Ramlu v Minister for Immigration & Anor [2005] FMCA 1735

I gave leave for a further amended judicial review application to be filed in court on 23 November 2005. That application asserts relevantly that:

a) the MRT constructively failed to exercise its jurisdiction by basing its decision upon an opinion of a medical officer of the Commonwealth which did not satisfy the requirements of regulation 2.25A and was void because it related to a person who had

i)

increased functional disability and is likely to require joint replacement surgery in view of his arthritis, and

ii)

diabetes that is complicated by hypertension, micro-albuminuria, and "probable" renal disease

whereas there was no evidence that the applicant was a person who had either "increased functional disability" or was "likely to require joint replacement surgery" or had renal disease; and

b) because the medical officer of the Commonwealth failed to genuinely or truly consider which, if any, of the ailments suffered by the applicant would be likely to result in significant cost to the Australian community or prejudice the access of Australians to health or community services.

Regulation 2.25A(3) provides as follows:

(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.

The Regulations required Mr Ramlu to satisfy public interest criteria, including paragraph 4,005 in Schedule 4 which provides as follows:

(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 to which the following subparagraphs apply:

(i) the disease or condition is such that a person who has it would be likely to:

(A) require health care or community services; or

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

during the period of the applicant's proposed stay in Australia;

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

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

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

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

(d) ...

Both the applicant and the Minister made written and oral submissions. Mr Karp, for the applicant, took me to the various reports available to the RMOC which are contained in the court book[8]. Mr Karp notes that the available information from Dr Michael Datyner in relation to the applicant's diabetes indicated that the ailment was under control and stable and the available information from Dr David Spencer indicated that the applicant's arthritis was also being effectively managed. Dr Spencer ventured the opinion that while Mr Ramlu may require joint surgery within 10 years, for the moment he would appear to be barely influenced by his arthritis. Mr Karp notes that the RMOC issued several deferred opinions seeking further information which was provided. He submits that there was nothing in that further information that could support the opinion of the RMOC ultimately made. Mr Karp submits that the RMOC was required to consider not merely the diseases or ailments suffered by the applicant but the severity of them. The expert evidence available to the RMOC pointed to a low level of severity, both of arthritis and diabetes and did not point to renal disease at all. Nevertheless, the RMOC considered that the applicant was in the position of a person who had increased functional disability likely to require joint replacement surgery in view of his arthritis, and diabetes complicated by hypertension, microalbuminuria and "probable" renal disease.

Mr Karp submits that the RMOC, having failed to consider the position of a person who had conditions or diseases suffered by the applicant, produced a paragraph purporting to address the criteria derived from condition 4005(c) in nothing more than the most general of ways. He submits that it is entirely unclear whether the RMOC was referring to one or more medical conditions. Nor is it clear what health care would be required by a person in the position of the applicant (at least in the case of diabetes) and what would be the cost of such health care and community services.

In Mr Karp's submission, the various deficiencies in the decision of the RMOC point to a constructive failure to perform the statutory function conferred upon her. Accordingly, the MRT was wrong in accepting the opinion of the RMOC.

Mr Reilly relevantly makes the following written submissions:

The Further Amended Application seeks to attack the decision of the RMOC as unlawful, and thereby impugn the Tribunal's decision on the basis of MIMA v Seligman [1999] FCA 117; (1999) 85 FCR 115 (FC) at [66-69]. It may be noted that the basis of the decision in Seligman was that the then form of reg 2.25B was invalid as it purported to require an opinion other than that specified in the then form of PIC 4005: Seligman at [56], [58]. The current form of PIC 4005(c) includes what was formerly in reg 2.25B as part of the opinion to be formed, which overcomes the difficulty identified in Seligman_, and the current form of PIC 4005(c) was held to be valid in_ Imad v MIMIA [2001] FCA 1046 (Heerey J) at [10]; see also Triandafillidou v MIMIA [2004] FMCA 20 (Bryant CFM).

There is clear authority that the current form of PIC 4005(c) imposes an objective test based on a hypothetical person with the disease or condition: Blair v MIMIA [2001] FCA 1014 (Carr J) at [44]; Iguanti v MIMIA [2001] FC 1046 (Heerey J) at [10-11]; Robinson v MIMIA [2005] FCA 1626 (Siopis J) at [43-56]. In this case the RMOC found that the Applicant suffered from certain diseases or conditions (essentially rheumatoid arthritis and diabetes), and then proceeded to assess whether a hypothetical person with those diseases or conditions would fall within PIC 4005(c), consistently with these authorities.

The Applicant first claims that the RMOC's opinion was made without evidence. However there was ample evidence for the RMOC's conclusions from the evidence of the Applicant's own physician: CB 207, 208, 232, 233, 234, 235, 236, 256. A "no evidence" submission could only succeed if it was not open to the RMOC to form the opinions she did: see eg the submission recorded in Seligman at [78]. However such a submission cannot be made out simply by asserting as the Applicant's Submissions do that the RMOC's conclusions were factually wrong. It is trite law that the Court cannot review the merits of the RMOC's decision: MIEA v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272, and that there is no error of law, let alone a jurisdictional error, in the RMOC making a wrong finding of fact: Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [137]. It was open to the RMOC to find that the Applicant suffered from rheumatoid arthritis and diabetes based on the evidence before her, and to make predictions as to their future course based on her knowledge and experience. Accordingly the no evidence ground must fail, a conclusion supported by the observations in X v MIMIA [2005] FCA 429 (Finkelstein J) at [11] (the judgment was reversed on other grounds: MIMIA v X [2005] FCAFC 209)

The other ground is that the RMOC failed to "genuinely or truly consider" which of the Applicant's ailments would engage PIC 4005(c). As stated above, the RMOC found that the Applicant suffered from rheumatoid arthritis and diabetes, and that PIC 4005(c) applied to both conditions. This is a conclusion of fact. There is no basis to suggest that the RMOC, who does not need to give reasons, has not "genuinely or truly" considered the question posed by PIC 4005(c). Nor is there any basis to suggest that this would amount to jurisdictional error in any event: MIMA v Anthonypillai [2001] FCA 274; (2001) 106 FCR 426 (FC).

In his oral submissions Mr Reilly put to me that the RMOC, as a medical professional, is not bound by any medical opinion put to her and is entitled (and possibly obliged) to express her own opinion which may be at odds with the professional opinion of other medical professionals. Further, Mr Reilly submits that the RMOC is entitled to diagnose a condition which had hitherto been undiagnosed, on the basis of available material. Mr Reilly submits that the RMOC's decision on the application of the public interest criteria should be taken to be a conclusion on the cumulative impact of both the applicant's arthritis and diabetes. He submits that the RMOC is not required to give reasons for her decision and, in the absence of reasons, it is not open to the Court to speculate as to what her reasons may have been.

In reply, Mr Karp submits that the opinion expressed by the RMOC is diametrically opposed to the available medical information. He submits that the opinion should be taken to have been based on the condition of diabetes, renal disease and arthritis but to have been unsupported by the available evidence. Mr Karp further submits that the applicant's case is unaffected by the decision in Anthonypillai and the ground of constructive failure draws its support from the decision in Minister for Immigration v Guo (1996) 191 CLR 559 at 595. Mr Karp submits that the issue here is not whether the RMOC addressed the relevant legislation in form but whether she had properly turned her mind to it. The bare recitation of the criteria without reference to the diseases or conditions suffered by the applicant or a person in the position of the applicant, or to the nature or extent of cost or imposition upon the community, indicates, in Mr Karp's submission, that constructive failure.

There is no dispute between the parties that the proper general approach to the examination of an opinion of a RMOC relied upon by the MRT is as stated by the Full Federal Court in Minister for Immigration v Seligman at [67]-[69]. That decision related principally to the validity of the then applicable regulations. There is no dispute that the now applicable regulations are valid.

There is also no dispute between the parties that condition 4005(c) requires a likelihood (ie a probability - not simply just a possibility) of a hypothetical person who has a disease or condition that the applicant has would require health care etc, which is likely to result in significant costs to the Australian community: Imad v Minister for Immigration [2001] FCA 1011 at [13]. The test is therefore objective but both requirements must be met.

The decision of Carr J in Blair v Minister for Immigration [2001] FCA 1014, in particular at [19] sets out the basic statutory requirements for a reliable opinion of the RMOC. At [32]-[37] His Honour makes clear that the RMOC is entitled in her decision to differ from the opinions expressed in reports put to her and that it is difficult for the applicant to sustain the challenge to the RMOC opinion based upon the imputed rejection of expert medical evidence. This is particularly so given that the RMOC is not obliged to provide reasons why any available medical opinion was rejected (if it was).

More recently, in Robinson v Minister for Immigration [2005] FCA 1626 Siopis J considered that the MRT erred in considering itself bound by a RMOC opinion which was open to question as to its validity. At paragraph 43 of his judgment His Honour set out the proper test to be applied to an opinion of the RMOC in determining its reliability:

I turn to deal with the first issue. In my view, the applicant's submission as to the appropriate test to be applied, is to be accepted. A proper construction of Public Interest Criterion 4005 of the Regulations, requires the RMOC 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 RMOC is to proceed to make the assessment at a higher level of generality by reference to a generic form of the condition.

In other words, the RMOC must not merely consider the impact of a disease or ailment but must consider the impact of a disease or ailment upon a hypothetical person to the degree suffered by the applicant. His Honour found at [57] that the MRT erred in not applying the correct test to the assessment of the RMOC opinion.

The opinion of the RMOC relied upon by the MRT appears on pages 260 and 261 of the court book. After stating the terms of regulation 4005(c)(ii)(A) the RMOC discusses Mr Ramlu's condition. She states:

The applicant is a person with erosive seropositive rheumatoid arthritis, currently affecting both knees. His synovitis appears to be controlled with Prednisone and Methotrexate. He is likely to require joint replacement surgery within 10 years because of increasing functional disability. He also has diabetes complicated by hypertension and microalbuminuria and probable renal disease. He is likely to require ongoing medical management and treatment for both his rheumatoid arthritis and diabetes.

In my view, there could be no serious quarrel with the RMOC opinion concerning Mr Ramlu's arthritis, if that is the disease or condition considered to enliven paragraph 4005(c)(ii)(A) of the Migration Regulations. The RMOC considers not merely the disease but also the level or seriousness of it. Dr Spencer's report dated 13 March 2000[9] raised the possibility of Mr Ramlu requiring joint replacement surgery within 10 years. Dr Spencer's report dated 24 July 2002 noted that Mr Ramlu had suffered a fracture of the left hip and that investigations were being carried out to check whether osteoporosis was a contributing factor. Dr Spencer's report dated 14 August 2002[10] noted further complications caused by fractures to the left neck of Mr Ramlu's femur. Examination revealed osteopenia but not osteoporosis. While Dr Spencer's then current assessment and immediate prognosis was positive based upon drug therapy, the forward looking analysis required of the RMOC by reference to a hypothetical person who had rheumatoid arthritis to the degree suffered by Mr Ramlu clearly left open a real risk of joint replacement surgery being required.

If, on the other hand, Mr Ramlu's diabetes was the disease which the RMOC considered enlivened condition 4005(c)(ii)(A), then the opinion is open to question. While the opinion notes that Mr Ramlu suffers from diabetes complicated by hypertension and microalbuminuria and probable renal disease (the last apparently being the diagnosis of the RMOC rather than the treating specialist) there is no identification of whether Mr Ramlu suffers from type 1 (infantile) or type 2 (late onset) diabetes, which a brief survey of public health information indicates would be important to a consideration of the complexity and cost of ongoing management of the disease. The report of Dr Chen dated 13 October 2002[11] states that Mr Ramlu has no family history of diabetes and had suffered from the disease for three years. This suggests that Mr Ramlu suffers from type 2 (late onset) diabetes, which public health information indicates can be effectively controlled by drug therapy and lifestyle management. Dr Chen's report also notes that Mr Ramlu has "no history of renal dysfunction" while the opinion of the RMOC identified "probable renal disease". While the RMOC is entitled to her opinion, there is nothing to indicate how that opinion was formed. Given the vagueness of the reference to renal disease, it is most unlikely that that could be the disease enlivening the operation of paragraph 4005(c)(ii)(A).

In their submissions, Mr Reilly and Mr Karp assumed that the RMOC considered that both the arthritis and the diabetes were considered by the RMOC to be diseases or conditions enlivening condition 4005(c)(ii)(A). This requires an inference because, after discussing the various ailments suffered by Mr Ramlu (or believed by the RMOC to be suffered by him), the opinion then continues:

This disease or condition is a disease or condition to which paragraphs 4005(c)(ii)(A) - new in Schedule 4 of the Migration Regulations 1994 apply....

The RMOC does not state which of the various ailments she had previously identified was the disease to which the paragraph applied.

I accept the Minister's submission that a RMOC is not required to give reasons for her opinion and it is not open to the Court (or the MRT) to draw inferences from an opinion in the absence of reasons. That, however, is the problem. In order to give any meaning to the opinion, it is necessary to draw inferences. In my view, in order to be reliable for the purposes of the Regulations, a RMOC opinion must be clear on its face as to what the disease is to which the public interest criteria relate. The opinion of the RMOC in this case is far from clear.

Unlike the RMOC, the MRT is required to give reasons for its decision and those reasons are open to analysis. In paragraphs 4 and 5 of its decision the MRT says:

The Tribunal cannot review an opinion by a MOC in relation to clause 4005. The review is effectively restricted to providing an opportunity for a further opinion to be obtained from another MOC. An administrative review arrangement exists hereby further opinions can be obtained from a Review MOC.

If such a further opinion is obtained, the Tribunal's task is to do no more than consider whether the opinion was properly made under the relevant provisions. If properly made, the opinion must be taken as correct (subregulation 2.25A(3) of the Regulations) and the Tribunal would either remit the applications for visas to the Department for further consideration or affirm the decisions under review. See Minister for Immigration and Multicultural Affairs v Seligman [1999] FCA 117.

In my view, the MRT correctly stated the task that it had to perform. It followed, however, that where a RMOC opinion was subject to challenge by an applicant, or appeared on its face to be questionable, the MRT must consider whether the opinion was properly made under the relevant provisions. In this case, although the applicant elected not to attend an oral hearing before the MRT, the RMOC opinion was challenged in written submissions made by him. The MRT, as it was entitled to do, proceeded to make a decision without an oral hearing, pursuant to s.363B of the Migration Act. However, the absence of an oral hearing did not relieve the MRT of its obligation to consider whether the RMOC opinion was properly made. The MRT purported to discharge that obligation in paragraph 12 of its reasons, where the MRT stated:

The Review MOC indicated that the primary visa applicant's condition was a disease or condition to which paragraph 4005(c)(ii)(A) applies, and he did not satisfy public interest criterion 4005. The Tribunal notes the other claims and arguments of the visa applicants. Nonetheless, the Tribunal must accept the opinion of the RMOC. The Tribunal is not able to waive the "health requirement".

Significantly, the MRT in its reasons did not identify what the disease was to which paragraph 4005(c)(ii)(A) applied. That is understandable where the opinion of the RMOC did not make that clear. In my view, the MRT fell into the same error as was identified by Siopsis J in Robinson. Here, however, the error was more grievous than in Robinson. The MRT was left in the position where it could not be sure what the relevant disease was, let alone the level of it. If the relevant disease was rheumatoid arthritis, then the RMOC opinion was probably properly formed and reliable. If, on the other hand, the relevant disease was diabetes, then there was a question which required an answer whether the opinion was properly formed. If the relevant disease was something else then the opinion was almost certainly not properly formed. There was a failure on the part of the MRT to consider these issues. This was a jurisdictional error: Robinson at [57]. In consequence, the decision of the MRT is not a privative clause decision and the applicant should receive relief in the form of writs of certiorari and mandamus.

Costs should follow the event in this case. The Federal Magistrates Court Rules 2001 (Cth) now prescribe that an amount of $5,000 is payable in migration proceedings following a final hearing. While that prescribed amount does not necessarily apply to applications filed before 1 December 2005, I see no reason to depart from the scale costs prescribed under the Court rules and I will order that the Minister pay the applicant's costs fixed in that amount.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Driver FM

[8] pages 232-236 in relation to the arthritis issue and pages 103 and 104 in relation to the diabetes issue