FEDERAL COURT OF AUSTRALIA

Dang v Administrative Appeals Tribunal [2019] FCAFC 220

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    Orders 2 and 3 made by the Federal Circuit Court on 27 February 2019 be set aside.

3.    The matter be remitted to the Administrative Appeals Tribunal for determination according to law.

4.    The second respondent pay the appellant's costs of the proceedings before the Federal Circuit Court and of this appeal to be assessed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

KERR J:

1    I have been provided with the reasons of Colvin and Jackson JJ in draft. I agree with and adopt their Honours' reasons for concluding that the third ground of appeal must be upheld. I also agree generally with the plurality's reasoning with respect to grounds one and two. However, I would respectfully express one reservation in those regards.

2    Their Honours in addressing those grounds, in my view correctly, proceed on the basis that the burden of proof of satisfying a court on judicial review of any claimed insufficiency of a diagnosis as would require a tribunal not to take the "opinion of the Medical Officer … to be correct for the purposes of deciding whether a person meets a requirement or satisfies a criterion" falls on an applicant.

3    My reservation is with how that burden of proof might be discharged.

4    The plurality state at [47] of their Honours' reasons:

… There was no evidence upon which the primary judge could reach that view. For example, there was no evidence as to whether that description has a specific, well understood meaning within the field of medicine or whether the form of words might be sufficiently particular in its ordinary meaning for the test to be applied. Nor was leave sought to introduce evidence to support conclusions as to such matters on the appeal. Without evidence of that kind, the Court is not in a position to find that the description was insufficiently particular to enable the Medical Officer to perform the statutory function of forming an opinion of the required kind.

5    Insofar as one reading of that passage might suggest that a review applicant's burden of proof can only be discharged if the applicant adduces contrary evidence, perhaps even expert medical evidence, in my respectful view that is not the true position.

6    If a statement of a Medical Officer's opinion is facially deficient by reason of its generality or for some other reason, there is no warrant for a tribunal (or a court on review of a tribunal's decision) to refrain from concluding that there has been a failure by the Medical Officer to conform to the requirements of cl 4007 of Sch 4 to the Migration Regulations 1994 (Cth) (Regulations). A tribunal's failure to draw that inference when it properly ought to have done so will constitute legal error: Minister for Immigration & Multicultural Affairs v Seligman [1999] FCA 117; (1999) 85 FCR 115 [66]; Robinson v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1626; (2005) 148 FCR 182.

7    To the extent that the reasons of the plurality might suggest that a tribunal exercising merits review of a decision such as was the subject of this appeal is obliged to proceed on the basis that the opinion of a Medical Officer will be binding on it unless an applicant adduces evidence to put that in dispute, I would respectfully differ.

8    It remains for the Tribunal to satisfy itself that any opinion of a Medical Officer is one that the law recognises as binding upon it. If the words used by a Medical Officer when expressing his or her opinion appear to the Tribunal to lack sufficient particularity to satisfy the requirements of the Regulations, then in my view the Tribunal cannot proceed on the basis that the Medical Officer's opinion is binding on it.

9    If a tribunal has a significant doubt as to the validity of an opinion that would otherwise bind it, then it may make any necessary enquiries. It is entitled to expect the decision-maker to assist it in that regard: Administrative Appeals Tribunal Act 1975 (Cth) ss 33(1)(c), 33(1AA).

10    In Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 a plurality of a Full Court of this Court (Black CJ, von Dousa, Sundberg and Mansfield JJ) allowed that while there was no general rule that a Tribunal was under a duty to make inquiries, particular circumstances might arise such that in order to discharge its review function the Tribunal was obliged to do so.

11    Because no argument was addressed to the scope of the Tribunal's inquisitorial powers and whether it might have been legally unreasonable for those powers not to have been exercised in the present case, it is inappropriate to explore that question further. Any questions in that regard as might arise in the remitted proceeding are not material to this appeal.

12    I would join Colvin and Jackson JJ in the orders they propose.

Associate:

Dated:    11 December 2019

REASONS FOR JUDGMENT

COLVIN AND JACKSON JJ:

13    In some cases, an applicant for a visa to enter Australia must undertake a medical assessment by a Medical Officer of the Commonwealth. The matters that may be the subject of the assessment are to be found in cl 4007 of Schedule 4 of the Migration Regulations 1994 (Cth) (Regulations). They include a requirement that the person 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 (1A); 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

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

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

14    The Minister 'is to take the opinion of the Medical Officer … to be correct for the purposes of deciding whether a person meets a requirement or satisfies a criterion': reg 2.25A of the Regulations.

15    Relevantly for present purposes, the Minister may waive these requirements if satisfied that the grant of the visa 'would be unlikely to result in: (i) undue cost to the Australian community; or (ii) undue prejudice to the access to health care or community services of an Australian citizen or permanent resident': see cl 4007(2)(b).

16    The present appeal concerns the way in which these provisions apply to the circumstances of Ms Thi Kim Ly Dang and her son, who has Down syndrome. Visa applications by Ms Dang, her husband and her son required satisfaction of the health criteria in cl 4007. The applications were refused by a delegate of the Minister on the basis of a failure by her son to meet those criteria.

17    The family applied to the Administrative Appeals Tribunal to review the Minister's decision. The Tribunal affirmed the decision not to grant them visas.

18    Ms Dang as the principal visa applicant then brought an application in the Federal Circuit Court to review the Tribunal's decision on the basis of alleged jurisdictional error. The application was dismissed and Ms Dang now brings an appeal.

Grounds of appeal

19    The grounds of appeal allege error by the primary judge in failing to make findings to the following effect:

(1)    the assessment undertaken by the Medical Officer did not sufficiently identify the specific nature and extent of the condition of Ms Dang's son with the consequence that the officer's opinion was not of the required kind and therefore should not have been treated as correct by the Tribunal;

(2)    the assessment of the Medical Officer was undertaken by reference to medical information that was not sufficiently current; and

(3)    the process in the Tribunal was procedurally unfair because there was no disclosure that the Minister had issued a certificate under s 375A of the Migration Act 1958 (Cth) (Certificate) preventing access to the information that had been used to determine the costs to the Australian community that were said to be likely for a person with the same condition as Ms Dang's son.

20    The appeal is brought on the basis that any of the above findings would demonstrate jurisdictional error in the Tribunal's decision. On that premise, it was contended that the primary judge had erred in failing to set aside the decision of the Tribunal.

Summary of decision

21    For the following reasons, the third ground (numbered 4 in the notice of appeal) should be upheld, but the other grounds have not been established. The appeal should be allowed, the decision of the primary judge should be set aside and instead there should be orders setting aside the decision of the Tribunal and remitting the matter for determination according to law.

The criteria in cl 4007

22    The grounds of appeal raise questions the resolution of which depends upon the proper interpretation of the applicable provisions in the Regulations. Therefore, it is convenient to deal with those questions before dealing with the grounds.

23    The terms in which cl 4007(1)(c) are now expressed were previously to be found in cl 4005. In Robinson v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1626; (2005) 148 FCR 182, it was held by Siopis J that the language used requires the Medical Officer to form an opinion by ascertaining the form or level of condition suffered by a visa applicant and then applying the statutory criteria by reference to an hypothetical person who suffers from that form or level of condition: at [43]. His Honour reasoned to that conclusion on the basis of earlier authorities and the scheme of the clause as a whole which was found to support a case by case assessment rather than a general approach for all persons with a particular condition.

24    The decision in Robinson also concerned a person with Down syndrome. In that case, solicitors for the applicant had presented expert evidence to the Tribunal to the effect that (a) the applicant's communication was excellent and there was no reason for requiring extra medical services, although his parents could consider speech therapy; and (b) when the applicant finished school he should have the skills to undertake productive work. When that evidence was received, the Tribunal then requested a further report from the Medical Officer. An opinion was forthcoming which said:

The applicant is a person intellectual impairment [sic] and speech disorder associated with Down's syndrome. He currently requires special education support and is likely to require further special education and allied therapies support in the future. It is considered unlikely that he would be capable of open employment as an adult, and thus would be likely to be eligible for use of income and community support services.

25    At a subsequent Tribunal hearing, it was submitted that the Tribunal was not bound to accept the opinion of the Medical Officer because it did not conform to the requirements of the Regulations. It was submitted that instead of assessing the specific nature and extent of the applicant's condition, the Medical Officer had misconceived his task and had made a general assessment on the basis of a person suffering from Down syndrome without regard to the particular manifestation of the condition in the case of the applicant.

26    The Tribunal found that it was bound to proceed on the basis that the opinion of the Medical Officer was correct. In that context, Siopis J found there was a failure by the Medical Officer to assess the specific nature and extent of the applicant's actual condition and therefore the officer's opinion did not conform to the requirements of the Regulations. As a result, the Tribunal was found to have made an error of law which had precluded it from exercising its jurisdiction according to law. This was found to be jurisdictional error.

27    The reasoning in Robinson to the effect that there was an error of law in acting upon the opinion of a Medical Officer that did not conform to the requirements of the Regulations was based upon the earlier decision in Minister for Immigration & Multicultural Affairs v Seligman [1999] FCA 117; (1999) 85 FCR 115. In Seligman the Court was dealing with review provisions in the Migration Act that have since been repealed. At that time, s 476 of the Migration Act provided for review of certain decisions for error of law. In that context, the Court (French, North and Merkel JJ) said at [66]:

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.

28    It is possible that the validity of the Tribunal's decision may not be dependent upon the opinion of a Medical Officer that conforms to the requirements of cl 4007 in every respect. The question is whether, as a matter of statutory construction, the statutory purpose of the requirement (in this case the formation of the opinion in accordance with the requirements of cl 4007) would be advanced by holding an exercise of decision-making power affected by breach of that provision to be invalid: Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 262 CLR 510 at [83]-[90] (Kiefel CJ, Bell, Gageler, and Keane JJ). Further, statutes which require a condition to be observed in the course of a decision-making process are not ordinarily interpreted as denying legal force and effect to every decision that might be made in breach of the condition. Rather, there is a threshold of materiality that must be reached before there is invalidity. Ordinarily, a breach of a condition of the exercise of statutory power cannot be material unless compliance could have resulted in the making of a different decision: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [29]-[31] (Kiefel CJ, Gageler and Keane JJ). Materiality is thus essential to the existence of jurisdictional error: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [45] (Bell, Gageler and Keane JJ).

29    Nevertheless, since Robinson the reasoning in Seligman has been applied to reach a conclusion that in such instances there is a misunderstanding of the statutory task of a kind that involves jurisdictional error: Perez v Minister for Immigration and Border Protection [2017] FCAFC 180 at [9] (Besanko, McKerracher and Jagot JJ). The Court was not invited to reconsider this aspect, as the submissions for both parties proceeded on the basis that there would be jurisdictional error if there was a failure by the Medical Officer to conform to the requirements of cl 4007 as explained in Robinson. The position of the Minister was that the opinion by the Medical Officer conformed to those requirements.

30    In Robinson, and in the present case, the specified opinion was not formed by reference to a detailed calculation of the actual cost and consequences for access to services. It seems unlikely that expertise as a medical practitioner would inform or qualify the Medical Officer as to the making of an assessment of that kind. 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 medical practitioner may be able to form a view, based upon medical expertise, as to the likely prognosis and consequently 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. Based on that general assessment, perhaps aided by inquiry, the practitioner will then be able to make an informed judgment as whether the cost of providing that level of services will likely be significant and also whether the services are readily available (such that additional demand might prove difficult to meet without prejudicing access to the same service by an Australian citizen or permanent resident).

31    It would be expected that a medical practitioner forming such an opinion would draw principally upon the likely prognosis and the general level of understanding that a medical practitioner would have of the types of services that the person is likely to require and for how long.

32    As was said in Seligman at [53]:

The issue raised by subparas (c)(i) and (c)(ii) will also involve matters of medical judgment about the nature of the disease or condition which is identified. Whether a disease or condition has characteristics that require ongoing health care or support services for the person suffering from it is a matter of medical judgment. And in a broad sense a medical practitioner can assess whether the provisions of such health care or support services involves a significant cost. Indeed the use of the word 'areas' in the collocation 'areas of health care or community services' suggests a judgment about the nature of the disease or condition rather than an attempt to relate it to precise health care provisions or particular community services.

33    A medical practitioner will not be equipped by training to undertake a detailed economic assessment of the lifetime of cost that may be expected expressed in dollar terms. Indeed, the future uncertainties associated with changes in models of care and methods of treatment as well as the drugs and other therapies that are available would mean that an assessment quantified in such a way would be impossible to undertake in any meaningful way. If it were assayed, then the result would be relatively meaningless.

34    For both those reasons, an assessment by some form of calculation of likely cost is not indicated by the language used in criterion 4007(1)(c)(ii). Rather, it requires a medical judgment as to the prognosis attendant with a condition of the kind experienced by the visa applicant. Then, based on that prognosis and a general understanding of the available heath and community services, a medical opinion is to be formed as to whether the prognosis is likely to mean there will be significant cost in providing services for that person or prejudice to access by others for those services (for example, because they are not readily available).

35    Then and only then will such an opinion be one which the Minister must take as correct for the purposes of deciding whether the person satisfies the criterion. The opinion to be given is to the effect that a person is free from a disease or condition of the kind described. Such an opinion only exists if it is formed in accordance with the relevant requirements, in this case those stated in cl 4007(1)(c).

36    Finally, an issue arises as to whether the Minister (and the Tribunal standing in the shoes of the Minister on review) must treat the opinion of the Medical Officer as correct when undertaking the task of considering whether to waive the requirements of cl 4007(1)(c). Importantly, reg 2.25A(1) requires the Minister to seek the opinion of the Medical Officer on whether a person meets the requirements of certain of the criteria specified in Schedule 4. The list in reg 2.25A(1) includes cl 4007(1)(c), but not cl 4007(2). Then, as noted above, reg 2.25A(3) provides that the Minister is to take the opinion of the Medical Officer on a matter referred to in reg 2.25A(1) to be correct 'for the purposes of whether a person meets a requirement or satisfies a criterion'.

37    The power conferred by cl 4007(2) is a power to waive the requirements of cl 4007(1)(c). It is dependent upon the Minister's satisfaction that the granting of the visa would be unlikely to result in undue cost to the Australian community or undue prejudice to access to services by Australian citizens and permanent residents. Expressed in those terms, it requires consideration of the particular circumstances of the applicant, not the circumstances of an hypothetical person or a general assessment of what would usually be the case for a person with the relevant type of condition. Therefore, the test is different to that to be applied under cl 4007(1)(c). It will encompass whether the applicant is likely to be provided with certain of the services privately, such as through private schooling or therapies paid for without any cost to the community. It presupposes that the requirement the subject of the opinion of the Medical Officer is not met and then directs the Minister to undertake a different form of inquiry.

38    In the above circumstances, the Minister is not required to take the opinion of the Medical Officer to be correct for the purpose of considering whether to exercise the power to waive. To the extent that there is to be a consideration of cost or use of services then it must be undertaken by reference to the particular circumstances of the applicant. The Minister (or the Tribunal on review) must undertake that assessment by reference to all of the available material. It may be expected that given the nature of the inquiry to be undertaken, the opinion of the Medical Officer, though relevant, will be given weight that reflects its character. In any event, for reasons already given, the opinion of the Medical Officer concerning the requirements of cl 4007(1)(c) would not extend to any calculation of the likely cost to be incurred in providing services required by the applicant.

Ground (1): Insufficient particularity in description of the condition by Medical Officer

39    In order for the opinion by the Medical Officer to conform to the requirements of cl 4007(1)(c) it must relate to the form or level of condition experienced by the applicant in question. No doubt in some cases the nature of the condition is such that all people with the condition have a similar experience and require similar health and community services. For other conditions, the experience may be quite diverse. The decision in Robinson exposes the need for the Medical Officer to form the opinion as to the likely provision of health and community services by reference to an hypothetical person with the relevant form or level of condition. The degree of particularity required will depend upon the extent to which there is diversity in the experience for those with the particular type of condition. That is to say, it is purposive and informed by the nature of the opinion that the Medical Officer is required to form.

40    Therefore, it is not possible to describe the degree of particularity that is required in all cases in order for the opinion to be formed in accordance with the requirements of cl 4007(1)(c). All will depend upon the type of condition. The greater the variation in life experience for people with the condition the more detailed the required understanding of the applicant's condition before considering the services that might be required by a person within that category of persons with the particular condition.

41    Significantly, in Robinson Siopis J did not conclude that the level of particularity on which the opinion of the Medical Officer was based in that case was insufficient. Rather, his Honour found that the Tribunal proceeded on an incorrect understanding of the law as to the circumstances in which the opinion would be binding on the Tribunal as being correct. This is evident from the part of his Honour's reasons concerned with discretion. In particular at [63] his Honour said:

… it is my view that the jurisdictional error of the Tribunal was one which could possibly have deprived the applicant of a successful outcome to the application. It is at least possible that a Tribunal, acting according to law, would have concluded that the [Medical Officer] had not, in providing his opinion, applied the appropriate test. There is no reference by the [Medical Officer] in the letter of the need to assess the statutory criteria in public interest criterion 4005(c) by reference to a hypothetical person who had the actual level of D's condition. The letter does contain some statements which purport to describe D's condition but the statements are at such a high level of generality that they could be taken as being descriptive of the condition of persons suffering from Down's Syndrome generally. Importantly, there is no recognition in the letter that the [Medical Officer] regarded as relevant the fact that the level of D's condition was described by Dr Silva as 'mild'. Nor, is there any specific reference in the opinion to the contents of the reports furnished by the applicant, notwithstanding that in its letter of 2 August 2004 the Tribunal asked the [Medical Officer] to identify in his opinion the materials he considered, and to express his reasons for any disagreement with the information in the materials. I do not regard the fact that the [Medical Officer] recommended the application for Ministerial intervention [by exercise of the power to waive] as indicative of the [Medical Officer] having applied the appropriate test. That comment is equally consistent with the [Medical Officer] having applied the generalised approach.

42    Therefore, his Honour expressed no concluded view as to whether the Medical Officer acted upon an appropriate level of particularity. Rather, his Honour found that the Tribunal applied the wrong view of what the Medical Officer was required to do in forming his opinion. As it was possible that the Tribunal, applying the correct approach, may have concluded that the Medical Officer's opinion was based upon too generalised a view, then that was sufficient to support the grant of relief. Whether this was properly to identify jurisdictional error by the Tribunal on the basis that it gave effect to an opinion of the Medical Officer that did not conform to the requirements of cl 4007(1)(c) is not a matter that we need to consider. What it does reveal is that it is not apt to reason from the degree of specificity used by the Medical Officer to describe the nature of the condition in Robinson to a conclusion as to what is required in all cases concerned with Down syndrome, and even less so in cases concerned with other conditions.

43    Importantly, the opinion of the Medical Officer in the present case was informed by the approach as expounded in Robinson. It adverted specifically to that test. It was dated 20 July 2015 and was expressed in the following terms:

The applicant [Ms Dang's son] has been assessed against Public Interest Criterion (PIC) 4007 [see attached extract] for the period of a permanent stay in Australia.

The applicant does not satisfy sub-subparagraph PIC 4007(1)(c)(ii)(A) in Schedule 4 to the Migration Regulations.

The applicant is a 11 year old person with:

- Moderate intellectual impairment

Form and severity of the applicant's condition: the applicant has moderate intellectual impairment due to Down's Syndrome. 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 applicant's condition, at the same severity, would be likely to be eligible for long term community support services including special education as a child and living assistance as an adult. 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:

Commonwealth disability services

State disability services

Special education services

Commonwealth disability services

State disability services

Residential care services

Commonwealth 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.

44    The opinion then listed the reports to which the Medical Officer had regard in preparing the opinion.

45    In those circumstances, the Medical Officer proceeded on a correct understanding of the test to be applied. The submission advanced for Ms Dang was, in effect, that the Medical Officer did not apply the test as stated in Robinson. The submission was based upon the terms of the Medical Officer's opinion which referred only to the applicant being a person with moderate intellectual impairment.

46    It was submitted that this was insufficient to meet the requirement that the opinion be prepared by reference to a person with the 'form or level of condition' experienced by Ms Dang's son. However, there was no evidence before the Court to the effect that the description of moderate intellectual impairment was insufficient to differentiate between the range of people with Down syndrome for the purpose of undertaking the statutory task. Where there is a need to establish a factual matter in order to demonstrate jurisdictional error then the applicant bears the onus of proof: SZMTA at [46] (Bell, Gageler and Keane JJ) and BVD17 v Minister for Immigration and Border Protection [2019] HCA 34 at [38] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ).

47    The fact to be established in this case was that a description of the form and severity of the applicant's condition as a person with Down syndrome as being an 11 year old with moderate intellectual impairment was not sufficiently particular to enable the Medical Officer to perform the statutory function of forming an opinion as to the general extent of health care or community services likely to be required by a person with the same form and level of condition as Ms Dang's son. As the Medical Officer stated and applied the correct test, it was necessary to show, in effect, that the test could not be applied by reference to the description 'moderate intellectual impairment'. There was no evidence upon which the primary judge could reach that view. For example, there was no evidence as to whether that description has a specific, well understood meaning within the field of medicine or whether the form of words might be sufficiently particular in its ordinary meaning for the test to be applied. Nor was leave sought to introduce evidence to support conclusions as to such matters on the appeal. Without evidence of that kind, the Court is not in a position to find that the description was insufficiently particular to enable the Medical Officer to perform the statutory function of forming an opinion of the required kind.

48    Having regard to (a) the nature of the assessment to be undertaken; (b) the express reference to the appropriate test; and (c) the formation of the required opinion on the basis of the described 'severity' of the condition experienced by Ms Dang's son, it has not been shown that the opinion was not of the kind required by cl 4007(1)(c). Significantly, the Medical Officer considered that it was possible to form the required opinion on the basis of the identified severity of the condition in the case of Ms Dang's son.

49    In order to demonstrate jurisdictional error, the appellant must show there has been a failure by the Medical Officer to perform the statutory task and that nevertheless the Tribunal treated the opinion as one which it was required to accept as correct. The thrust of the submissions advanced for Ms Dang was to criticise the failure to advert to the more detailed evidence concerning Ms Dang's son. However, it was not explained why that more detailed description was necessary in order to form the required view as to likely use of services. Once it is understood that the statutory task did not require a detailed calculation, but rather an identification in broad terms of the nature of the services likely to be required, then the terms in which the opinion of the Medical Officer is expressed do not manifest a misunderstanding of the required task. In the absence of expert evidence as to why a more detailed description of the particular level of severity of the expression of the condition is required to undertake the task, jurisdictional error in the terms contended for by ground 1 has not been demonstrated.

50    It follows that the primary judge was not in error in rejecting that ground of review.

Ground (2): Information relied upon by Medical Officer not current

51    It has been held that a decision made by treating as correct an opinion of a Medical Officer that was not current involved jurisdictional error: Applicant Y v Minister for Immigration and Citizenship [2008] FCA 367. However, in that case, Tamberlin J was dealing with the currency of the opinion itself, not the material on which it was based. His Honour expressed that view in the following terms at [21]-[24]:

In my view, the circumstances in this case demonstrate that the Tribunal fell into jurisdictional error when it took the [Medical Officer's] opinion as correct because, applying the Full Court's statement in Seligman ... that opinion could not be said to address whether the requirements in par 4007(1)(c) were satisfied at the time of the Tribunal's decision. Three considerations lead me to this conclusion.

First, the lapse in time in this case between the date of the [Medical Officer's] opinion and the rendering of the Tribunal's decision was almost two years. Although such a delay may not be uncommon or excessive in many visa and judicial review applications, two years can be a long period in which an individual's health may improve or deteriorate significantly. Consideration of an outdated report could be unacceptable because the Tribunal, pursuant to its obligation under reg 2.25A(3), will act on a report which cannot be said to be a full and proper assessment of the applicant's health or the cost of treatment at the time the Tribunal's decision was made. In other words, the Tribunal, by consulting an out of date report, risks taking into account irrelevant considerations, namely, information and medical opinions which no longer apply to an applicant. In my view, these observations apply to the lapse in time between the issue of the [Medical Officer's] report and the making of the Tribunal's decision in this case.

Secondly, in this case the evidence of improvement in the appellant's health over the 23 month period prior to the Tribunal's decision appears to have been significant …

Thirdly, there is substantial disagreement between the medical opinions of Dr Chen and the opinion of the [Medical Officer] … Dr Chen's reports … [cast] doubt on the currency and reliability of the [Medical Officer's] assessment of the appellant's medical condition and the cost of her treatment, and supports a conclusion that the [Medical Officer's] report does not address the appellant's satisfaction or lack of satisfaction of par 4007(1)(c) at the time of the Tribunal's decision.

52    The opinion of the Medical Officer in the present case did not lack currency in the manner described in Applicant Y. Rather, the submission advanced was that it was based on reports that were not current and did not involve a personal examination. As to the latter, it was accepted that a personal examination was not required, but its absence was advanced as a matter that meant the opinion could only be as current as the reports on which it was based.

53    A number of the reports referred to by the Medical Officer described Ms Dang's son as having a moderate intellectual disability associated with Down syndrome. They included a report from a general practitioner who had seen him twice for minor ailments in a two year period up to 7 April 2014 (the date of the report). It described the condition of Ms Dang's son as being 'not severe' and the impact of his condition on day to day tasks as being 'currently small and… likely to remain the same in the future'. There was a further report from a general paediatrician dated 6 February 2015 also describing Ms Dang's son as having 'Down Syndrome with associated moderate intellectual disability'. It expressed support for his visa application 'as he has very low need for medical intervention and only requires occasional surveillance'.

54    The Medical Officer's report was dated 20 July 2015. An opportunity to comment on the report was afforded by the Tribunal. The Tribunal's decision was made on 26 October 2015.

55    The difficulty with the submission is that there was no real indication in the material that the condition of Ms Dang's son was changing (as was the case in Applicant Y). On the contrary, the reports consistently describe his condition in the same terms as that used by the Medical Officer, namely as a person with Down syndrome with an associated moderate intellectual disability. Some reports contained reference to progress or gains in development. But the language used to describe the nature of his condition was consistently stated in similar terms. True it is that some of those reports indicate different views as to future requirements for health and community services. However, that is a matter that the Migration Act and the Regulations entrust to the Medical Officer for assessment. Otherwise, there was no basis to suggest that the Medical Officer acted on a view of the relevant medical condition that was out of date. Therefore, ground 2 has not been made out and there was no error by the primary judge in rejecting that ground of review.

Ground (3): Non-disclosure of Certificate

56    In addition to the opinion set out above, the Medical Officer provided a separate report (July Report). It began by referring to the earlier opinion as assessing that Ms Dang's son did not meet the 'health requirement', being the requirement expressed in cl 4007(1)(c). It stated that the opinion was provided for the purposes of considering a waiver of cl 4007(1)(c). It then said:

Likely cost to the Australian community

In my opinion, the estimated cost to the Australian community of the services identified in the 884 is likely to be:

Likely Prejudice to Access

In my opinion, granting a visa to the above applicant for the assessed period of stay would not be likely to prejudice the access of an Australian citizen or permanent resident to health care or community services.

57    There was no other detail from which to discern the manner in which the calculation of the amount of $3,253,216 had been undertaken.

58    Unbeknown to the applicants before the Tribunal, the Minister had issued the Certificate. The fact that the Certificate was before the Tribunal was not disclosed to the applicants. The information covered by the Certificate formed the basis for the preparation of a table of the same kind as that set out above that had been included in an earlier report in the same format as the July Report. The earlier report was dated 29 January 2014 and contained figures in respect of each of the same services, summed to a total cost of $2,737,860 (January Report).

59    The information the subject of the Certificate was before the primary judge. It included the following breakdown of costs:

Condition

intellectual impairment

Severity

Moderate

Outcome

Permanent

Comments

The condition is such that a person thus affected would require supported education (special developmental school), disability services and supervision/assistance with activities of daily living

Significant Cost

General Comments

Reference - Disability Notes for Guidance June 2012

Estimated total cost $2,737,860

Breakdown

Special education services - $22,250 X 8.0 years = $178,000

Comments

-

Breakdown

Commonwealth disability services - $18,078 X 28.0 years = $506,184

Comments

Carer Payment age 12-40

Breakdown

Commonwealth disability services - $9,854 X 1.0 years = $9,854

Comments

DSP (age 20)

Breakdown

Commonwealth disability services - $18,078 X 38.0 years = $686,964

Comments

DSP to age 21-58 incl

Breakdown

State disability services - $30,000 X 30 years = $900,000

Comments

State disability services age 10-40

Breakdown

Residential care services - $25,381 x 18.0 years = $456,858

Comments

RLC age 41-58 incl

60    The breakdown was followed by a brief description of matters that had been brought to account by the person who prepared the breakdown (who was not the Medical Officer). It dealt with matters that were of a kind that the Tribunal was required to evaluate in considering whether to exercise the power to waive the requirement in cl 4007(1)(c).

61    As the July Report adopted precisely the same format as the earlier January Report it may be readily inferred that there was a similar form of breakdown that related to the July Report. However, no such breakdown was before the primary judge and it was not said to be the subject of a separate certificate. Counsel for the Minister could not explain why that was so.

62    Therefore, the position before the primary judge was that the breakdown for the figures stated in the January Report had been the subject of the Certificate (and therefore not provided to Ms Dang and her family), but it was the July Report that was relied upon by the Tribunal. What was plain was that the Tribunal proceeded by reference to the July Report but did not provide the breakdown information to the applicants before the Tribunal. As to the older breakdown, there was the Certificate. As to the breakdown for the July Report, it appeared that the material was simply not provided.

63    The Tribunal relied upon the figures in the July Report in the following way (para 40):

On balance, the Tribunal is not satisfied that the granting of the visa would be unlikely to result in undue cost to the Australian community. The [Medical Officer] opinion has indicated the costs are $3.2 million over [Ms Dang's son's] lifetime. [Ms Dang's son's] condition of Down Syndrome is a lifelong condition and the moderate intellectual disability will continue throughout [Ms Dang's son's] life time. The Australian community is already bearing costs associated with this condition with the additional assistance provided to [Ms Dang's son] at school and he has a further 7 years of schooling where costs will continue to be incurred. Thereafter it is apparent that [Ms Dang's son] will access other community supports such as supported employment organisations and is highly likely to require community supports at the time [Ms Dang's son's] parents pass away.

64    The primary judge was 'concerned' by these matters: Dang v Administrative Appeals Tribunal [2019] FCCA 586 at [73]. However, his Honour then proceeded on the basis of a particular view of the then recent decision of the High Court in SZMTA concerning the materiality of a failure to meet a statutory requirement that must be demonstrated in order for there to be jurisdictional error. Necessarily implicit in this approach was a recognition that if the failure was material then there was jurisdictional error. As to the decision in SZMTA, his Honour said at [76]-[77]:

It seems to me that the High Court is telling Courts at my level that what we have to consider is whether the disclosure of this information would have made a difference to what the final decision was. This issue has vexed me, but I have had a number of readings over the reasoning of the Tribunal and the analysis that the Tribunal has made of the financial situation of the Applicant and her husband.

It seems to me that even if the Applicants did have this information and could have framed the submissions to look at the breakdown, it would not have had any effect on the outcome. This is because the financial situation of the Applicant and her husband did not allow for the Tribunal to be satisfied that the Applicant and her husband could mitigate the amount of money that the Australian community would have to expend for the ongoing care of the son.

65    There are a number of errors evident in this reasoning. First, the test required to be applied was whether compliance with the relevant requirement could realistically have resulted in a different decision, not whether the result would have been different: SZMTA at [38], [45] (Bell, Gageler and Keane JJ). Second, in undertaking the inquiry whether there had been a material breach of the obligation to afford procedural fairness, the Court could not usurp the statutory task entrusted to the Tribunal and form its own view as to what the result should have been, or even what the result could have been. Rather, the question was whether the Tribunal (not the Court on review) could realistically have reached a different result: CHZ19 v Minister for Home Affairs (No 2) [2019] FCA 1112 at [34]-[37] (Colvin J). Third (and relatedly), in a case like the present where the complaint was of a failure to afford procedural fairness, it was necessary to consider what might have been presented to the Tribunal if a fair procedure had been adopted, not whether the Tribunal made the right decision on the material that was before the Tribunal. Fourth, the conclusion that the same decision would have been reached is logically unsound. It assumed the correctness of the financial information in the July Report which was the very information that might have been questioned if there was access to the material the subject of the Certificate.

66    Although the language 'realistic possibility that the Tribunal's decision could have been different' is ultimately used in SZMTA to describe what must be shown, the language from the long standing authority of Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at 145 is also used. There it was said that it is no easy task for the court to satisfy itself 'that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome'. Also referenced was the following passage from the reasons of McHugh J in Re Refugee Review Tribunal; Ex Parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [104] (a passage concerned with when a breach of natural justice has an invalidating effect rather than the content of the rules of natural justice):

Not every breach of the rules of natural justice affects the making of a decision. The decision-maker may have entirely upheld the case for the party adversely affected by the breach; or the decision may have turned on an issue different from that which gave rise to the breach of natural justice. Breach of the rules of natural justice, therefore, does not automatically invalidate a decision adverse to the party affected by the breach. This principle was acknowledged by this Court in Stead v State Government Insurance Commission when it said that 'not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial'. Nevertheless, once a breach of natural justice is proved, a court should refuse relief only when it is confident that the breach could not have affected the outcome because '[i]t is no easy task for a court ... to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome'. In this case, however, the denial of natural justice did not affect the outcome. After analysing the reasons of the second Tribunal and the history of the proceedings, the best conclusion is that the Tribunal would have found that the prosecutor did not have a well-founded fear of persecution even if it had had the four statements before it.

(footnotes omitted)

67    The warnings in these passages were referred to in WZARH v Minister for Immigration and Border Protection [2014] FCAFC 137; (2014) 230 FCR 130 at [28] (Flick and Gleeson JJ, Nicholas J agreeing generally) (a decision upheld on appeal).

68    For the Minister it was accepted that the non-disclosure by the Tribunal of the existence of a certificate may give rise to a denial of procedural fairness: Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197; (2017) 253 FCR 21 at [63] (Kenny, Tracey and Griffiths JJ). There was no attempt to justify the Certificate. There was no challenge to the implicit finding by the primary judge of a failure to afford procedural fairness. Rather, the submissions for the Minister focussed upon supporting the approach of the primary judge that there was no material breach.

69    Before the Tribunal the position of Ms Dang was that she did not understand the costings made by the Medical Officer. This appears from the Tribunal's reasons (para 35) where the Tribunal records that Ms Dang and her husband were asked about mitigating the costs associated with the long term needs of their son. The Tribunal records 'Mrs Dang stated they do not understand the costing made by the [Medical Officer]'.

70    Access to the costing for the January Report would have opened up the possibility of a forensic inquiry that may have been used to challenge the figures in the July Report. Counsel for the Minister accepted that the costing breakdown for the January Report could have been used to mount an attack on the July Report. In that regard, examples of forensic inquires that might have exposed doubts as to the reliability of the figures in the July Report include:

(1)    Why had the calculation increased by about $500,000 between January 2014 and July 2015 even though the same methodology had been deployed?

(2)    On what basis had the particular services been identified as being required by Ms Dang's son?

(3)    On what basis had a carer payment been included for Ms Dang's son from age 12?

(4)    Why was a state disability services payment included?

(5)    Was the report prepared without any input from the Medical Officer and if so what was the medical basis for the assessment as to the level of services that might be required?

(6)    On what basis was the view formed that Ms Dang's son would require 'supervision/ assistance with activities of daily living' and was there regard to the detail of the reports provided to the Medical Officer in making that assessment?

(7)    On what basis was the breakdown presented as a report of the Medical Officer?

(8)    Precisely what was the statutory character of the breakdown?

71    These are not hypothetical possibilities. The applicants before the Tribunal were asked to provide their response as to how they would mitigate the costs and they said they could not respond because they did not understand them. They were legally represented. They maintained that they would be able to provide the services that may be required. They had reports which might be used to question the costing. For reasons that have been expressed, the Tribunal was not bound to treat the matters stated in the July Report as correct. It was just part of the material that might be considered in deciding whether to waive the requirement in cl 4007(1)(c). Any basis upon which it might be questioned would assume considerable significance in that context.

72    In the result, the Tribunal acted upon the matters stated in the July Report as if they were unchallenged and had to be accepted.

73    Therefore, this is a case where there was a realistic possibility that disclosure of the Certificate would have led to scrutiny and production of documents that would have opened up possibilities that could realistically have resulted in a different outcome.

74    The third ground (numbered 4 in the notice of appeal) has been made out.

Conclusion and costs

75    For those reasons, the appeal should be allowed as to ground 4 and there should be orders accordingly. The appellant having substantially succeeded there should be an order that the Minister pay the costs of the appeal including the costs before the Federal Circuit Court.

Associate:

Dated:    11 December 2019