Salma v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Federal Court of Australia|2023-04-20|Before: Burley J

The appeal be dismissed.
The appellant pay the first respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT 1 INTRODUCTION [1] 2 BACKGROUND [14] 2.1 The Legislative Framework [14] 2.2 The RMOC opinion [20] 2.3 The NDIS rollout [22] 3 THE APPEAL [32] 3.1 The submissions [32] 3.2 Consideration [42] 4 DISPOSITION [62]

INTRODUCTION 1 The first to fourth appellants are respectively Umme Salma, SM Makeem Arham, SM Safeen Arham and SM Didar Hossain. They appeal against the whole of the judgment and orders of a judge of the Federal Circuit Court (now the Federal Circuit and Family Court (FCFCA)) dated 26 November 2019 in Salma & Ors v Minister for Immigration & Anor [2019] FCCA 3646 (decision). 2 The appellants are all citizens of Bangladesh. The first appellant was born in October 1983. The fourth appellant is her husband, who was born in October 1982. The second and third appellants are their sons who were born respectively in January 2013 and January 2018. 3 The appellants applied for Temporary Graduate Visas on 17 March 2018, with the first appellant being the primary applicant. She was required to satisfy cl 485.216(1) and (3) of Schedule 2 of the Migration Regulations 1994 (Cth) such that she and the other appellants, as members of her family unit, satisfied Public Interest Criterion 4005 (PIC 4005) of Schedule 4 of the Regulations. PIC 4005(1)(c)(ii)(A) relevantly requires that the appellants all be: …free from a disease or condition in relation 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 areas of health care and community services. 4 Section 65(1)(a)(i)-(ii) of the Migration Act 1958 (Cth) provides that the Minister cannot grant a visa unless satisfied, inter alia, that the health criteria for the relevant visa, as prescribed by the Act or the Regulations, have been satisfied. 5 Regulation 2.25A(1) of the Regulations requires that the Minister, in determining whether an applicant for a visa satisfies the criteria for the grant of a visa, seek the opinion of a Medical Officer of the Commonwealth (MOC) on whether the applicant or another person meets the requirements of PIC 4005. Regulation 2.25A(3) provides that the Minister must take the opinion of the MOC to be correct for the purposes of deciding whether a person meets a requirement or satisfies a criterion. 6 The second appellant has Down syndrome. The appellants were requested to and did attend for medical examinations in connection with their visa applications and a MOC gave an opinion dated 7 June 2018 which stated, in summary, that the second appellant did not satisfy PIC 4005(1)(c)(ii)(A). 7 On the basis of the opinion of the MOC, a delegate of the Minister for Immigration found that cl 485.216(1) and (3) of the Regulations had not been met, and refused to grant the Visas. 8 The appellants then applied to the Administrative Appeals Tribunal for merits review of the decision of the delegate. On 6 February 2019, the Tribunal advised the appellants that a further opinion could be obtained from a MOC. On 16 February 2019, the appellants' agent submitted a request for a further opinion from a MOC. The agent also attached a letter from Dr Harsha Gowda dated 18 December 2018, which records that the second appellant has Down syndrome, the treatment and support services he requires and his financial needs for the following one and a half years. A Review Medical Officer of the Commonwealth (RMOC) gave a further opinion on 21 February 2019 to the effect that the second appellant did not satisfy PIC 4005(1)(c)(ii)(A). After hearing the matter, at which the first appellant appeared on behalf of all of the appellants, the Tribunal affirmed the decision of the delegate. 9 The appellants applied to the FCFCA for judicial review of the decision of the Tribunal. On 26 November 2019, the FCFCA dismissed the application. 10 The appellants now appeal to this Court from the FCFCA decision, initially on four grounds, but at the time that the appellants' counsel filed their written submissions, the appellants abandoned all prior grounds and contended only that the primary judge erred in not finding that the decision of the Tribunal was affected by jurisdictional error as it was based upon a defective opinion of the RMOC. The amended ground was not raised before the primary judge. 11 The appellant, who was represented by D Godwin of counsel, seeks leave to rely on additional evidence, not relied on before the primary judge, in support of the new ground. The Minister, who was represented by K Hooper of counsel, does not oppose the grant of leave to rely on the amended ground or the adducing of new evidence, provided that he was able to rely on an affidavit in response. 12 On the basis that it is not the subject of opposition, and having regard to the explanation given for raising the ground late (the appellants were unrepresented) and the fact that the ground is clearly arguable, I grant leave to the appellants to rely on the ground of appeal now advanced and also to rely on an affidavit affirmed on 19 October 2022 by Howard Murdoch, solicitor, who annexes documents in support of that ground. I also grant leave to the Minister to rely on an affidavit affirmed by Hongyi Gao on 28 February 2023 in response, which also annexes a series of documents. Both affidavits were admitted into evidence without objection. 13 However, for the reasons set out below, the appeal must be dismissed.

2.1 The Legislative Framework 14 The Tribunal found that the second appellant did not meet PIC 4005(1)(c)(ii)(A), which relevantly requires that; (1) The applicant: … (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 … regardless of whether the health care or community services will actually be used in connection with the applicant; and … (2) For subparagraph (1) (c) (i), the period is: … (b) for an application for a temporary visa: (i) the period for which the Minister intends to grant the visa; or (ii) if the visa is of a subclass specified by the Minister in an instrument in writing for this subparagraph - the period commencing when the application is made. (3) If: (a) the applicant applies for a temporary visa; and (b) the subclass being applied for is not specified by the Minister in an instrument in writing made for subparagraph (2) (b) (ii); the reference in sub-subparagraph (1) (c) (ii) (A) to health care and community services does not include the health care and community services specified by the Minister in an instrument in writing made for this subclause. (Emphasis added.) 15 The legislative instrument applicable as at the time of the opinion provided by the RMOC for the purposes of PIC 4005(3)(b) was Migration Regulations 1994 - Specification of Health Care and Community Services (IMMI 11/073) which relevantly provides: 1. SPECIFY the following health care and community services for the purposes of Subclauses 4005(3)…of the Regulations: (a) Social Security payments (including Child Benefits, Child Disability Allowances, Disability Support Pensions, Double Orphan Payments, Family Tax Benefits, Education Entry Payments, Maternity Allowances, Maternity Immunisation Allowances, Mobility Allowances, Pharmaceutical Allowances, Sickness Allowances and Special Benefits) 16 The Explanatory Statement to IMMI 11/073 relevantly states: 1. This Instrument is made under Subclauses 4005(3) of the Migration Regulations 1994 ('the Regulations'). 2. Subclauses 4005(3) … of the Regulations provide that a reference in sub-subparagraph (1)(c)(ii)(A) to health care and community services does not include health care and community services that are specified by the Minister in an instrument in writing. 3. The purpose of the Instrument is to ensure that a Medical Officer of the Commonwealth will not consider the health care and community services specified when assessing an applicant against 4005(1)(c)(ii) … if the applicant has applied for a temporary visa not specified in the instrument made for subparagraph 4005(2)(b)(ii) … 4. The Instrument operates to list health care and community services that a temporary visa applicant would be unlikely to be able to access while in Australia. (Emphasis added.) 17 Migration Regulations 1994 - Visa Subclasses for the purposes of the Health Requirement 2016/067 (IMMI 16/067) was the applicable legislative instrument as at the time of the RMOC opinion under PIC 4005(2)(b)(ii). The second appellant applied for a subclass 485 visa, which is not specified in the instrument. Accordingly, for the second appellant, the health care and community services specified in IMMI 11/073 are to be excluded from the MOC's costing; PIC 4005(3). 18 IMMI 11/073 was the legislative instrument applicable at the time of the opinion provided by the RMOC. The current legislative instrument is Migration (Excluded health care and community services) Instrument (LIN 22/014) 2022. It repealed IMMI 11/073 when it was brought into effect on 14 April 2022. It provides: 4 Specified health care and community services For subclauses 4005(3) … of Schedule 4 to the Regulations, the following health care and community services are specified: (a) social security payments; (b) benefits derived from holding a health care card or pensioner concession card; (c) provision of pharmaceuticals listed under the pharmaceuticals benefits scheme that if the person ceases to take would not be seriously detrimental to their life or wellbeing; (d) services provided under the National Disability Insurance Scheme. 19 The Explanatory Statement to LIN 22/104 says at [21]: Paragraph 4(d) provides that services provided under the National Disability Insurance Scheme (NDIS) are excluded from a MOC's consideration. MOCs do not assess benefits under the NDIS as temporary visa holders are generally ineligible for those benefits.

2.2 The RMOC opinion 20 The RMOC opinion is dated 21 February 2019. It states that the second appellant has been assessed against PIC 4005 for the period of 1 year and 6 months, being the duration of the Visas and provides: The applicant does not satisfy sub-subparagraph PIC 4005(1)(c)(ii)(A) in Schedule 4 to the Migration Regulations. The applicant is a 6 year old person with: - Moderate developmental delay Form and severity of the applicant's condition: the applicant has a moderate developmental delay associated with trisomy 21. He requires supported education and assistance with activities of daily living beyond that usually expected at his age. Provision of services to a hypothetical person in Australia with the same condition as the applicant and at the same severity: a hypothetical person in Australia with the same condition as the applicant, at the same severity, would be likely to require ongoing disability services and educational support. 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: Special education services State disability services 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 immigration medical examination (dated 12/04/2018), a pre-school developmental summary from Koorana Child and Family Services (dated 6/07/2017); reports from Paediatricians Dr Allan Kelly (dated 22/05/2018), Dr Albert Mansour (dated 28/08/2018) and Dr Harsha Gowda (dated 18 December 2018). Dr Gowda's costings have been noted. 21 Following the delivery of the opinion, the RMOC provided additional information as to the cost considered as relevant in arriving at the opinion expressed as follows: Significant Cost General comments: Costing reference Scenario 2. Notes for guidance for disability services. Deals with financial implications and consideration of prejudice of access to services associated with disability services November 2017 Estimated total cost $109,500 Breakdown: Special education services - $26000 x 1.5 years = $39,000 Breakdown: State disability services - $47,000 x 1.5 years = $70,500

2.3 The NDIS rollout 22 The Visa application was lodged onshore in March 2018 and the appellants were resident in New South Wales at the time. 23 The annexures to the affidavits of Mr Murdoch and Mr Gao provide information going to the implementation of the National Disability Insurance Scheme (NDIS). 24 The NDIS began in four trial sites across Australia from 1 July 2013 with another three sites commencing on 1 July 2014. Following the trial, the national rollout of the NDIS began on 1 July 2016. 25 In May 2018, the Commonwealth of Australia and the State of New South Wales entered into the Bilateral Agreement between the Commonwealth of Australia and the State of New South Wales on the National Disability Insurance Scheme (Bilateral Agreement). The agreement is stated to commence on 1 July 2018. 26 The Australian Government published a document entitled "Notes for Guidance for Disability Services" in November 2017, a copy of which is annexed to the affidavit of Mr Gao. The Notes for Guidance commence with an overview of the changes to be brought about by the introduction of the NDIS and refer to the details of the progressive roll out, the eligibility criteria and the financial considerations associated with the new system. It relevantly provides: Because of the fundamental changes to disability services provision, the NDIS is being rolled out in stages across the country. Roll-out started in July 2013 for eligible people with permanent and significant disability who meet access requirements, with full national rollout planned for 2018-19. The current Federal and State funded disability services and eligibility criteria continue in areas where the NDIS has not been rolled out. 27 The Notes for Guidance also provide that the National Disability Agreement 2009 sets out the responsibility of the Australian, State and Territory Governments to provide income support and employment services for people with disability and provides: Existing Federal and State disability support services will continue according to existing arrangements except in the areas where the new [NDIS] has been rolled out…. 28 On the next page, under the heading "State Government responsibilities" it also provides: The state and territory governments are responsible for delivering specialist disability services including supported accommodation, respite and community support services such as therapy, early childhood interventions and disability-related support in schools. 29 Under the heading "Introduction to the NDIS", the Notes for Guidance refer to the roll out and repeat that it is being rolled out in stages, with the full national rollout planned to occur by 2019. It provides that the current Federal and State funded disability services and eligibility criteria continue in areas where the NDIS has not been rolled out. In this regard, under the heading "Costing disability services", the Notes for Guidance provide: Please note that costing disability services for clients should continue using existing Federal and State disability support services costs until the National Disability Insurance Scheme has been fully rolled out. Please refer to costed scenarios in Appendix E. 30 Appendix E is entitled "Costed disability scenarios" and provides suggested costings for each of several scenarios under the pre-NDIS disability support services systems. Each scenario is said to include a brief description of the key assumptions made for costings estimates. It is apparent that the RMOC used these costings in formulating the opinion expressed under PIC 4005(1)(c). The opinion refers in terms to "scenario 2" which is described to apply to a notional 9 year old boy with a moderate intellectual disability. The costings included in the relevant table provided in the appendix indicate that the RMOC's costings are relevantly based on State-funded disability services. 31 Annexed to the affidavit of Mr Gao are two documents which he has downloaded from the website. The first is a document entitled "The National Disability Insurance Scheme: a chronology" which is dated 13 July 2018, published by the Parliamentary Library. It notes "milestones" in the development of the NDIS. The second is an article, apparently a press release put out by the NDIS, dated 1 July 2020 headed "Delivering the NDIS: roll-out complete across Australia as Christmas and Cocos Islands join world-leading scheme" and which states "Today marks the completion of the staged national geographical roll-out of the NDIS".

3.1 The submissions 32 In the particulars appended to their ground of appeal, the appellants contend that the RMOC opinion was defective in two respects: (1) because it included State disability services costs when in fact the NSW State disability services had been subsumed into the NDIS from 1 July 2018; and (2) because NDIS service payments are "social security payments" within the coverage of IMMI 11/073 and are excluded from being assessed as health care and community services by PIC 4003(3) in relation to the class of visa sought by the appellants. 33 In relation to the first aspect, the appellants submit that the RMOC did not properly apply the applicable law under PIC 4005(1)(c) in forming his opinion as to the cost of the health care or community services that the second appellant would be likely to require during the period of the visa. They submit that although the Tribunal is required by regulation 2.25A to treat the RMOC opinion as correct, there is settled law that if an MOC has not properly applied the applicable law in formulating an opinion, then this will affect the jurisdiction of the Tribunal in applying that opinion, citing Dang v Administrative Appeals Tribunal [2019] FCAFC 220; (2019) 273 FCR 87 (Kerr, Colvin and Jackson JJ) at [27], [29]. 34 The appellants submit the RMOC opinion was wrong because on 1 July 2018, NSW became the first State to fully integrate into the NDIS. From the NSW entry into the Bilateral Agreement, State disability support services were largely subsumed under the NDIS. The appellants refer to a screenshot of the Health Direct Government website, annexed to the Murdoch affidavit, which bears a "last reviewed" date of June 2021 and was apparently downloaded for the purpose of Mr Murdoch's affidavit, stating that persons living with a disability in New South Wales no longer have their disability services delivered through NSW State government agencies, but instead delivered through the NDIS. Accordingly, at the time of the RMOC opinion in February 2019, the State no longer provided relevant disability services, with the consequence that the opinion was legally flawed in that it relied upon State government costings. In oral submissions the appellants developed this point by reference to the Notes for Guidance. 35 The appellants submit that a proper reading of PIC 4005(1)(c)(ii)(A) yields the result that the RMOC failed to consider that they were resident in NSW and that in that State the NDIS rollout was complete and the Notes for Guidance incorrectly provided for the assessment of services by reference to the provision of services by the State, when following the rollout the payments were made entirely via the NDIS. 36 In the second aspect, the appellants submit that by operation of IMMI 11/073, NDIS payments are excluded from consideration in PIC 4005 because they fall within the definition of "social security payments". Accordingly, had the RMOC understood that the State disability services had been subsumed by the NDIS, then he would not have included these in the calculation of significant cost, as they were excluded by PIC 4005(3). The appellants accept that this aspect has prospects of success only if the first aspect of the appeal succeeds. 37 The Minister advances four broad submissions in response. 38 First, he submits that upon the proper construction of PIC 4005(1) the RMOC could not take into account the subjective circumstances of the appellant's position. The RMOC was obliged to and did apply the statutory criteria by reference to a hypothetical person who suffers from the form or level of the condition in question, citing Robinson v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1626; (2005) 148 IPR 182 at [45] (Siopis J) and Imad v Minister for Immigration and Multicultural Affairs [2001] FCA 1011 at [13] (Heerey J). The RMOC was not required to consider the second appellant's individual personal circumstances, including where he resided at any point in time. 39 Secondly, the RMOC did not in any event err in applying the Notes for Guidance. The national rollout of the NDIS was not completed until 1 July 2020. The Notes for Guidance provided that funding for disability services was carried out by both Federal and State agencies prior to that time. In those circumstances, the RMOC was correct to adopt the position that the Notes for Guidance set out the manner by which the cost would be determined in accordance with PIC 4005(1). 40 Thirdly, the onus lies on the appellants to establish whether or not the NDIS was fully operational or rolled out in NSW by the date of the RMOC opinion. They have not discharged that onus. Insofar as evidence is available, it indicates that the NDIS had not been nationally rolled out as at 21 February 2019, as is demonstrated by the NDIS press release annexed to the affidavit of Mr Gao, which identified completion of the rollout by 1 July 2020. 41 Fourthly, in relation to the second aspect of the appeal, the legislative instrument IMMI 11/073 does not specify services provided under the NDIS. This is apparent from a proper construction of the words "social security payments" having regard to the legislative scheme which includes consideration of the National Disability Insurance Scheme Act 2013 (Cth), the definition of "social security benefit" in the Social Security Act 1991 (Cth) and the types of benefits identified as being included within the term within IMMI 11/073.

3.2 Consideration 42 In Minister for Immigration and Multicultural Affairs v Seligman [1999] FCA 117; (1999) 85 FCR 115 the Full Court at 130, at [66] said: '… The delegate is only entitled and obliged to take [the medical officer's] 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.' See also Dang at [27], [29]. 43 There was no dispute before me that if the RMOC incorrectly applied the law relevant to the assessment test under PIC 4005(1)(c), then the decision of the Tribunal applying the RMOC opinion will be affected by jurisdictional error. The Minister further accepted that no separate demonstration of materiality was required in the present case in the event that error on the part of the RMOC is demonstrated. 44 The first matter for consideration is the construction of PIC 4005(1)(c). 45 In Robinson, Siopis J considered a version of PIC 4005 that was materially the same. The challenge to the decision of the Tribunal was that the RMOC had failed to consider the appellant's actual condition - again a boy who had Down syndrome - and then apply the statutory criteria to a hypothetical person having that specific condition under PIC 4005(1)(c)(i) (at [33], [36]). His Honour said 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. (Emphasis added.) See also Dang at [23], [39]. 46 At [49], Siopis J referred to the following observation of Heerey J in Imad at [14]: The intention behind this regulation is understandable, particularly in the light of reg 2.25A. One would expect that a medical officer would be able to assess the nature of a disease or condition and its seriousness in terms of its likely future requirement for health care. On the other hand, one would not expect a medical officer to inquire into the financial circumstances of a particular applicant or family members or friends or other sources of financial assistance. (Emphasis added by Siopis J) 47 Similarly, in Dang at [30]-[35], the Full Court considered that the fact that the formation of the required opinion is entrusted by the legislation to a medical practitioner informs the proper construction of the provision. A MOC is not required, nor equipped, to provide a detailed economic assessment of the expected costs for access to services. Instead, a MOC is to form a view, based upon medical expertise, as to the likely prognosis attending a condition of the kind experienced by the visa applicant and the likely extent in general terms of the level of health care and community services that may be required in caring for a person with a particular type of condition over a lifetime. The MOC can then make an informed judgment as to whether the cost is likely to be significant. Only then will such an opinion be one that the Minister must take as correct for the purposes of deciding whether the person satisfies the criterion. 48 After declining to follow different reasoning by Finkelstein J in X v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 429, Siopis J said at [56]: …the construction contended for by the applicant is also consistent with the 'scheme' of Public Interest Criterion 4005 of the Regulations. If, as the first respondent contends, the RMOC need make the assessment called for under Public Interest Criterion 4005(c) only by reference to a person suffering from the disease or condition generally, it seems that such an assessment could be made in the abstract. For example, an assessment could be made in the abstract as to whether a person with a typical form of Down's Syndrome would be likely to require health care or be eligible for income or community support services, and whether provision of that care or those services would be likely to result in significant cost to the Australian community. Thus, on the basis of such abstract assessments, it would have been open to Parliament to have identified in the Regulations a number of specific diseases or conditions which, if suffered by any person in the typical form, would preclude that person from satisfying Public Interest Criterion 4005(c); and to have provided that a person who is not 'free from' that specific disease or condition fails the health requirement. The fact that Parliament has not done so, except in the case of tuberculosis (par 4005(a)), supports the construction contended for by the applicant, namely, that Parliament intended the assessment made under Public Interest Criterion 4005(c) to be made on a case by case basis by reference to the form or level of the disease or condition actually suffered by the applicant. Further, the applicant's contention is also supported by the contrast between the use of the words 'free from' in par 4005(a) ‑ which import the notion that the applicant be free from the disease or condition in any form ‑ and the qualifications imposed in Public Interest Criterion 4005(c)(i) and (ii) on the words 'disease or condition' in Public Interest Criterion 4005(c). 49 The appellant contends that an extension should be made to the test in that the RMOC should also have considered whether or not the second appellant was resident in a State where the rollout of the NDIS was complete. If he was, then the RMOC ought to have determined that State funded disability services did not apply at all, because under the NDIS State funded disability services only continued to apply in areas where the NDIS had not been rolled out. By failing to do so, the RMOC mistook the effect of the law, and the Tribunal fell into jurisdictional error. 50 I do not accept this argument. 51 PIC 4005(1)(c) has two limbs: (i) that the applicant be free from a disease or condition in relation to which a person would be likely to require health care services; and (ii) the provision of which would be likely to result in a significant cost to the Australian community in the areas of health care and community services. The current debate centres around the question of whether the MOC should have considered the personal circumstances of the applicant (including where they reside) in assessing the likelihood of requiring health care or community services under (i), and if so whether the fact the NDIS had been rolled out in NSW was relevant to the assessment of the likely cost to the Australian community under (ii). 52 In Robinson and Imad the Court concluded in relation to the first limb that the MOC must take into account the particular medical condition suffered by the applicant and then view it through the lens of the statutory criteria by reference to an hypothetical person who suffers from that form or level of condition. As noted in those decisions, that construction is supported by the language of PIC 4005(1)(c)(i), which in the chapeau requires that it is the applicant who must be free from a disease or condition, but the assessment in (i) is by reference to "a person who has it". 53 In (ii), it is not the applicant (a person who has a disease or condition) but the hypothetical person identified in (i) to whom the provision of health care or community services "would be likely to result in a significant cost to the Australian community". 54 In Imad, the Court says at [13]: …The criterion in cl 4005(c) requires the applicant to be not a person who has a disease or condition of a kind described in paragraphs (i) and (ii). The "person" referred to in (i) is not the applicant but a hypothetical person who suffers from the disease or condition which the applicant has. The criterion requires assessment as to whether or not a disease or condition is such that it would be likely to require health care or community services and that provision of health care or community services would result in a significant cost to the Australian community. The assessment of the likelihood of health care or community services is a qualification or characterisation of the kind of disease or condition in question, just like saying "this is a surgical procedure which usually requires general anaesthetic". It is not a prediction of whether the particular applicant will, in fact, require health care or community services at significant cost to the Australian community. This meaning is rendered, in my view, clear beyond argument by the concluding words beginning with "regardless". (Emphasis added.) 55 This does not reflect a construction that requires the MOC to take into account the subjective or personal circumstances of an applicant when considering whether or not the provision of health care would result in a significant cost to the Australian community. Having identified the disease or condition of the particular applicant, the MOC is to determine by reference to a hypothetical person who suffers from that form or level of the condition the hypothetical or likely healthcare costs. As noted above, that is "regardless of whether the health care…will actually be used". 56 The construction is also consistent with the position adopted in Imad at [14] where Heerey J observed that one would not expect a medical officer to inquire into the financial circumstances of a particular applicant or family members or friends or other sources of financial assistance. It is also consistent with the fact that the MOC is not a person likely to be in a position to ascertain the general circumstances of an applicant. As the Minister submits, an applicant for a visa may be overseas at the time of the application and may move their residence in Australia from time to time. In such circumstances, it is unlikely that those drafting PIC 4005 would have contemplated placing an obligation on the MOC to consider such details. Just as it is not for the MOC to inquire of personal financial circumstances, it is not for the MOC to inquire of where the person resides (similarly, personal circumstances which are not taken into account in formulating the hypothetical person). 57 The consequence is that the determination of the likely costs under the second limb of PIC4005(1)(c) is to be made by reference to an hypothetical person in Australia with a health condition such as that of the second appellant, not by reference to the second appellant, or a person in the specific location of the second appellant at a particular point in time. 58 The second appellant has not demonstrated that at the time of the RMOC opinion in February 2019 the NDIS rollout was complete in Australia. Indeed, the NDIS press release suggests that the rollout was not complete until 1 July 2020. It was apparently not until 14 April 2022 that LIN 22/014 came into effect and specifically made reference to (and exempted) services provided under the NDIS. 59 Furthermore, although the Bilateral Agreement was implemented on 1 July 2018, it contains transitional provisions which do not identify at what point in time that the process of moving from the provision of State-based services was complete. In this context, the appellants advanced a submission that it is the Minister who is in the best position to give evidence going to the completion of the rollout of the NDIS and chose not to do so, citing Blatch v Archer (1774) 1 Cowp 63 at 65; (1774) 98 ER 969. However, whilst he is a Minister of the Crown, the Minister is not the Commonwealth, and I would not in the circumstances of this case draw an inference unfavourable to the Minister that by July 2018 the rollout was complete; Coshott v Prentice [2014] FCAFC 88; (2014) 221 FCR 450 at [81]. 60 The result is that the appellants have not demonstrated error on the part of the RMOC in referring to State costs for the provision of services associated with the medical condition of the second appellant. The first aspect of the appeal must be dismissed. 61 The second aspect of the appeal is dependent for its success upon a positive outcome in the first. Having regard to the conclusion that I have reached on the first, it is unnecessary for me to decide whether services provided under the NDIS fall within the description of "Social Security payments" in 1(a) of legislative instrument IMMI 11/073.

DISPOSITION 62 For the reasons set out above, the appeal must be dismissed. The appellants must pay the first respondents costs of the appeal. I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Burley.

SCHEDULE OF PARTIES NSD 18 of 2020 Appellants Fourth Appellant: S M DIDAR HOSSAIN

Migration Act 1958(Cth)s 65(1)(a)

Migration Regulations 1994(Cth)reg 2.25A(1), reg

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