King under cover of schedule 94." 22 One of the reports enclosed with the submission was prepared by the clinical psychologist, Andrews Davies, who had previously assessed Gregory. It was dated 27 March 1997. In that report he wrote, inter alia: "Regarding his level of intellectual functioning, Mr Seligman's Full Scale IQ of 80 falls within the upper limits of the Borderline Range of Intellectual functioning. This score indicates that he exceeds 9% of the population in terms of his intelligence quotient…There is a Plethora of research to suggest that individuals functioning within the Borderline range of intelligence may achieve adequate vocational and social adjustment. This is particularly so in advanced societies. Maximum educational attainment, as well as high familial socioeconomic level, parental education and family functioning, have also impacted positively on Mr Seligman's achievement potential. His training and occupational performance over the past three year period confirms his ability to function adequately at a semi-skilled level." 23 Mr Davies indicated that he said he had reviewed the intellectual impairment criteria for disability support pension in Australia and was of the opinion that Gregory would not be eligible in that regard and would neither presently nor in the future require such support. He said: "Psychometric test results, training qualifications and occupational history suggests that Mr Seligman is capable of holding down a job and of becoming a productive member of Australian society. His current level of functioning, the absence of emotional and behavioural problems, his work achievements to date, and strong family and community support, suggest that Gregory's disability is not of sufficient severity to warrant or require long-term income support." 24 A further report from the Young Adults Learning and Earning Organisation dated April 1997 confirmed that Gregory was a fulltime member and attended on a daily basis. The organisation caters for young people with certain learning disabilities, middle of the road people who initially find difficulty in the open market due to everyday pressures. The organisation enables those young adults to learn to work in a structured environment under supervision and prepares them for a greater degree of social and work independence. The Director, Merle Sager, noted a marked improvement in Gregory's ability to work independently in various areas that had been allocated to him and that he had familiarised himself with. 25 The paediatrician, Dr Neil Ginsberg, Gregory's uncle married to Norman Seligman's sister, also provided a letter dated 9 March 1997. He disputed the opinion of the MOC that Gregory would meet medical impairment criteria for long term income support in Australia. He addressed the conditions of eligibility for the DSP noting it required: 1. A physical, intellectual or psychiatric impairment of 20% or more; and 2. Inability to work for at least 2 years as a result of impairment; and 3. Inability as a result of impairment to undertake educational or vocational training which would equip the person for work within the next two years. He pointed out that Gregory has no relevant physical disability and according to his interpretation of the Intellectual Impairment Tables in the Social Security Act, he believed he would have a borderline eligibility score but did not satisfy the basic eligibility requirement of inability to work for at least the next two years. 26 Further support was contained in a letter dated 5 May 1997 from the Australian Jewish Welfare Society which referred to the services it provides for people with borderline or mild to moderate intellectual disability to live a fully independent life without special call or demand on the resources of the Australian Government or taxpayers. It said, inter alia: "It is apparent to us - as substantiated by a thorough and investigative analysis by a sister organisation in Johannesburg, Y.A.L.E. - that in today's environment, Mr Seligman is capable of leading a happy and productive life in Sydney as part of a caring community that is willing and able to provide social and emotional support to him and his family without call on, or support from, the Australian government." 27 The Executive Director of the Society who wrote the letter expressed his "firm belief" based on sixty years of partnership with government in the provision of social work and welfare services, an understanding of current legislation and practice regarding people with disabilities that Mr Seligman's application should not be prejudiced in that manner. 28 On 2 July 1997 Dr Crawford, the first Secretary, Immigration, of the Australian High Commission wrote to Mr Seligman advising that on that day a decision had been taken to refuse to grant the visa for which he had applied and also to refuse the grant of the visa to the other members of his family. A decision record was attached to the letter in which Dr Crawford, the decision-maker, said: "3. Requirements not met: FORM 26 MEDICAL EXAMINATION REPORT I have been advised by the National Health Clearance Unit that Gregory fails the health requirement. I am further advised that his condition would result in a significant cost to the Australian community in the areas of health care or community services. In this instance, and as a departure from usual practice, I have been advised that the specific reasons for this conclusion should be provided to a medical practitioner nominated by the applicant who would relate them to the applicant." The decision also noted that the minimum number of points required for further processing was 105 and the actual points scored for the assessment was 120. 29 On 14 July 1997, the text of what was called "The Medical Officer of the Commonwealth's opinion on the reasons regarding his decision" was sent out in a letter from Mrs D. Daly of the Australian High Commission addressed "TO WHOM IT MAY CONCERN". The text of the reasons was identical to those given by Dr Fogarty on 17 September 1996. 30 On 29 July 1997 Mr Seligman filed in this Court an application for an order of review of the decision that the application for the visa be refused. The application was made under Part 8 of the Migration Act. It asserted error of law and the absence of evidence or other material to justify the making of the decision. The application was heard by Foster J on 16 February 1998. On 9 April 1998 his Honour gave judgment allowing the application. He made an order that the decision under review be set aside and remitted to the Minister for further consideration in accordance with the Court's reasons for decision. He also ordered that the Minister pay the applicant's costs of the application. 31 The Minister now appeals against the decision of Foster J.

Statutory Framework 32 The grant of visas for non-citizens is covered in Division 3 of Part 2 of the Migration Act (ss 28-140). The primary power of the Minister to grant visas derives from s 29. There is provision for prescribed classes of visa pursuant to s 31 in addition to classes defined by other provisions of the Act itself (ss 32-38). Regulations may prescribe criteria for visas of specified classes (s 31(3)). Moreover the Regulations may provide that visas or visas of a specified class may only be granted in specified circumstances (s 40(1)). There is power for applicants to be invited to comment on information before the Minister which might lead to a refusal of the visa (ss 56-59). Medical examination in relation to a health and physical or mental condition of applicants is provided for in s 60. 33 The decision to grant or refuse to grant a visa is made under s 65 which provides, in the relevant parts: "65(1) After considering a valid application for a visa, the Minister: (a) if satisfied that: (i) the health criteria for it (if any) have been satisfied; and (ii) the other criteria for it prescribed by this Act or the regulation have been satisfied; and . . . is to grant the visa; or (b) if not so satisfied, is to refuse to grant the visa." 34 Regulation 2.01 of the Migration Regulations identifies the prescribed classes of visas by reference to Schedule 1 which includes as Item 1104 Business Skills (Migrant) (Class AD). That Item specifies five subclasses, one of which is subclass 128 (Senior Executive). 35 Regulations 2.02 and 2.03 define the criteria for each subclass of visa by reference to Schedule 2 which sets out each subclass and those criteria. Regulation 2.03 also provides for the incorporation by reference into the Schedule 2 criteria of additional criteria set out in Schedules 3, 4 and 5. 36 Criterion 128.3 sets out secondary criteria to be satisfied by applicants who are members of the family unit of a person who satisfies the primary criteria. Under this heading one of the secondary criteria, namely 128.322, incorporates by reference public interest criteria set out in Schedule 4 and numbered 4001 to 4005, 4009 and 4010. These are required to be satisfied at the time of the Minister's decision. Item 4005 in Schedule 4 is in the following terms: "4005. The applicant: (a) is free from tuberculosis; and (b) is free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community; and (c) is not a person who has a disease or condition that, during the applicant's proposed period of stay in Australia, would be likely to: (i) result in a significant cost to the Australian community in the areas of health care or community services; or (ii) prejudice the access of an Australian citizen or permanent resident to health care or community services; 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, the applicant has provided such an undertaking." 37 Regulation 2.25A requires the Minister to seek the opinion of a Medical Officer of the Commonwealth on certain of the criteria: "2.25A(1) In determining whether an applicant satisfies the criteria for the grant of a visa, the Minister must seek the opinion of a Medical Officer of the Commonwealth on whether a person (whether the applicant or another person) meets the requirements of paragraph 4005(a), 4005(b), 4005(c), 4006A(1)(a), 4006A(1)(b), 4006A(1)(c), 4007(1)(a), 4007(1)(b) or 4007(1)(c) of Schedule 4 unless: . . . (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."

Regulation 2.25B prescribes the approach to be taken by the Medical Officer in relation to costs and access criteria:

"2.25B In determining whether or not, during an applicant's proposed period of stay in Australia, a person's disease or condition would be likely to: (a) result in a significant cost to the Australian community in the areas of health care or community services; or (b) prejudice the access of an Australian citizen or permanent resident to health care or community services; the Medical Officer of the Commonwealth must consider the person's need and eligibility for health care or community services, without regard to whether that person will use the services."

These latter regulations are made pursuant to s 505 of the Act which provides:

"505 To avoid doubt, regulations for the purpose of prescribing a criterion for visas, of a class may provide that the Minister, when required to decide whether an applicant for a visa, of the class satisfies the criterion: (a) is to get a specified person or organisation, or a person or organisation in the specified class, to: (i) give an opinion on a specified matter; or (ii) make an assessment of a specified matter; or (iii) make a finding about a specified matter; or (iv) make a decision about a specified matter; and (b) is: (i) to have regard to that opinion, assessment, finding or decision in; or (ii) to take that opinion, assessment, finding or decision to be correct for the purposes of; deciding whether the applicant satisfies the criterion." Regulation 1.03 defines "Medical Officer of the Commonwealth" as "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". And regulation 1.16AA provides: "1.16AA The Minister may, by writing signed by the Minister, appoint a medical practitioner to be a Medical Officer of the Commonwealth for the purposes of these Regulations."

The Decision of the Trial Judge 38 After setting out the factual history outlined above the learned trial judge observed that there was no precise indication in the material before him that the further representations made to Dr Crawford in May 1997 had been considered. Nevertheless his Honour was of the view that it was reasonable to assume they were as the final decision was not given by Dr Crawford until 2 July 1997. This finding is the subject of a Notice of Contention by the respondent who submits that having regard to the terms of the Medical Officer's opinion in July 1997, identical to those of the earlier opinion, the proper inference is that the additional materials had not been taken into account. 39 The grounds of the application before his Honour relied upon error of law within the meaning of subs 476(1)(e) of the Migration Act and absence of evidence within the meaning of subss 476(1)(g) and 476(4)(a) of the Act. The Minister contended as a threshold point that these grounds as grounds for review of the delegate's decision could not be made out. The delegate was bound to accept the Commonwealth Medical Officer's opinion by virtue of subreg 2.25A(3) and could commit no error of law in so doing. 40 In considering this submission his Honour concluded that the Medical Officer's opinion amounted to a judicially reviewable decision within the meaning of s 475(1)(c) of the Act. Noting that s 480 of the Act provides that the parties to the review of a judicially reviewable decision covered by par 475(1)(c) are the Minister and the person who is the subject of the decision, his Honour held that the legislative intention underlying s 480 is that only the Minister is to be made a party in such review proceedings. This did not, however, mean that only the Minister's decisions could be subject to review. Thus the opinion of the Commonwealth Medical Officer underpinned the ultimate decision of the Minister and could be reviewed in proceedings brought against the Minister for that purpose. He concluded that the proceedings before him were a proper vehicle for the review of Dr Fogarty's opinion. 41 Turning to the grounds of review, his Honour found error of law on the part of the Medical Officer of the Commonwealth in the reference to long term disability support. This was not, in his Honour's view, an aspect of health care nor was it a community service. He said: "Whilst I can envisage the occasional supply of money to a disabled person by a Government agency to assist, in a temporary way, with some particular present problem as being, relevantly, the provision of a "service", or as falling within the area of community services, I have difficulty in seeing that the provision of a regularly paid pension can fall into the same category. It lacks the personal quality of performance of work for another which is involved, in my opinion, in the concept of "service"." On this basis the payment of "long term income support" was not a "cost to the Australian community in the area of … community services" within the meaning of subpar 4005(c)(i). The decision-maker had therefore committed an error of law in applying a test not comprehended by the criterion. 42 Turning to the no evidence ground in relation to Dr Fogarty's conclusion that Gregory was likely to meet "the medical impairment criteria for long term income support" his Honour observed that the only evidence placed before him in that regard was that set out in opinions forwarded to the Australian High Commission on behalf of Mr Seligman. In the circumstances he considered he should determine this aspect of the case on the basis of that material. He said: "In other words, it is reasonable to assume that when Dr Fogarty spoke of "medical impairment criteria" he was referring to the criteria set out in those submissions. That being so, I am persuaded by those opinions that he did not have before him "evidence or other material from which [he] could reasonably be satisfied that Gregory's eligibility for "long term income support" was established." 43 On this basis the second ground of appeal was also made out. 44 His Honour ordered: "1. The application be allowed. 2. The decision under review be set aside and the matter remitted to the respondent for further consideration in accordance with these reasons. 3. The respondent pay the applicant's costs of the application."

Grounds of Appeal and Notice of Contention 45 The grounds of appeal by the Minister assert error of law by his Honour in four respects: (a) …by reviewing the decision of a Medical Officer of the Commonwealth under paragraph 4005(c) of Schedule 4 to the Migration Regulations, which had not been challenged by an application for an order of review under Order 54B of the Federal Court Rules. (b) …by holding that once the Court's jurisdiction is invoked under section 475(1)(c) of the Migration Act in relation to a decision of a delegate under Regulation 2.25B of the Migration Regulations, the Court also has jurisdiction to review a decision of a Medical Officer of the Commonwealth under paragraph 4005(c) of Schedule 4 to the Migration Regulations, applied by the delegate. (c) …in holding that the term "cost to the Australian Community in the area of …community services" in paragraph 4005(c) of Schedule 4 to the Migration Regulations could not involve consideration of "long term income support". (d) … in holding that there was no evidence or other material from which the decision-maker could be reasonably satisfied that the respondent's son Gregory would be eligible for long term income support in Australia. 46 The Notice of Contention filed on 19 November 1998 on behalf of Mr Seligman asserted that his Honour erroneously decided against Mr Seligman that: "…the Medical Officer, after his decision dated 17 September 1996, made a further decision which took into account the material submitted by the applicant dated 25 November 1996, 5 May 1997, 27 March 1997 and 9 March 1997." The Medical Officer's Opinion 47 The opinion of the Medical Officer, Dr Fogarty, was evidently determinative of the delegate's decision to refuse the grant of a visa. It is necessary to consider the elements of the process by which a medical opinion is provided to the Minister or his delegate as set down in reg 2.25A. 48 The seeking of an opinion by the Minister takes place "in determining whether an applicant satisfies the criteria for the grant of a visa". This recognises the conceptual distinction between ascertaining whether criteria are satisfied and deciding to grant or refuse the visa. It is the first limb of that two phase process upon which the requirement of reg 2.25A operates. The defining and limiting attributes of what is sought from the Medical Officer are: 1. What is provided must be an opinion. 2. The opinion must be that of the Medical Officer of the Commonwealth who provides it. 3. The subject of the opinion must be "whether a person meets the requirements of the applicable paragraph of Schedule 4". 49 The Minister is required by subreg 2.25A(3) to take the opinion to be "correct". That is subject to three qualifications: 1. The opinion must be the opinion of the Medical Officer "on a matter referred to in subreg (1) or (2)". The matter referred to in subreg 2.25A(1) is whether a person meets the requirements of the relevant paragraph of Schedule 4. 2. The Minister is to take the opinion as correct for the purposes of deciding whether a person meets a requirement or satisfies a criterion. 3. The opinion must address satisfaction of the requirements at the time of the Minister's decision. 50 Each of the paragraphs referred to in Regulation 2.25A(1) involves the same criteria, namely that the applicant or person concerned: "(a) is free from tuberculosis; and (b) is free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community; and (c) is not a person who has a disease or condition that, during the applicant's proposed period of stay in Australia would be likely to: (i) result in a significant cost to the Australian community in the areas of health care or community services; or (ii) prejudice the access of an Australian citizen or permanent resident to health care or community services." 51 In the case of Items 4006A and 4007, subpar (c) is subject to a waiver discretion under subclause (2). Similar criteria in Schedule 2 attract the requirement of medical opinion where the grant of a Medical Treatment (Visitor) (Class UB) Visa is in issue. 52 The opinion is that of a person appointed by the Minister on the sole statutory qualification that he or she is a medical practitioner (reg 1.16AA). The primary subject matter of the opinion in each case is the existence or non-existence of a "disease or condition". If the disease is tuberculosis the inquiry can stop there for that involves a failure to meet the requirements of subpar (a). If some other disease or condition is identified then the question must be asked, under subpar (b), whether it is one that is or may result in the applicant being a threat to public health in Australia or a danger to the Australian community. The answer will involve a medical judgment about such issues as whether the disease or condition is infectious, the transmission mechanism of the disease and, perhaps in the case of a person suffering a psychiatric disease or disorder, the extent to which they may engage in behaviour which is a danger to others. 53 The issue raised by subpars (c)(i) and (c)(ii) will also involve matters of medical judgment about the nature of the disease or condition which is identified. Whether a disease or condition has characteristics that require ongoing health care or support services for the person suffering from it is a matter of medical judgment. And in a broad sense a medical practitioner can assess whether the provisions of such health care or support services involves a significant cost. Indeed the use of the word "areas" in the collocation "areas of health care or community services" suggests a judgment about the nature of the disease or condition rather than an attempt to relate it to precise health care provisions or particular community services. 54 There are however difficulties with reg 2.25B. It is in form a directive to the Medical Officer to consider some things and not others in the formation of his opinion. It assumes that the person the subject of the opinion is suffering from a disease or condition and purports to regulate the way in which the Medical Officer determines whether the disease or condition would be likely to result in a significant cost to the Australian community in the areas of health or community services. In making the determination he or she is required to consider the person's need and eligibility for health care or community services without regard to whether the person will use it. 55 The applicable elements of the relevant regulation making power under s 505 authorise regulations to be made providing that the Minister is to get a specified person to give an opinion on a specified matter. The regulations are to apply in cases in which the Minister is required to decide whether an applicant for a visa satisfies one of the specified criteria. The regulation making power is therefore limited by the terms of the criterion to which it applies. It does not extend to a regulation which requires an opinion to be so formed that does not address or is inconsistent with the terms of the relevant criterion. 56 If reg 2.25B imposes a reasoning process upon the Medical Officer requiring or permitting the formation of some opinion other than on an element of, or matter relevant to, the criterion it will be beyond the power conferred by s 505. The regulation cannot be used to construe the criterion. It cannot alter the meaning of the collocation "disease or condition…likely to result in a significant cost to the Australian community in the areas of health or community services". In particular, it cannot be used to cut down the meaning of the word "likely" in that phrase or the range of considerations to be taken into account in assessing the probability to which it adverts. 57 To limit the consideration of the Medical Officer to need and eligibility for health care or community services does not meet the requirement of the criterion, the terms of which are imported into the regulation. The question of the likelihood of significant cost which is posed by Item 4005(2)(i) requires an assessment of the use which the person in question is likely to make of health care or community services. If the Medical Officer cannot consider that question then the Minister or his delegate must. The opinion of the Medical Officer in such a case might be taken as correct only as far as it goes which, if it excludes consideration of prospective use, does not go as far as the criterion requires. 58 The better view however is that reg 2.25B is not authorised by s 505. It is internally inconsistent because what it requires the Medical Officer to do is inconsistent with the language of the criterion which it imports. And it is beyond the power conferred by s 505 because the limitation it imposes upon that opinion means it does not address the relevant criterion. 59 The question of the validity of reg 2.25B was not raised at the hearing of the appeal before this Court. Following the hearing and after consideration of that issue, the Court invited written submissions on the point from the parties. 60 It was submitted for the Minister that Item 4005(c) does not require a determination of whether a person who has a disease or condition within the terms of the Item is likely to use health care or community services which are available to Australian citizens and permanent residents. Neither the Migration Act nor the Migration Regulations contained, it was said, any indication that a person who falls within the terms of Item 4005(c) can be permitted to live permanently in Australia but be denied access to such services, or that the person or someone acting on his or her behalf can enter into an arrangement under which the person is precluded from using them. Item 4005 contains no provisions resembling Items 4006A(2) and 4007(2)(b) of Schedule 4. In those circumstances, it was submitted for the Minister, that assessing whether or not a person who falls within Item 4005(c) is likely to use services would serve no useful purpose and no purpose relevant to the administration of the Migration Act. 61 The Minister submitted that there is no conflict between s 505 and reg 2.25B. Regulation 2.25B it was said, quite properly directs the Medical Officer of the Commonwealth not to import into the formation of his or her opinion under reg 2.25A a consideration which has no relevance to Item 4005(c) of Schedule 4. 62 This submission, however, does not do justice to the words of Item 4005(c)(1) which require consideration of the likelihood that the applicant's disease or condition would result in a significant cost to the Australian community in the area of health care or community services. It depends critically upon the contention that Item 4005(c) "does not call for a determination of whether a person who has a disease or condition is likely to use health care or community services which are available to Australian citizens and permanent residents". That is what the ordinary meaning of the words requires. No doubt upon the contrary view, there is an evaluative risk management judgment to be made about the probability of future resort to such services by an applicant. But the construction propounded by the Minister does not avoid evaluative, qualitative judgments about the consequences of a particular disease or condition. 63 Notwithstanding the provisions relating to the Medical Officer's Opinion therefore, the question whether a person satisfies the criterion set out in Item 4005 is to be addressed by reference to practical considerations and real world probabilities. It is the view of the Court that reg 2.25B is invalid but severable: see s 46(1)(b) of the Acts Interpretation Act 1901 (Cth) and Coleman v Gray (1994) 55 FCR 412 at 429-430 per Gummow J.

Challenging the Medical Officer's Opinion 64 The learned trial judge took the view that the application for review of the delegate's decision was a proper vehicle for review of the Medical Officer's Opinion. He did so upon the basis that the opinion fell into the category of a judicially-reviewable decision under s 475(1)(c) of the Act. The bar to joining the Medical Officer as a party, said to be imposed by s 480, did not present review of the opinion in an application to review the delegate's decision based upon that opinion. 65 It was submitted for the Minister that this reasoning was in conflict with reg 2.25A(3). Judicial review of the delegate's decision could not attribute error to him by virtue of an opinion which he was bound by law to take as correct. Reference was made to the decision of Davies J in Manokian v Minister for Immigration and Ethnic Affairs (1997) 48 ALD 632 where his Honour held that the Refugee Review Tribunal correctly decided it could not review a Commonwealth Medical Officer's opinion. His Honour said in that case: "The primary decision-maker had no power to go behind the certificate of the Commonwealth Medical Officer that was before him, and in my opinion the Act gave no further power to the review officer or the Tribunal to go behind that certificate." (at p 633) It is to be noted that this decision was handed down before reg 2.25A and reg 2.25B came into force. 66 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. 67 It is not necessary for present purposes to decide whether his Honour was correct in characterising the opinion as a judicially-reviewable decision. He took the view that the Medical Officer erred in passing upon the likelihood that Gregory's "condition" would require long term income support. The way his Honour saw it that was an error about the scope of "community services" contemplated by the criterion in Item 4005(c)(i). If that is correct and it were such an error then the opinion on the face of it did not address the criterion and the delegate would have erred in taking it as correct. 68 As to the second ground relied upon by his Honour, relating to the absence of evidence to support the Medical Officer's opinion, an opinion which is unlawful for that reason does not bind the delegate. The fact that the delegate may not have made inquiry or may have been unaware of the deficiency makes it no less an error of law to treat the opinion as provided in accordance with the requirements of the regulations and to be taken as correct. 69 On this approach it makes no difference to the outcome of the case that his Honour characterised the decision of the Medical Officer as a judicially-reviewable decision. If the opinion is vitiated by error of law the delegate errs in taking it as correct. On the basis already outlined, the Court has jurisdiction to consider the lawfulness of the Medical Officer's Opinion as an element of its consideration of the lawfulness of the delegate's decision. The first two grounds of appeal which are both directed to this issue therefore fail.

The Scope of "Community Services" 70 His Honour found error of law on the part of the Medical Officer of the Commonwealth in the opinion expressed by the Officer that: "It is likely with his disability he would meet medical impairment criteria for long term income support in Australia. This would be costly to the taxpayer." Assuming as he did, correctly on the materials before him, that the reference to "long term income support" was a reference to a disability related government pension, his Honour concluded that such a benefit did not fall within the concept of a "service". For that reason it did not fall within the area of community services contemplated by the criterion in Item 4005. 71 The Minister submitted however, that the term "community services" properly encompassed the concept of income support. The use of the term "services" in this context, it was submitted, is not novel. Counsel for the Minister pointed out that between 1947 and 1981 the principal Commonwealth legislation under which income support was made available was known as the Social Services Act. In relation to the dictionary definition of "service" as "an act of helpful activity" it was submitted for the Minister that those words were entirely appropriate as a description of the payment of income support to an individual. His Honour's emphasis on service relating to performance of work for another was, it was said, based on the definition of "service" relevant to a different context namely that of employment. 72 The ordinary English meanings of the word "service" relevant for present purposes are: "the acts of serving, helping or benefiting; conduct tending to the welfare of another. Friendly or professional assistance. Supply of the needs of…" Oxford English Dictionary, 2nd Edition And "an act of helpful activity": "The performance of any duties or work for another; helpful activity." Macquarie Dictionary 73 The generality of the activities covered by these definitions does not exclude the provision of financial benefits. Indeed, his Honour accepted as much when he accepted that occasional payments for temporary financial assistance could fall within the area of community services. The question is whether it cannot, in context, extend to cover the regular payment of a pension benefit. 74 The governing element of the criterion in Item 4005(c)(i) is "significant cost to the Australian people". The policy behind the test is clear. It is to limit the entry into Australia for long term residence of persons who are likely to be a financial burden upon the Australian community. Having regard to that purpose, it would be artificial to construe the term "community services" so narrowly as to exclude pension benefits which may become payable to the proposed entrant. The words are broad enough to cover such payments and in context are no doubt intended to do so. In reaching this conclusion it is not necessary to have regard to the amendment of the regulations which followed upon his Honour's decision and introduced a definition of "community services" including such payments. 75 His Honour therefore erred in his limiting construction of the term "community services".

No evidence for the Medical Opinion 76 The learned trial judge concluded that there was no evidence before the Medical Officer that Gregory was likely to meet "the medical impairment criteria for long term income support". His Honour was persuaded by the material which he found was before the Medical Officer that it did not amount to "evidence or other material from which he could reasonably be satisfied that Gregory's eligibility for long term support was established." 77 It was submitted for the Minister that the relevant opinions were: (a) Mr Davies' psychological assessment report of 8 August 1996. (b) Dr Heitner's letter of 30 July 1996. (c) Dr Ginsberg's letter of 9 March 1997. (d) Mr Davies' letter of 27 March 1997. 78 It was plain, it was submitted, that the Medical Officer had based his view on a consideration of objective findings set out in the first of those documents, namely the report of Mr Davies' of 8 August 1996. He was bound to have made his own evaluation of Gregory's future prospects on the basis of that material. In those circumstances, it was submitted, the Medical Officer could not be said to have made the decision for which there was no evidence. Reference was made to Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 and the observation that: "So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place." It was submitted that it was not open to his Honour to substitute his own evaluation of the evidence for that of the Medical Officer. Moreover it was said his Honour had not had regard to s 476(4)(a) of the Migration Act which conditioned the application of the no evidence ground by the requirement that: "…the person who made the decision was required by law to reach that decision only if a particular matter was established…" 79 The Minister argued that it could not be said that the Medical Officer was required to reach a negative decision on a visa application "only if it were established that the applicant would be eligible in Australia for long term income support" which would result in a significant cost to the Australian community. 80 The latter submission opens up the question about the function of the Medical Officer under the regulations which was the subject of general consideration earlier in these reasons. 81 The Officer's reference to medical impairment criteria for long term income support was part of his reasons for opinion. The opinion he proffered, based on those reasons, was that: "Gregory Seligman had a disease or condition that would be likely to result in a significant cost to the Australian community in the areas of health care or community services." The delegate in his letter and reasons for decision of 2 July 1997 made it clear that the refusal of that visa was based entirely upon this opinion. Under the heading "Requirements not met" he said he had been advised that Gregory failed the health requirement and "that his condition would result in a significant cost to the Australian community in the areas of health care or community services". No other reason was advanced for refusal and it is apparent that the delegate gave no independent consideration to the criterion. His refusal therefore rested entirely upon the opinion provided by the Medical Officer of the Commonwealth. 82 The assessment made by the Medical Officer of the Commonwealth that Gregory would meet medical impairment criteria for long term income support in Australia and that this would be costly to the taxpayer appears to have been the only link in the chain between his observations as to Gregory's condition and the condition that there was likely to be a significant cost to the Australian community in the area of health care or community services. It is apparent on this basis that he had no regard to the actual likelihood that there would be a significant cost to the Australian community. That is no doubt explained by reference to the direction contained in reg 2.25B. In the event, it would seem that if he did consider the opinions which were sent to the Office of the Australian High Commission in support of the application they had no impact on his decision making and beyond the narrow question of eligibility for long term income support. 83 At this stage it is necessary to consider the point raised on the Notice of Contention. It is submitted on behalf of Mr Seligman that the learned trial judge erroneously decided against him that the Medical Officer, after his decision dated 17 September 1996, made a further decision which took into account the material submitted by the applicant dated 25 November 1996, 5 May 1997, 27 March 1997 and 9 March 1997. 84 Having regard to the conclusions which the Court has reached about the validity of reg 2.25B and its impact on the Medical Officer's opinion, it is not strictly necessary to consider the point raised in the Notice of Contention. With respect to his Honour, it is difficult however to avoid the conclusion that no consideration was given to the additional material or that they were put to one side as going only to the actual likelihood of Gregory using health care or community services. The material in part also went to issues of his level of impairment. It should have been considered. And if considered then, as a matter of courtesy, if nothing else, its consideration ought to have been acknowledged. 85 In any event this appeal must be dismissed albeit on a basis different from that upon which his Honour decided the case.

Conclusion 86 For the reasons set out above, the appeal will be dismissed subject to substitution of certain orders in lieu of those made by his Honour. Orders for costs will also be made that seem appropriate to the disposition of the case. But liberty will be allowed in the event that either party wishes to apply for a variation of those orders after consideration of the reasons. I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate: Dated: 1 March 1999 Counsel for the Appellant Mr RRS Tracey QC with Ms RM Henderson

Solicitor for the Appellant: Australian Government Solicitor

Counsel for the Respondent: Mr A Robertson SC with Ms L McCallum

Solicitor for the Respondent: Hitchcock and Associates

At a glance

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