Migration Act 1958 (Cth), ss.359A, 379A, 379(C)(4), 474(2), 505

Migration Regulations 1994, Regs 1.15, 1.6AA, 2.25A, 2.25A(1), 2.25A(3), 2.25B, 2.25B(a), 2.25B(b), 806.223

Minister for Immigration and Multicultural Affairs v Seligman (1999) FCA 117

Imad v Minister for Immigration and Multicultural Affairs (2001) FCA 1011

Blair v Minister for Immigration and Multicultural Affairs (2001) FCA 1014

Inguanti v Minister for Immigration and Multicultural Affairs (2001) FCA 1046

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

(2) THAT the Applicant pay the Respondent's costs fixed in the sum of $6,000.

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

1. This is an application for review of a decision of the Migration Review Tribunal made in 3 April 2003 affirming a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refusing to grant a Special Eligibility (Residence) (Class AO) visa, subclass 806 Remaining Relative. The delegate's original decision was made on 24 August 2001.

2. The applicant's application is regulated under the Migration Act 1958 (Cth) ("the Act") and the Migration Regulations 1994. In particular, the following fall within the parameters of the applicant's application:

a) The definition of remaining relative contained in Regulation 1.15;

b) Part 806 of Schedule 2 of the Migration Regulations;

c) Criterion 4005 (Public Interest/Health) of Schedule 4;

d) Regulation 2.25A (Referral to Medical Officers of the Commonwealth);

e) Sections 359A and 379A of the Act.

3. The applicant is the sister and a remaining relative of the nominator Dimitrios (Jim) Triandafillidou who is an Australian citizen.

4. It is not contested that the applicant suffers from a significant intellectual impairment and requires support and supervision.

5. It is a requirement of subclass 806 that Regulation 806.223 be satisfied, that is, that the applicant satisfies (inter alia) public interest criterion 4005.

6. The criterion requires that an applicant is not a person of whom:

(ii) provision of the health care or community services relating to the 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 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.

7. Regulation 2.25A(1) requires the Minister to seek the opinion of a Medical Officer of the Commonwealth (the medical officer) as to the applicant's suitability against criterion 4005. That opinion, provided on 8 December 1999 was to the effect that the applicant could not satisfy the terms of criterion 4005.

8. There is no provision in the Act or the Regulations for any discretion as to the applicability of the RMOC's opinion or of criterion 4005.

9. The delegate refused to grant to the applicant a subclass 806 visa and found on 24 August 2001[1] that no other subclass of class AO was applicable in the circumstances.

10. The applicant lodged an application for review in the Migration Review Tribunal on 7 September 2001. On 21 November 2002 the Tribunal wrote to the applicant at 59 Flinders Street, Thornbury which the nominator had provided on the application for review seeking further information relating to the applicant's medical condition.

11. The applicant subsequently forwarded to the Tribunal a report by a Clinical Psychologist, Alexandra Voulgaris dated 26 December 2002. Further telephone contact with the Tribunal by the nominator on 3 January 2003 confirmed that no further information would be provided in response to the Tribunal's letter of request.

12. The second Form 884 "Medicial Opinion of an Officer of the Commonwealth" was completed by the RMOC on 17 January 2003. It found that the applicant could not meet the standard required by criterion 4005, in particular on the basis that the applicant "needs supervision and is not capable of independent living".

13. On 28 January 2003, in accordance with its obligation under section 359A of the Act, the Tribunal again wrote to the applicant, this time seeking her (or, for practical purposes, the nominator's) response to the RMOC material. The same address was used. Again, a period of 28 calendar days was allowed for the applicant's response. The consequences of non-response, including the making of a decision in the applicant's absence, were set out in the letter. Section 379(C)(4) deems that that letter was received within 7 working days of being sent. This effectively gave the applicant a deadline of 6 March 2003 to reply.

14. The nominator responded by writing dated 20 February 2003 giving his comments upon the RMOC opinion. However, the letter was date-stamped at the Tribunal "17 March 2003", placing it outside the 28 day period which the Tribunal had stipulated.

15. On 3 April the Tribunal again wrote to the applicant, once again using the address provided on the application for review. This time it enclosed the record of the decision it handed down that day affirming the delegate's refusal of the visa.

16. Paragraph 12 of the decision records that the decision was made under section 359(C)(2) "without taking further action to obtain the comments and without holding a hearing". The decision otherwise confirmed the correctness of the procedural steps taken by the delegate.

17. The applicant filed Contentions of fact and law on 11 July 2003. The applicant relied upon three grounds:

a) First, that the Tribunal erred in law when it found it was obliged to accept the assessment of the Commonwealth medical officer because the assessment was based on the wording of criterion Regulation 4005 which was internally inconsistent and because of the limitation it imposes (erroneously), the Commonwealth medical officer did not address the relevant criterion;

b) Secondly, the Tribunal erred when it relied upon the opinion of the medical officer based upon a subjective assessment that the applicant's need for health care and community services would be likely to result in significant cost to the Australian community because the medical officer did not inquire into the finances of the nominator or the applicant to make such an assessment, and that if the medical officer did not do so, then someone else was required to make the assessment and failed to do so; and

c) Thirdly, that the tribunal failed to consider whether the applicant fell within any of the other "remaining relative" clauses when considering the criteria.

18. The applicant relied upon the decision of the Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs v Seligman (1999) FCA 117 to support his contentions. In this case the Full Court comprising French, North and Merkel JJ considered similar facts to those raised in this case. The facts in Seligman were that a South African businessman wished to migrate to Australia with his family. He and his wife were university graduates and on all points save one, they qualified for the issue of a senior executive visa under the Migration Act 1958 (Cth) (the Act).

19. The point on which it was said they did not qualify was that their

22-year-old son had borderline intellectual function. A medical officer of the Commonwealth formed the opinion that his condition was likely to result in a significant cost to the Australian community in the area of health care and community services. This was 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.

20. 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 costs to the Australian community.

21. 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 the matter be remitted to the Minister for further consideration in accordance with the Court's Reasons for Judgment, and the Minister appealed that decision.

22. The appeal raised 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. There was no issue that the applicant (Mr Seligman's son) was a person who had a disease or condition that during his 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.

23. A medical officer of the Commonwealth provided an opinion pursuant to the provisions of the Migration Regulations concerning whether the applicant satisfied criterion necessary for the grant of the visa for which his father had applied. He opined that:

"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 significant cost to the Australian community in the areas of health care or community services."

24. Mr Seligman had indicated that in order to prevent his son being a burden on the system he would establish a substantial trust fund in Australia under independent control. He would provide guarantees from his sister and brother-in-law who is a paediatrician living in Sydney and he would waive any rights to disability pension, if that were possible.

25. The Full Court noted that item 4005 in Schedule 4 to the Act was in the following terms:

(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;

(c) is not a person who has a disease or condition that during the applicant's proposed period of stay in Australia will be likely to:

(i) result in 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;

(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."

26. Regulation 2.25A, which was then in force, required the Minister to seek the opinion of a medical officer of the Commonwealth on certain 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 the 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."

27. Regulation 2.25B prescribed 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, the 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 persons' need and eligibility for health care services or community services without regard to whether that person will use the services.

28. These latter Regulations were made pursuant to section 505 of the Act which provides:

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:

(ii) make an assessment of the specified matter; or

(iii) make a finding about the specified matter; or

(iv) make a decision about the 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.

29. The Full Court noted that a medical officer of the Commonwealth was defined as a medical practitioner appointed by the minister in writing under Regulation 1.6AA.

30. In Seligman the Full Court noted that the opinion of the medical officer, which was determinative of the delegate's decision to refuse to grant the visa, had to contain the elements set down in Regulation 2.25A. The Full Court held that the defining and limiting attributes of what was sought from the medical officer are:

(b)the opinion must be that of the medical officer of the Commonwealth who provides it; and

whether a person meets the requirements of the applicable paragraph of schedule 4.

(d)the Minister is required by subregulation 2.25A(3) to take the opinion to be "correct".

31. The Full Court noted that the matters in Regulation 2.25A(1) involve the same criteria, that in broad terms the answer to the questions upon which an opinion was to be based would involve a medical judgment about such issues as whether the disease or condition was infectious, the transmission mechanism, and in the case of a person suffering psychiatric disease or disorder, the extent to which they may engage in behaviour which is a danger to others.

32. The Full Court considered it also involved matters of medical judgment and that in a broad sense the medical practitioner could assess whether the provisions of such health care or support services involved a significant cost. The Full Court, however, considered there were difficulties with Regulation 2.25B and said at paragraph 54:

"It is in a form, the directive to the medical officer, to consider some things and not others in the formation of his opinion. This assumes that the person subject to 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 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.

33. The Full Court considered that the applicable elements of the relevant regulation-making power under section 505 authorised regulations to be made providing that the minister is to get a specified person to give an opinion on a specified matter. The regulations would apply in cases in which the minister is required to decide whether an applicant for a visa satisfies one of the specified criteria. The Full Court said, therefore, that the regulation-making power was limited thus by the terms of the criterion to which it applied and did 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.

If regulation 2.25B imposes a reasoning process upon a 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 section 505. In particular, it cannot be used to cut down the meaning of the word "likely" in the phrase "disease or condition ... likely to result in a significant cost to the Australian community in the areas of health or community services" or the range of considerations to be taken into account in assessing the probability to which it adverts.

35. The Full Court determined that to limit the consideration of the medical officer to need and eligibility to the health care or community services does not meet the requirement of the criterion, the terms of which are imported into the regulation and said:

"The question of the likelihood of significant cost which is posed by item 405(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."

36. The Full Court said in addition at paragraph 58:

The better view, however, is that regulation 2.25B is not authorised by section 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 section 505 because the limitation it imposes upon that opinion means that it does not address the relevant criterion.

37. The applicant relied upon the decision of Seligman to argue, firstly, that the requirements in item 4005 were inconsistent with section 505 and that section 2.25A is internally inconsistent. Secondly, that, as the Full Court said in Seligman's case, if the medical officer cannot consider the question of whether the person is likely to make use of health or community services, then the minister or his delegate must.

38. The applicant contended that, as in Seligman's case, the medical officer had not made an assessment of the individual applicant's circumstances in the sense of whether they were likely to make use of health or community services, and there was no other evidence that the minister or his delegate had done so. Accordingly, it was contended for the applicant that this court should follow the decision in Seligman and set aside the decision of the tribunal.

39. The applicant did not give notice in advance to the respondent that he would be relying on Seligman's case and the respondent was taken by surprise. As a result, I allowed a brief adjournment so that the respondent could consider Seligman's case and whether there were any other relevant authorities. The applicant conceded that the legislation had been changed since the decision in Seligman's case, but contended that it had not been altered in any relevant or meaningful sense.

40. When the matter resumed the respondent had located three decisions subsequent to Seligman: Imad v Minister for Immigration and Multicultural Affairs (2001) FCA 1011 (26 July 2001) per Heerey J; Blair v Minister for Immigration and Multicultural Affairs (2001) FCA 1014 (31 July 2001) per Carr J; and Inguanti v Minister for Immigration and Multicultural Affairs (2001) FCA 1046 (3 August 2001) per Heerey J.

41. The respondent contended that following Seligman's case, and as a result of it, the Regulations had been amended. In particular, Regulation 2.25B, which was the Regulation the Full Court found offensive in Seligman's case as being internally inconsistent and unauthorised by section 505, is no longer in the Regulations. Regulation 2.25A is in the same form. Item 4005 remains but in a different form.

42. Section 4005 are conditions described as public interest criteria and set out in Schedule 4, Part 1, Clause 4005 of the Migration Regulations 1994. The criterion is now as follows:

"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 to which the following subparagraphs apply:

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

(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 service will be actually used in connection with the applicant; and

(d) if the applicant 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."

43. The difference between the two items is in subparagraph (c). In item 4005 in place at the time when Seligman was decided subparagraph (c) says as follows that the applicant:

"(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 result in significant cost to the Australian community in the areas of health care or community services."

44. The new provisions applicable now and subsequent to Seligman's case provide that the applicant:

"(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:

(B) meet the medical criteria for the provision of a community service during the period of the applicant's proposed stay in Australia."

45. In paragraph 12 of his decision in Imad's case Heerey J noted that the Regulation in its present form was substituted after a Full Court held the earlier provision was invalid. In paragraph 13 Heerey J opined that the present Regulation was not invalid and that the criterion in clause 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 significant cost to the Australian community ... it is not a prediction of whether the particular applicant will, in fact, require health or community services at a significant cost to the Australian community. This meaning is rendered, in my view, clear beyond argument by the concluding words beginning with `regardless'."

46. In paragraph 14 Heerey J indicates his view of the intention behind the Regulation, particularly in the light of Regulation 2.25A, as -

"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 any family members or friends or other sources of financial assistance."

47. Heerey J accepted that clause 4005 was valid. In Inguanti's case he considered and adopted the comments that he had made in Imad's case.

48. In Blair's case Carr J came to the same conclusion without reference to Heerey J's decision in Imad and noted in paragraph 44:

"As I said, a constructional issue arises with item 4005(c)(i). It may well be that the function of the medical officer having formed the opinion that an applicant has a disease or condition is to assess objectively whether a person who has such a disease or condition (see the reference to `... a person who has it ...' in paragraph (c)(i)) would be likely to require health care or community services or meet the medical criteria for the provision of a community service rather than to consider whether the particular applicant would be likely so to require the care or services or meet the criteria referred to in that subparagraph."

49. The opinion of the medical officer (Court Book 49) is relatively brief but clearly based upon other medical reports, particularly that supplied by the applicant, and says:

"In my opinion, this applicant fails to meet the above regulations for the following reasons:

The applicant is a person with moderate to severe intellectual disability. Ms Triandafillidou needs supervision and is not capable of independent living ... the above regulations apply to a person with this condition, ie, such a person would require health or community services during the period of proposed stay in Australia. Provision of health care or community services in a case such as this would be likely to result in a significant cost to the Australian community in the areas of health care and community services regardless of whether or not the health care or community services will actually be used. Therefore, the applicant does not meet public interest criterion 4005."

50. That report was dated 17 January 2003 and similar to an earlier report. The evidence provided by the clinical psychologist on behalf of the applicant dated 26 December 2002 was to certify that Ms Triandafillidou continues to show moderate to severe intellectual disability and that she would need supervision and care and was not capable of independent self-care.

51. The respondent contended that the report of the Commonwealth medical officer fulfilled the criteria required by the regulations; namely:

* It was an opinion by a Commonwealth medical officer.

* The subject was whether a person meets the public interest criteria of item 4005 in schedule 4 of the Migration Regulations.

* It addressed the requirement of the Regulations in effect at the relevant time.

52. The respondent contended that if those criteria are met, then the Minister's delegate must accept the opinion of the medical officer, which the minister's delegate had done, and accordingly there was no error in the decision.

53. In response to the decisions of Imad, Inguanti and Blair the applicant contended that Seligman was still good law, that there had been no appreciable changes to the criterion and effectively the single-judge decisions of Heerey and Carr JJ were wrong. The applicant continued to contend that there was a requirement that the medical officer or the minister or his delegate consider the subjective cost to the community of health care services to this particular applicant; that the medical officer had not done so and that, as in Seligman's case, as the Minister and/or his delegate had not done so either, that the criteria had not been met.

54. The applicant continued to contend that, as the Full Court said in Seligman's case, there was an internal inconsistency between the Regulation and the power to make the Regulation in section 505.

55. In my view, the applicant has missed the point of the relevant changes to the legislation since Seligman's case. In Seligman's case the Court found an internal inconsistency between Regulation 2.25B and found that it was not authorised by section 505. Regulation 2.25B no longer appears in the Regulations and this ground must therefore fail.

56. The applicant contends further that the slight change in wording in item 4005(1), particularly in subparagraph (c), makes no change to the meaning and that the meaning as applied by the Full Court in Seligman's case should apply; that is, it is still a subjective test as to whether the applicant's disease or condition would result in a significant cost to the Australian community. In my view, this argument must also fail.

57. I adopt and follow the reasoning of Heerey and Carr JJ in Imad, Inguanti and Blair, that the changes to 4005(1)(c) make it clear that it is now an objective consideration; that is, that the person whose health care or community service costs are being considered is a hypothetical person and not the particular applicant. That is clear, in my view, from the wording of subsection (c)(i):

the disease or condition is such that a person who has it would be likely to ...

58. It is also clear from the fact that Regulation 2.25B no longer applies. Previously Regulation 2.25B(b) required the medical officer of the Commonwealth to consider the person's need and eligibility for health care or community services without regard to whether that person would use the services. I do not accept the contentions of the applicant that the meaning of item 4005(1) has changed and follow the decisions in Imad, Inguanti and Blair as to the correct meaning. In particular, as Heerey J said in Imad at paragraph 13:

"... 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'."

59. Given the objective test applied, it is, in my view, clear that the opinion of the medical officer complies with the relevant requirements of the Regulations. It is an opinion of a medical officer of the Commonwealth. The subject of the opinion is whether the applicant meets the public interest criterion in item 4005.

60. It conveys the opinion that the applicant is a person with moderate to severe intellectual disability and is not capable of independent living. The report makes it clear that an objective test is applied:

"The above regulations apply to a person with this condition; that is, such a person would require health or community services during the period of proposed stay in Australia. Provision of health care or community services involved in such a case as this would be likely to result in a significant cost to the Australian community in the areas of health care and community services regardless of whether or not the health care or community services will actually be used."

61. Having met the relevant criterion, the Minister's delegate must then accept that opinion. There is no defect as contended by the applicant because there is no requirement to consider the costs of this particular applicant. The opinion is required to consider whether such a person as the applicant who had this disease or condition would have significant costs, and the opinion addresses that matter.

62. The medical officer has, therefore, considered the relevant criteria and the opinion, in my view, is not vitiated by error or law and thus the minister did not err in any respect when it took the opinion as being correct. It was obliged to do so by Regulation 2.25A(3). For the foregoing reasons there is no jurisdictional error demonstrated the application must be dismissed.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Bryant CFM