X v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 429 | Case summary

With some exceptions not presently relevant, reg 2.25A(1) relevantly provides that: (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), [and others]. (2) … (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." 3 A Review Medical Officer of the Commonwealth (RMOC) provided an opinion to the tribunal that the prosecutor did not meet the requirements of para 4005(c). The opinion was to the same effect as that which had been provided to the delegate. The text of the RMOC's opinion reads: Summary On 21st of November 2002 the primary Medical Officer of the Commonwealth provided an opinion that Mr [X] did not meet the prescribed health criteria. This was based on the information available at the time. Opinion of the Review Medical Officer of the Commonwealth: I have reviewed all the medical information provided. APPLICANT DOES NOT MEET HEALTH REQUIREMENT For a time limited stay of (see below) My opinion is based on available medical evidence and the proposed duration of stay sought in Australia. I have assessed the applicant against the Regulation set out at Schedule 4 of the Migration Regulations Regulation and Narrative [The opinion set out the text of paragraph 4005(c).] In my opinion, this applicant fails to meet the above regulation(s) for the following reasons: The applicant is a person who is infected with the Human Immunodeficiency Virus. He was originally under the care of the St. Vincent's Hospital (2000) and is currently attending The Alfred Hospital in Melbourne. He is required to undergo quarterly blood tests for monitoring of his disease and in order to keep his disease under clinical control he is also required to be maintained with antiretroviral treatment. The costs involved with managing his disease are outlined in Dr Mijch's report dated 14th of March 2003 [NB: see below.] During his proposed period of stay therefore he requires management of his condition which is at a significant ongoing cost. Serial Code(s) and Narrative: 99 Does not meet health requirement. Form 884 follows. 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, regardless of whether or not health care or community services will actually be used in connection with the applicant during the period of the applicant's proposed stay in Australia. A person with such a disease or condition would be likely to require health care or community services or would be likely to meet the medical criteria for the provision of a community service and provision of such health care or community services relating to the disease or condition would be likely to result in a significant cost to the Australian community in the areas of health care and community services, or prejudice the access of Australian citizens or permanent residents to, health care and community services. Therefore the applicant does not meet Public Interest Criterion(s): 4005." 4 The opinion makes reference to a report from Dr Mijch. That report, along with a report by the same physician in relation to the prosecutor's wife and reports in relation to the prosecutor and his wife by another physician, Dr Stanley, had been provided to the RMOC for her consideration. The RMOC did not personally examine the prosecutor but, as her opinion indicates, considered only the "associated reports" (inferentially, the reports by Drs Mijch and Stanley). Dr Mijch's report reads: "Mr [X] was seen by myself in outpatients on 17 February 2003. He is a [sic] HIV infected Zambian born man who is on a study visa completing a PhD. He is well, he currently maintains an undetectable plasma HIV viral load and a normal immune function (CD4 of 300 cells per μl) on combined Combivir and Indinavir. Mr [X] has had no illness relating to HIV. He is physically fit and he is maintaining his family, child and wife whilst studying in Australia. In relation to cost Mr [X] is having three monthly monitoring of immune function and viral load. The cost over a five year period will be $5,349. Table of costs of CD4 viral load, full blood and LFTs is as follows: Costs per quarter CD4 $ 87.30 Plasma HIV RNA $149.60 FBE $ 14.20 LFTs $ 16.35 Total $267.45

10 Before dealing with each ground in turn, it is convenient to make a preliminary observation about how the respondent approached this case. Both the tribunal and the respondent appear to have taken Carr J's third requirement (that the opinion be an opinion "on a matter referred to in sub-reg (1) or (2)") as merely requiring some broad connection between the subject-matter of the "opinion" and the subject-matter of the relevant conditions of the visa. That would be an erroneous view of Carr J's decision. The modest language Carr J used may tend to distract attention from the connection between that requirement and the requirement stated in Seligman (above) at 130 that the opinion be authorised: see also at 130; Bui v Minister for Immigration and Multicultural Affairs (1999) 85 FCR 134 at 149. This means that the opinion must be "on" or "about" the relevant visa condition in the sense that it addresses and does not go beyond the elements of the visa condition properly construed. Regulation 2.25A(1) requires the decision-maker to obtain the opinion of a Medical Officer of the Commonwealth, and so long as that opinion conforms to the relevant statutory criteria, reg 2.25A(3) requires the decision-maker to adhere to that opinion. The Medical Officer is in a sense the de facto decision-maker on the applicability to visa applicants of the statutory criteria, and the basic requirement that the opinion satisfies the terms of the regulation is no less applicable because the Medical Officer is not the same person as the ultimate decision-maker. This is not to say that any basic error of law is apparent in the tribunal's reasoning; it is clear that the tribunal understood the requirement enunciated in Seligman. However, it is to say that in assessing the validity of the opinion attention must always be paid to the meaning of the relevant regulation. 11 Ground (a) appears to assume that the "opinion" referred to in reg 2.25A and discussed in Seligman and Blair must be an opinion fairly based in the evidence before the Medical Officer. This assumption was not the subject of submissions from the applicant and only indirect comment from the respondent, and it need not be ruled upon in this case. I do note, however, that such an approach may impose a requirement going beyond the statement of principle by Carr J in Blair, in particular beyond the requirement that "[w]hat is provided must [be] an opinion". It is fair to say that what must be provided is an opinion which will be based on an evaluation of a body of evidence. It is obvious also that the evaluation must be undertaken with a proper understanding of what is required. However, it is not necessarily a requirement of reg 2.25A that the evaluation be per se rational, reasonable or free from mistakes of fact. On the other hand, if the opinion is irrational or unreasonable or is seriously mistaken about the facts then it is likely that the Medical Officer has fallen into an error of a jurisdictional kind, even if the error cannot be identified with precision. 12 In the prosectuor's written submissions it was said that "the only expert evidence [being the reports of Drs Mijch and Stanley] before the RMOC … on which it could form a conclusion regarding satisfaction of condition 4005 was completely one-way … in favour of the Prosectuor." The argument was that "the only conclusion that can be drawn in these circumstances is that the RMOC ignored the contents of the material and/or formed an opinion in an arbitrary and capricious manner". This is plainly incorrect. The RMOC stated that she had considered the reports of Drs Mijch and Stanley, and subsequently referred explicitly to the contents of Dr Mijch's report. I see no basis upon which to infer that the RMOC failed to consider the report - even if she was required to do so - or that she ignored Dr Mijch's statement of opinion reporting the likely costs of the applicant's treatment. I think that the mistake which the prosecutor makes is in proceeding upon the assumption that the only costs to which the Medical Officer had referred were those associated with the three monthly monitoring. But more of that later. 13 I will deal with grounds (b) and (d) together as they are closely connected as a matter of statutory construction. Each ground stems from the point, recognised by Heerey J in Imad v Minister for Immigration and Multicultural Affairs [2001] FCA 1011 at [13], that para 4005(c) does not require an assessment of all the peculiar circumstances of the applicant, but takes as its subject a hypothetical person with the disease or condition the applicant suffers. This is apparent from the terms of subpara 4005(c)(i) ("the disease or condition is such that a person who has it would be likely to" (emphasis added)). Moreover, as Heerey J also pointed out (at [13]), subpara (ii) does not involve a predictive assessment of the applicant's own circumstances, by virtue of the concluding words beginning with "regardless". The object of the criterion is not to assess the applicant's circumstances, but to assess the nature of the disease or condition in question, including by reference to the likely costs of treating it. Its purpose is chiefly to minimise strain on the resources of the Australian healthcare system, and indirectly, perhaps, also to protect public health. The prosecutor's submissions on the second ground correctly assume this. 14 Ground (d) assumes that the assessment required by the clause is not of an entirely hypothetical person with a certain disease, but "involve[s] consideration of the condition or disease of the nature or kind suffered by the applicant". The prosecutor says that the terms of sub-para 4005(c)(i), in particular "the disease or condition is such that…" (emphasis added), indicate that the decision-maker is required to take into account the nature and extent of the particular symptoms suffered by the prosecutor. In the prosecutor's submission, this would be the only sensible reading of the provision, being that "[t]here is obviously a wide range of symptomology and different levels of functioning for HIV sufferers". In my view, however, the respondent is correct in saying that para 4005(c) only requires the RMOC to focus upon the position of "a hypothetical person who suffers from HIV" since the terms of the provision focus upon the "disease or condition" generally, not upon the condition of a particular applicant or class of applicants. All the Medical Officer need do is provide an opinion about the likelihood of a hypothetical person with "the disease or condition" requiring health care or community services during the time of the prosecutor's stay in Australia, and about whether the likely cost to the community of those services would be "significant". The terms and purpose of the condition mandate no finer distinctions. 15 There is no basis for the conclusion that the RMOC failed to comply with these requirements. It is true that the opinion was expressed in imprecise language, but that is not enough to infer error. The RMOC observed first that the prosecutor was a person with HIV. She then observed that as a person with HIV he would in fact require "management of his condition which is at a significant ongoing cost". This should not be understood as misapplying the statutory criteria, but rather as suggesting that the present case is a typical example of that of a sufferer of HIV and of the type and cost of required treatment. The RMOC thus expressed an opinion that a sufferer of HIV would generally be likely to require health care of the kind and generally at the cost of that required by the applicant, and that that cost was significant. It is for that reason that HIV was a disease to which para 4005(c) applied. 16 Ground (c) has three limbs. First, it is put that the RMOC's opinion did not take into account the limited term of the applicant's stay in Australia when it was bound to do so. Subparagraph 4005(c)(i) asks whether the hypothetical HIV sufferer would be likely to require health care or community services "during the period of the applicant's stay in Australia". It is contended that the fact that the RMOC's opinion left blank the section that would have specified the length of the applicant's stay in Australia demonstrates that the RMOC failed to take the period of time into account. I reject this argument. The period of the prosecutor's proposed stay was discussed in the medical reports of Drs Mijch and Stanley. In particular Dr Mijch specified an estimated total cost for the applicant's quarterly monitoring over a period of five years. She also gave an estimate for that cost over a four-year period. Although there was inconsistency in the periods referred to by Dr Mijch (I was informed by counsel that the prosecutor's proposed stay would have been 2 years or so), I regard that difference as immaterial. In any case the RMOC's opinion explicitly noted that the period of stay was "temporary". This also disposes of ground (e). 17 The contentions about the prosecutor not being entitled to social security and being required to take out private health cover are also misconceived. As Heerey J noted in Imad (above) at [14], the prosecutor's financial means are irrelevant to the task of the RMOC, which deals with a hypothetical person suffering a disease or condition; other than suffering a particular disease or condition, the personal characteristics of the prosecutor are irrelevant. The terms "cost to the Australian community" provide no foundation for any distinction between persons in a position to claim reimbursement from public funds as distinct from private insurance institutions, nor for asking whether or not purchasing particular medication would result in an actual cost to the Commonwealth via the Pharmaceutical Benefits Scheme ("PBS") or otherwise. For the same reasons, ground (f) is not made out. 18 As the respondent submitted, ground (g) was particularised only very vaguely and not developed during the hearing. The prosecutor failed even to identify the policy that was said to have been applied inflexibly. There is nothing in the RMOC's opinion to suggest that any policy was applied without regard to the merits of the case. Rather, the material suggests that the only "policy" that may have been relevant in this case was not applied (as to this policy see below). 19 At the hearing I raised with counsel an additional issue. It is apparent that the prosecutor requires two forms of what might broadly be described as medical treatment - quarterly monitoring, and self-administered prescription medication. Although (as is discussed below) there can be no doubt that the former answers the description of "health care" for the purposes of subsubpara 4005(c)(i)(A), it is much less whether prescription and self-administration of pharmaceuticals amounts to "health care". The antiretroviral medication accounts for the bulk of the overall ongoing costs of the treatment the prosecutor requires. (Here I approach the case on the basis that the treatment of the prosecutor is a typical example of the treatment of an HIV sufferer in this position.) If I am satisfied that the RMOC took the provision and costs of antiretroviral medication into account, but the self-administered antiretrovirals do not amount to "health care" and the costs of the medication does not result from "provision of the health care", I would be bound to find that the RMOC's opinion was invalid for the purposes of reg 2.25A. If those costs were not to be taken into account, the question would arise whether the much smaller overall costs of the quarterly monitoring could answer the description of "significant cost". If it were not open to the RMOC to consider those costs to be "significant", then the case could effectively be disposed of in the prosecutor's favour. 20 It is worth briefly recapping some of the facts. Dr Mijch estimated the costs of monitoring the prosecutor's immune function and viral load to be $267.45 per session, repeated four times a year. (It seems likely that this monitoring process involves little more than taking a blood sample and submitting it to laboratory analysis.) By contrast, the estimated monthly cost of the antiretroviral medication was $1,188. On a monthly average the antiretroviral medication would cost the prosecutor some 13 times as much as the quarterly monitoring. In her report, Dr Mijch emphasised that the prosecutor pays for this medication personally, and described it as involving no cost "borne by the Australian health care system", apparently with reference to the fact that the prosecutor had private health insurance. Dr Mijch concluded her report by providing a total estimate of the cost of the quarterly monitoring over a four year period, being $4,279.20, which she described as the only costs that would be borne by the Australian health care system over the relevant period, which she described as an "insignificant cost" (Emphasis added). In the RMOC's written opinion, the key passage is this: "[The prosecutor] is required to undergo quarterly blood tests for monitoring of his disease and in order to keep his disease under clinical control he is also required to be maintained with antiretroviral treatment. The costs involved with managing his disease are outlined in Dr Mijch's report dated 14th of March 2003. During his proposed period of stay therefore he requires management of his condition which is at a significant ongoing cost." 21 It is apparent that the RMOC took into account the costs of both the quarterly monitoring and the antiretroviral medication, described together by the umbrella term "management of his condition". In supplementary written submissions the respondent appeared to accept this. Indeed, this is consistent with the RMOC not having taken into account the applicant's financial means and lack of private health cover, which Dr Mijch attempted to use to distinguish the medication from the monitoring. It is therefore necessary to consider whether prescription medication (self-administered in tablet form) can constitute "health care" for the purposes of para 4005(c). 22 It should be noted first that the term "health care" appears in subsubpara 4005(c)(i)(A) together with "community services", as it does in subsubpara 4005(c)(ii)(A). (It has not been contended that the provision of prescription medication is a "community service", nor that its cost amounts to "cost … in the area of community services".) Following the decision in Seligman (see the reasons for judgment of the Full Court (above) at 125-126 [41] and 131) a definition of the term "community services" was inserted into reg 1.03 of the Migration Regulations to confirm the effect of the Full Court's decision (disagreeing with the primary judge) that "services" extends to the payment of a disability-related pension. No corresponding definition of "health care" was inserted. The approach taken by the primary judge in Seligman would have treated the term "services" as importing an element of active personal attention or performance of duties (see in particular the discussion in Seligman (above) at 131). The same Full Court in Bui (above) at 145-146 also rejected a submission that the term "health care" indicated that "community services" should be read down in that way. I note that the Full Court did not in either case consider the meaning of the term "health care". While the Full Court rejected the submission that "services" had a narrow meaning, in part due to the purpose of the provision and the broad language in the remainder of the paragraph (such as "in the area of"), this provides no authority on the question whether "health care" extends to self-administered medication. 23 Rather, to my mind, these circumstances would tend to suggest that the term "health care" does have a more limited meaning than the term "community services". An element of personal attention is indispensable to the ordinary meaning of the word "care", even though it may not be essential to the term "service" which may denote the conferral of a benefit in a more remote and impersonal manner (such as by payment of a pension). The Full Court placed some weight on the phrase "in the area of" which at the time of the decisions in Seligman and Bui appeared in subpara 4005(c)(i). But sub-para 4005(c)(i) has been amended since those decisions: Migration Amendment Regulations 1999 (No 6) (Cth) sch 4 item 4401. That language now appears in sub sub-para 4005(c)(ii)(A). The two sub-para (i) and (ii) are separate and cumulative requirements of the visa condition. It is no longer the case that "significant cost to the Australian community" is the "governing element" of subparagraph (i) (cf Seligman (above) at 131). That concept still governs sub-para 4005(c)(ii), but there is now an anterior requirement that the disease or condition is such that a person who has it would be likely to "require health care or community services" during the period of the applicant's stay in Australia. That anterior requirement then governs the range of costs that can be taken into account for the purposes of subpara (ii), by virtue of the opening words of subpara (ii) "provision of the health care or community services relating to the disease or condition would be likely to [result in a significant cost]". Consequently, the terms "in the area of" should not be used to widen the meaning of the terms "health care or community services" where used in the preceding subparagraph. The question is whether "significant cost … in the area of health care or community services" is likely to result from the "provision of the health care or community services" that would likely be required by the disease sufferer during the period of the prosecutor's stay in Australia. 24 However that may be, I am satisfied that on a wide or ordinary construction, the term "health care" in subpara 4005(c)(i) imports an element of personal attention or activity by a provider of health care. The term is not apt to extend to the mere provision of prescription medication that is self-administered. Provision of that medication is separate and distinct from monitoring of an HIV sufferer's immune function and viral load. Only the latter appears to involve the necessary element of "care" or attention. Granted, the cost of medication may be a cost "in the area of" health care. But the question is whether that cost "results from" any relevant health care. In a sense, the monitoring of immune function and viral load is ancillary to the provision of the anti-retroviral medication. As Dr Mijch described it, the monitoring is "monitoring of [the HIV sufferer's] therapy". The monitoring, however, is not likely to result in the prescription of medication. Rather, the former results from the latter. No doubt in some cases monitoring may reveal a change in the HIV sufferer's immune function and viral load, with the result that a change and perhaps an increase in medication is necessary, possibly with an increased cost. However, the intended effect of the medication is to prevent this occurring. For that reason it cannot be said that the monitoring would be "likely" to result in any cost to the community by virtue of the prescription of antiretroviral medication. The costs of the anti-retroviral medication a hypothetical HIV sufferer would be likely to require therefore cannot be taken into account in assessing whether the provision of "health care" would be likely to result in a significant cost to the Australian community. On this view the RMOC's opinion was invalid for the purposes of reg 2.25A. 25 It may be that the very fact that the medication cannot be taken into account suggests that the RMOC's opinion should be "read down" and treated as not having taken the costs of the medication into account. In that event, the question arises whether the cost of the quarterly monitoring can amount to "significant cost". The RMOC did not deal with this issue. The tribunal simply treated the question of significant cost as one of fact upon which reasonable minds may differ. But in my view it is necessary still to ask whether the statutory concept of "significant cost" was capable of application in this case. 26 As the tribunal said, the term is undefined in the legislation. Nevertheless the concept can be given content by reference to the statutory context. The term appears in sub sub-para 4005(c)(ii)(A). That sub sub-para is an alternative criterion to subsubpara (B), which asks whether provision of the health care would be likely to "prejudice the access of an Australian citizen or permanent resident to health care or community services". The primary object of para 4005(c) is to preserve the resources of the Australian health care system. (Of course, this object operates in conjunction with the objective of protecting public health, but the latter is more directly given effect by para 4005(b).) The health care system operates to provide services not merely to lawful non-citizens, but to everyone within Australia. The health care system is, in a very real sense, a shared resource. That this is a key concern of para 4005(c) is demonstrated by sub sub-para 4005(c)(ii)(B). What is a "significant cost" can often, but of course not always, be ascertained by a form of comparative exercise. This involves making a judgment about whether the cost is significant relative to the cost to the Australian community that an ordinary Australian could be expected to incur during the relevant time. Such an exercise does not necessarily involve analysis of statistical information or of the financial records of likely healthcare providers, although as Procedures Advice Manual 3 suggests that may be a useful factor for the Medical Officer to take into account. It may well be that a "significant cost" is one which falls short of the respondent's PAM3's suggested criterion of 50% above the average per capita cost of health services. For example, it might be fair to treat a cost somewhere close to the average per capita cost as being "significant" since that might be seen as impacting upon the resources of the health system available to other users of that system. 27 It is apparent on the material before the tribunal that the quarterly monitoring the prosecutor receives could not be regarded as "significant" under this analysis. Rather, such costs would be well within - indeed, close to the lower end of - the range of costs in the area of health care that any ordinary Australian might expect to incur. I cannot contemplate the possibility that a cost as small as this could be treated as impacting in any way upon the resources of the health care system. In my view, if the RMOC had formed the opinion that the likely cost of quarterly monitoring was "significant", that opinion would be invalid. 28 For these reasons the tribunal erred in accepting the opinion of the RMOC as binding for the purposes of reg 2.25A. This error is of a jurisdictional nature sufficient to overturn the tribunal's decision. I will set aside that decision and order that the matter be remitted to the tribunal for determination according to law. The prosecutor will have his costs of this application. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.

X v Minister for Immigration and Multicultural and Indigenous Affairs

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