FEDERAL COURT OF AUSTRALIA

MIGRATION LAW - application for judicial review - decision of Minister to refuse a senior executive visa to family with child with mild intellectual disability - whether Court has jurisdiction to review the decision of Minister - whether opinion of Commonwealth Medical Officer is judicially reviewable decision - whether Commonwealth Medical Officer can be made a party to the proceedings for the purpose of judicial review - whether decision of Commonwealth Medical Officer can be reviewed in proceedings brought against the Minister - error of law within the meaning of subs 476(1)(e) of Migration Act 1958 (Cth) - whether “long term income support” is within the meaning of “health care or community services” in Sch 4 subpar 4005(c)(i) Migration Regulations - whether no evidence to justify making the decision.

Migration Act 1958 (Cth) - subs 31(3), subs 475(1)(a), subs 475(1)(b), subs 475(1)(c), subs 475(2), s 476, subs 476(1)(e), subs 476(1)(g), subs 476(4)(a), s 480, s 485, subs 485(1)

Migration Regulations - regs 2.03, 2.25B; subregs 2.25A(1), 2.25A(3); Sch 2 pars 128, 128.32; Sch 4 pars 4005, 4005(c), subpars 4005(c)(i), 4005(c)(ii);

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Manokian v Minister for Immigration and Multicultural Affairs (Davies J, 3 December 1997, unreported)

Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212

NORMAN SELIGMAN -v- MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 588 of 1997

THE COURT ORDERS THAT:

1.         The application be allowed. 

2.         The decision under review be set aside and the matter remitted to the respondent for further consideration in accordance with these reasons.

3.         The respondent pay the applicant’s costs of the application.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

This is an application brought pursuant to s 476 of the Migration Act 1958 (Cth) (“the Act”) to review the decision of the respondent (“the Minister”) refusing the applicant’s application for a subclass 128 visa lodged by him in May 1996.  The application related also to his wife and two children.  It was refused in respect of all of them.  The ground of refusal was that the applicant’s son, Gregory, did not comply with the relevant health requirements for his migration to Australia.  The grounds for review relied upon in the present application are that: (1) the decision involved an error of law within the meaning of subs 476(1)(e) of the Act and (2) pursuant to subss 476(1)(g) and 476(4)(a) of the Act there was no evidence or other material to justify the making of the decision.  The determination of this application requires consideration of a number of statutory and regulatory provisions.  It is convenient to refer to them in the course of considering the facts of the case.

The applicant, Norman Seligman, applied on 15 May 1996 for a visa to permit his family to migrate to Australia from South Africa.  The application was made on his behalf by a qualified Migration Agent operating in Australia.  The application was forwarded to the Australian High Commission in Pretoria for necessary processing.  It appears that, at all relevant times, the applicant and his family have resided in Johannesburg, South Africa.  The visa applied for is one prescribed pursuant to subs 31(3) of the Act and reg 2.03 of the Migration Regulations (“the Regulations”) (which need not be set out), the required criteria for its grant being set out in the relevant part of Sch 2 to the Regulations.  The relevant part is “SUBCLASS 128-SENIOR EXECUTIVE”.  An applicant for this type of visa must satisfy “primary criteria” which are set out in this part of the Schedule and also “secondary criteria”.  There was no contest that the applicant, who occupied a senior executive position in a business in South Africa, satisfied the primary criteria.  The issue for determination by the delegate of the Minister was whether relevant secondary criteria were satisfied.

The relevant secondary criteria are set out in par 128.32 of Sch 2.  They require that an applicant who is a member of the family unit of a person who has satisfied the primary criteria must satisfy, inter alia, the “public interest criteria” set out in par 4005 of Sch 4 to the Regulations.  That paragraph sets out a number of health requirements with which an applicant or his family members must comply.  The relevant subparagraph for present purposes is subpar 4005(c)(i) which provides as follows:-

“4005  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:

               (i)      result in a significant cost to the Australian community in the areas of health care or community services; ...”

The application form forwarded on behalf of the applicant disclosed that his son, Gregory Seligman, who had been born on 16 June 1974, suffered from a “mild intellectual disability”.  It appears that after an interview conducted with the applicant at the offices of the High Commission in Pretoria it was recorded that the case was a “strong” one so far as the primary criteria were concerned.  It was necessary, however, that further information be supplied as to Gregory’s mental condition.  Although it is not entirely clear from the material, it sufficiently appears that, in the first instance, a report was obtained on 26 July 1996 from a medical practitioner, Dr L Picker of Johannesburg, who examined Gregory and filled out a prescribed form.  This consisted of a questionnaire and a report of findings on examination.  In the printed questionnaire the question was asked: “Do you have any physical or mental disabilities which may affect your ability to earn a living or take full care of yourself?”  The question was answered: “Mild intellectual disability.  Attended school for learning disabled.  Subsequent attendance at college to acquire computer/office skills.”

In the section of the report dealing with the doctor’s findings, it was stated in the portion relating to “Nervous system/mental state/intelligence” that Gregory showed “Mental retardation but is able to read and hold intelligent conversation.  Specialist reports to be submitted.”  In relation to the question in the form “Are there any physical or mental conditions which may affect this person’s ability to earn a living, take care of him/herself or adapt to a new environment?”, the answer was recorded “Mental retardation since birth.  Reports re I.Q. and developmental level assessments to be submitted.”

On 14 August 1996 the applicant provided Dr Picker with three further reports for his consideration.  These were (a) a psychological assessment report of Gregory dated 8 August 1996 from a clinical psychologist, Mr Andrew Davies, (b) a letter from a teaching organisation, Access College, dated 8 February 1996, and (c) a report from Dr R Heitner.  It is necessary to make brief reference to these reports.

The report of Mr Davies referred to two psychological assessments of Gregory, the first conducted in 1994 and the second in 1996.  The 1994 assessment indicated that he was functioning within “the Borderline Range of Intellectual functioning on standardized Intelligence Quotient measures”.  He was “trainable and capable of acquiring the skills requisite in his chosen work area”.  However, he was “delayed in his social and emotional development”.  Improvement was noted in the 1996 re-assessment.  His speech had improved and he had maintained “his pleasant and friendly nature and ... displayed no evidence of inappropriate behaviour”.  He still required “structure and encouragement to perform at his optimal level”.  Mr Davies considered that Gregory’s I.Q. remained in the Borderline Range but he stated:-

“There is a plethora of research to suggest that individuals functioning within this range of intelligence may achieve adequate vocational and social adjustment depending on employment opportunities.  Although able to occupy unskilled positions, semi-skilled work is possible.”

In 1994 it had been felt that Gregory was “best suited to a highly structured occupational environment that would direct and sustain his motivation and persistence”.  It had been suggested that he be trained in the area of computers and that, following specialised training he should perform “with an adequate degree of competence in the capacity of data capturer in a structured environment”.  It was recommended that he register with Access College to obtain this type of training.  At the time of the 1996 assessment he had attained some training at that College and completed some computer courses at elementary and intermediate levels.

Mr Davies provided the following conclusion:-

“Given appropriate training, an employment opportunity and a favourable working environment, it is believed that Gregory is capable of holding down a job and becoming a productive member of society.  As regards independent living, it is felt that Gregory remains emotionally immature, but is gradually acquiring the skills and emotional maturity requisite for more autonomous living.”

The report from Access College indicated that Gregory had completed eleven subjects at the College.  It stated that:-

“It is our recommendation that Greg needs a very structured environment that offers ongoing supervision.  Due to his learning disability, Greg would do very well in a position with a set routine where his strengths are encouraged and enhanced.  Greg will require detailed and clear instructions in order for him to carry out a new task as required.

Given this setting Greg has the potential to be productive in a Data Capture position where attention to detail and accuracy are more important than speed.”

Dr Heitner’s report indicated that Gregory had been a patient of the practice for twenty years, that he suffered from “a degree of cortical dysfunction manifesting as impaired motor function and developmental delay”.  He stated that Gregory was self sufficient, computer literate, and did not require any form of constant supervision.  The opinion was expressed that “he will not be a burden on any health or disability scheme or fund”. 

The material before me does not indicate that Dr Picker gave any further report.  However, it appears that all the material thus provided through Dr Picker to the Australian High Commission was provided to the National Health Clearances Unit in Australia for the purpose of obtaining an opinion of a Medical Officer of the Commonwealth.  The provision of this opinion was required by regulation.  Subregulation 2.25A(1) of the Regulations provides, so far as relevant:-

“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(c)...”

The following subregulations must also be noted:-

“2.25a   (3)    The Minister is to take the opinion of the Medical Officer of the Commonwealth on a matter referred to in subregulation (1) ... to be correct for the purposes of deciding whether a person meets the requirements or satisfies a criterion.

2.25b In determining whether or not, during an applicant’s proposed period of stay in Australia, a 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; ...

the Medical Officer of the Commonwealth must consider the person’s need and eligibility for health care or community services, without regard to whether that person will use the services.”

The role of Commonwealth Medical Officer in relation to the Seligman family application was performed by Dr Peter Fogarty who provided his written opinion on 17 September 1996.  His opinion was that Gregory Seligman failed to meet health requirements.  The body of the opinion read as follows:-

“My opinion is based on available medical and radiological information and the duration of stay sought in Australia.

In my opinion, the abovementioned person does not meet the prescribed health criteria for the proposed duration of stay for the following reason/s as set out in the Migration Regulations at schedule 4, at subparagraph 4005(c)(i) that is:

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

MY REASONS ARE AS FOLLOWS:-

This 22 year old man has borderline intellectual functioning.  He underwent formal psychological testing in 1994 which found visual motor difficulties, poor control and lack of planning ability, poor immediate visual memory and reduced psychomotor speed.  His social and independent living skills were poorly developed.  When re-tested in 1996 considerable improvement was noted in all areas but he was still in need of further specialised training.  He was thought suitable for clerical type of employment with a very structured nature and highly supervised.

It is likely with his disability he would meet medical impairment criteria for long term income support in Australia.  This would be costly to the taxpayer.

I recommend in this case, as a departure from usual practice, that these specific reason/s not be given directly to the applicant but should be provided in consultation with a medical practitioner nominated by the applicant.”

When advised of Dr Fogarty’s opinion in South Africa, Mr Seligman sought and, apparently, was granted the opportunity to make further representations and put additional material to the National Health Clearances Unit in Sydney.  In relation to the proposition that Gregory would be a burden on the welfare system in Australia, Mr Seligman offered to set up a substantial trust fund for him in Australia to be “used for Gregory’s well-being as long as he is living in Australia”.  He also offered to waive rights to a disability pension, if this were possible.  He also stressed that members of the family, apparently in a comfortable financial situation, already living in Sydney, would give “guarantees of support if required”.  It appears that he was told in Pretoria that the case was “still open”.  Additionally, Dr David Crawford, First Secretary (Immigration) at the Australian High Commission Migration Office in Pretoria wrote to Dr Bruce Ilsley, the medical practitioner nominated on behalf of the Seligman family, advising him of Dr Fogarty’s opinion and indicating that if the family wished to challenge Dr Fogarty’s assessment it would be necessary for additional documentation or reports to be provided within twenty-eight days.

This time limit was not met but, on 5 May 1997, the family’s Migration Agent in Australia wrote to Dr Crawford making representations for a review of the earlier decision and attaching an updated report from Mr Davies, the clinical psychologist, a letter from YALE - Young Adults Learning and Earning Centre - where Gregory had been working since 1996, a letter from Dr Neil Ginsberg, a practising paediatrician in Sydney who is Gregory’s uncle, and a letter from the Australian Jewish Welfare Society.

Mr Davies reiterated his earlier opinions.  He stated that Gregory’s “training and occupational performance over the past three year period confirms his ability to function adequately at a semi-skilled level”.  He also made reference to Gregory’s satisfactory completion of courses leading to his having been “successfully employed in the field of Data Capture”.  He concluded by saying:-

“I have reviewed the intellectual impairment criteria for disability support pension in Australia, and am of the opinion that Mr Seligman is not eligible in this regard and will neither presently, nor in the future, require disability support.  Psychometric test results, training qualifications and occupational history suggest that Mr Seligman is capable of holding down a job and of becoming a productive member of Australian society.  His current level of functioning, the absence of emotional and behavioural problems, his work achievements to date, and strong family and community support, suggest that Gregory’s disability is not of sufficient severity to warrant or require long-term income support.  I therefore wish to support Mr Seligman’s application for entry into Australia.”

The letter from YALE confirmed that Gregory had been working at the Centre since April 1996 and at present was “in the learning phase of the working environment”.  It further stated that “Over the past year a marked improvement has been noted in Gregory’s ability to work independently in various areas that have been allocated to him and that he has familiarised himself with”.

The letter from Dr Ginsberg took issue with Dr Fogarty’s opinion that it was likely that Gregory “with his disability ... would meet medical impairment criteria for long term income support in Australia”.  In this regard, Dr Ginsberg stated:-

“I feel that ... this opinion is not correct, as I do not believe that Gregory would qualify for long term income support, in particular, the Disability Support Pension (DSP), for reasons which I will outline below.

The basic conditions of eligibility for the DSP include:

1.         Must have a physical, intellectual or psychiatric impairment of 20% or more, AND

2.         Inability to work for at least the next 2 years as a result of impairment, AND

3.         Inability, as a result of impairment, to undertake educational or vocational training which would equip the person for work within the next 2 years.

Gregory has no physical disability that would require social support.  According to my interpretation of the Intellectual Impairment Tables contained within the Social Security Act (Schedule 1B), I believe that Gregory would have a borderline eligibility score, however, Gregory does not satisfy basic eligibility requirement 2 as listed above, as I feel he is able to work and earn an award based-income.  Admittedly, this work needs to be in a structured and supervised environment.  I believe this is quite clearly the opinion of:

a.         The psychologist who performed evaluations on Gregory in 1994 and 1996, and was of the opinion that ‘....Gregory is capable of holding down a job and becoming a productive member of society.’.

b.         The executive director of the college where Gregory underwent his training in PC and General Office Skills who stated that ‘...Greg has the potential to be productive in a Data Capture position...’

c.         Myself, in my capacity as his employer for casual tasks during 1994 and 1995.  During this period he entered computer data for me, and was involved in other office tasks including filing, sorting and envelope filling.  He completed all given tasks slowly, but deliberately and with purpose, requiring only minimal supervision.

Regarding the third of the eligibility criteria, his past and present training positions testify to the fact that Gregory is able to undertake training to equip him to work.

In conclusion, I am of the opinion that Gregory Seligman is a generally healthy young man with mild intellectual disability, who is not eligible for the DSP on the basis of failing to meet at least two of the basic eligibility criteria, and very possibly a third as well.”

The letter from the Australian Jewish Welfare Society referred to its having “an employment facility known as ‘Print 35’”.  It was indicated that workers at Print 35 included people “who receive a part pension, as well as some who no longer receive any pension, as the training they receive has enabled them to earn an Award level wage based on their productivity and determination”.  They would be prepared to offer Gregory employment at Print 35 and expressed the view that he could “develop sufficient skills that would enable him to work productively for many years without any call on the social security system of Australia”.  The view was also expressed that he could earn Award wages upon which he could, in fact, pay taxes. 

Representations in accordance with the thrust of this material were made by the Migration Agent to Dr Crawford.  Some stress was placed upon the argument that Gregory would not, in any event, qualify for a disability support pension under Australian social security legislation.

There is no precise indication in the material before me that these further representations were considered.  However, it seems reasonable to assume that they were, as the final decision in relation to the application was not given by Dr Crawford until 2 July 1997.  That decision rejected the application on the basis of failure by Gregory to satisfy the health requirement as advised by the National Health Clearance Unit.  The stated basis of rejection was in identical terms to those appearing in Dr Fogarty’s opinion of 17 September 1996.

THE CASE ON REVIEW

In rejecting the application, Dr Crawford, of course, acted as delegate of the Minister.  The applicant seeks review of that decision by this Court pursuant to s 476 of the Act.  It is clear that the decision was not one subject to internal review nor to review by the Immigration Review tribunal.  It was submitted on behalf of the applicant, that in these circumstances, the decision was directly reviewable by this Court pursuant to subs 475(1) of the Act, which reads as follows:-

“Subject to subsection (2), the following decisions are judicially-reviewable decisions:

    (a)   decisions of the Immigration Review Tribunal;

    (b)   decisions of the Refugee Review Tribunal;

    (c)    other decisions made under this Act, or the regulations, relating to visas.”

Subsection (2) has no application nor do subss 1(a) or (b).  In these circumstances the only question is whether the subject decision was “judicially-reviewable” as being a decision covered by subs (1)(c).  The subsection is in the widest possible terms.  I am satisfied that the Minister’s decision rejecting the application was one “relating to” a visa.  Accordingly, the Court has jurisdiction to review that decision pursuant to s 476 of the Act.

The Minister has raised a threshold question.  It is submitted that the grounds for review of the Minister’s decision cannot possibly be made out.  I have already referred to the fact that the grounds allege an error of law within the meaning of subs 476(1)(e) of the Act and an absence of evidence within the meaning of subss 476(1)(g) and 476(4)(a) of the Act.  It is necessary to refer to the particulars relied upon in the application in order to understand this submission.

Particulars of the “error of law” are as follows:-

“The decision-maker determined the application by applying the wrong test, namely, whether Gregory Seligman would be likely to meet the medical impairment criteria for long term income support in Australia.  The correct test is whether Gregory Seligman’s disability would be likely to result in a significant cost to the Australian community in areas of health care or community services.”

In relation to the no evidence ground the particulars relied upon are:-

“(b)     The decision-maker was required to reach the decision only if it was established that Gregory Seligman’s condition would be likely to result in a significant cost to the Australian community in the areas of health care or community services;

 (c)       There was no evidence or other material from which the decision-maker could reasonably be satisfied that that matter was established.”

It is clear, of course, that these particulars relate to the opinion expressed by Dr Fogarty.  In these circumstances, counsel for the Minister relies upon the wording of subregs 2.25A(1) and (3) which have been set out above.  She submits that because of the requirements of subreg 2.25A(3) the Minister was bound to accept as correct Dr Fogarty’s opinion when determining whether the applicant satisfied the criteria for the grant of a visa.  The critical question in relation to the criteria was whether Gregory met the requirements of par 4005(c).  As the Minister was bound to accept the Commonwealth Medical Officer’s opinion in this regard he could commit no error of law in so doing.  Accordingly, it was submitted, the application was doomed to failure as presently framed.  The submission, however, embraced the concept that the formation by Dr Fogarty of his opinion was itself a decision within the meaning of the Act “related to” a visa, so that it was amenable to review if the doctor were made a party to the application.  However, the application, as presently framed, could not succeed.

A further question necessarily arises.  That is whether the Commonwealth Medical Officer in giving his opinion as to whether Gregory met the requirements of par 4005(c) was making a “decision” within the meaning of subs 475(1)(c) of the Act.  There can be no doubt his opinion in this regard was one relevantly “relating to” a visa and was also critical to its refusal in that the Minister was bound to accept it.  Furthermore, once accepted, it mandated the Minister’s refusal of the application.  The language of subreg 2.25A(1) and reg 2.25B provides assistance.  In subreg 2.25A(1) the Minister is spoken of as “determining” whether an applicant satisfies the relevant criteria.  There can be no doubt that this “determination” would be a decision within the meaning of subs 475(1)(c).  In reg 2.25B the Medical Officer of the Commonwealth is likewise spoken of as “determining” whether the applicant’s condition would be likely to result in a significant cost to the Australian community.  In my view, the legislature has sufficiently indicated that this “determination” is in a sufficiently similar category to the “determination” of the Minister as to warrant its being regarded as a “decision” within the meaning of subs 475(1)(c).  Accordingly, I am satisfied that, if there were no other impediment, the Commonwealth Medical Officer could be made a party to proceedings brought under s 476 of the Act for the review of an opinion expressed by him as to the meeting of requirements under par 4005(c). 

However, other provisions of the Act satisfy me that there is no need for the Commonwealth Medical Officer to be made a party to proceedings under s 476 for the purpose of reviewing his opinion.

Section 485 of the Act provides, so far as relevant, as follows:-

“(1)  In spite of any other law, including section 39B of the Judiciary Act 1903, the Federal Court does not have any jurisdiction in respect of judicially-reviewable decisions ... other than the jurisdiction provided by this Part...”

Section 480 of the Act, so far as relevant, provides as follows:-

“The parties to the review of a judicially-reviewable decision are the Minister and:

...

(b)       if the judicially-reviewable decision is covered by paragraph 475(1)(c) - the person who is the subject of the decision.”

In my view, given, as I have held, that the opinion of the Commonwealth Medical Officer is a judicially-reviewable decision, the effect of subs 485(1) is to make it reviewable only by proceedings under s 476 of the Act.  No other avenues of review, including those provided by the Administrative Decision (Judicial Review) Act 1977 (Cth) are open.  This being so, the legislative intention underlying s 480 is that only the Minister is to be made a party in such review proceedings.  This does not mean that only the Minister’s decisions can be subject to review.  A judicially-reviewable decision which underpins the ultimate decision of the Minister, as does the opinion of the Commonwealth Medical Officer in this case, can be reviewed in proceedings brought against the Minister for that purpose.  Indeed, by force of s 480, no proceedings can be brought directly against the other decision-maker.

Accordingly, I am of the view that the proceedings, as presently constituted, are a proper vehicle for the review of Dr Fogarty’s opinion.  It follows that it is no answer to those proceedings that the Minister was bound to accept that opinion and therefore could commit no error of law in so doing.  Accordingly the respondent’s threshold submission is rejected.  I should state that, in reaching this decision, I have had regard to the decision of Davies J in Manokian v Minister for Immigration and Multicultural Affairs (3 December 1997, unreported).  That decision did not relate to regs 2.25A and 2.25B.  Indeed, his Honour expressly doubted that those clauses had any application to the case he was deciding.  Furthermore, it would appear that no argument was addressed to his Honour in relation to the effect, if that were relevant to the case, of ss 485 and 480 of the Act.  I do not regard his Honour’s decision as an impediment to the view that I have formed.

I come, then, to the grounds of review relied on by the applicant.  They have been set out above, as have the particulars relied on.  It is appropriate to make three preliminary observations.

In the first place although, no doubt, the applicant feels that the material supplied as to the setting up of a trust fund for Gregory in Australia and provision to him of employment by the Australian Jewish Welfare Society is cogent and persuasive on the question whether Gregory is likely to be a “significant cost” to the Australian community, nevertheless, having regard to the provisions of reg 2.25B, it is not material that could be considered by the Medical Officer.  The area for determination pursuant to reg 2.25B is necessarily somewhat limited and hypothetical.  It appears that the likelihood of significant cost occurring must be considered without regard to the financial situation of the person in question or the availability to him or her of material support in Australia which would obviate reliance upon “health care or community services”.  The inquiry is confined to determining what need for relevant care and assistance is generated by the condition from which the applicant suffers and whether that need renders him or her eligible for the provision of health care or community services at significant cost to the Australian community. 

Secondly, the effect of regs 2.25A and 2.25B is that the Medical Officer is required not only to determine, as a medical question, the nature, extent, and effect upon an applicant of the relevant disease or condition suffered by him or her but must also determine the existence or otherwise of a consequent likelihood of “significant cost” within the meaning of subpar 4005(c)(i).  This latter inquiry would involve a consideration of what “areas of health care or community services” would probably be involved in the provision of care and assistance for the applicant, the likely cost of such provision, and whether such cost would be “significant”.  Also involved would be the question whether the applicant, as a result of his or her condition, would meet any statutory or regulatory tests imposed by Australian law determining his eligibility for such care or assistance.  Although in many cases the answer would be clear, there would doubtless be a number of cases which could properly be described as “borderline” in which eligibility for community funded care or services would be debateable and also whether the cost involved could properly be regarded as “significant”.  This latter question obviously involves a value judgment which, somewhat surprisingly, is entrusted to a Medical Officer rather than to some appropriate member of the Minister’s department.  Be that as it may, it is clear that the Medical Officer’s decision may involve considerations in areas of doubt and difficulty.

Thirdly, the opinion expressed in the present case, notwithstanding that it is of critical significance in the lives of the applicant and his family, is expressed in very short form.  It does not expose the basis upon which it was considered to be likely that Gregory “would meet medical impairment criteria for long term income support in Australia” and it does not deal with the submissions made on behalf of Gregory, supported by a professional opinion, that he would not meet such criteria.

ERROR OF LAW

It is submitted on behalf of the applicant that the Medical Officer erred in law by applying the wrong test.  Subparagraph 4005(c) required a determination by the decision-maker whether Gregory’s condition would be likely to result in a significant cost to the Australian community in areas of health care or community services.  However, it was submitted, the decision-maker had proposed to himself the question whether Gregory would be likely to meet “medical impairment criteria for long term income support in Australia”.  This, it was said, was not the test propounded by the Regulations.  The provision of “long term income support” did not come within the category of the provision of “health care” or of “community services”.  It was submitted that, on their proper construction, those phrases referred only to medical services and community facilities of the nature of hospital care, community nurses, support groups, welfare workers and the like.

Neither “health care” nor “community services” are the subject of definition in the Act or Regulations.  I am satisfied that the provision of “long term income support” could not reasonably be regarded as an aspect of “health care”.  Indeed, I do not understand the contrary to have been argued on behalf of the respondent.  However, the respondent submits that the concept of “community services” is not as narrow as asserted by the applicant and can readily embrace the provision of income support to a disabled person.  In other words the provision of such support would relevantly be a “community service”.

I make the assumption that the Medical Officer, in using the term “long term income support” was referring to a disability-related Government pension paid on a regular basis.  This appears to have been the assumption made in the representations forwarded to the Minister’s delegate and also, by both sides, in argument before me.  The Medical Officer’s reasons do not indicate precisely what he had in mind when using the terminology that he chose.  The basic question, then, as I see it, is whether a Government pension paid on a regular basis to a person eligible to receive it because of some permanent disability can be regarded as being relevantly a cost in the area of community services.  I do not find this to be a question admitting of an easy answer. 

I gained some assistance from a consideration of the wording of subpar 4005(c)(ii).  This subparagraph has no application in the present case but it has a similar conceptual basis to subpar 4005(c)(i).  The question that it raises is whether an applicant’s condition would be likely to “prejudice the access of an Australian citizen or permanent resident to health care or community services”.  It is reasonable to assume that the phrase “community services” has the same connotation in each subparagraph.  In the latter subparagraph the decision-maker’s mind is obviously directed to the question whether an Australian citizen or permanent resident could be disadvantaged in the receipt of some community service by reason of the provision to the applicant of a similar service.  There is a suggestion of the number of relevant “services” being finite with the result that if one were made available to the applicant it would be correspondingly unavailable to anyone else, thus creating the likely prejudice envisaged by the section.  If, for example, the disability of an applicant was such as to require the daily attendance of a district nurse, and this service was provided to him or her, and the supply of such services fell below the level of demand for them in the community then this would be likely to have a prejudicial effect upon access to those services by an Australian citizen or permanent resident.  Obviously, the same might be said of the provision of a room or a bed in an institution established for the case of disabled persons.

I note also that one of the meanings given to the word “services” in the Concise Macquarie Dictionary is “the performance of any duties or work for another; helpful activity”.  I find this definition of assistance.

Whilst I can envisage the occasional supply of money to a disabled person by a Government agency to assist, in a temporary way, with some particular present problem as being, relevantly, the provision of a “service”, or as falling within the area of community services, I have difficulty in seeing that the provision of a regularly paid pension can fall into the same category.  It lacks the personal quality of performance of work for another which is involved, in my opinion, in the concept of “service”.

I have come to the conclusion that the payment of “long term income support” is not, within the meaning of subpar 4005(c)(i) a “cost to the Australian community in the area of ... community services”.  Consequently, I uphold the applicant’s submission that the decision-maker in the present case committed an error of law through applying a test not comprehended by subpar 4005(c)(i).  I am fortified in this view by the fact that, had the regulation-making authority intended that the likelihood of an applicant’s becoming eligible for a long term income support pension should be a disqualifying factor, it would not have been difficult for it to have made an express statement in the regulations to this effect.

NO EVIDENCE

The applicant relies upon subs 476(1)(g) as defined in subs 476(4)(a).  The submissions on this aspect of the case are alternative to the submission that I have just upheld.  They assume, contrary to that holding, that subpar 4005(c)(i) could involve the consideration by the decision-maker of the question whether the applicant’s disability “would meet medical impairment criteria for long term income support in Australia”.

Pursuant to subs 476(4)(a), it is submitted that Dr Fogarty was required to reach the decision that Gregory was likely to meet “the medical impairment criteria for long term income support” and that there was no relevant evidence or material from which he could reasonably be satisfied that that matter was established.  The onus of establishing the absence of supporting evidence lies upon the applicant (Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212).  The situation is a difficult one insofar as Dr Fogarty does not disclose in the short reasons, which have been quoted in full above, what were the “medical impairment criteria” to which he had regard.  The description of Gregory’s intellectual and psychological problems and training needs appear to come from the material that was supplied by the applicant to the High Commissioner’s office in Pretoria.  Dr Fogarty made no examination of Gregory and, it may be assumed, he relied, in forming his assessment of Gregory, upon the material which had been thus supplied.  It was upon this that he based the view that Gregory would be eligible in Australia “for long term income support” which would “result in a significant cost to the Australian community ...”.

The only evidence placed before me in relation to relevant “medical impairment criteria” is that set out in the opinions forwarded to Pretoria on behalf of the applicant, which have been set out above.  I consider that, in the circumstances, I should determine this aspect of the case upon the basis of that material.  In other words, it is reasonable to assume that when Dr Fogarty spoke of “medical impairment criteria” he was referring to the criteria set out in those submissions.  That being so, I am persuaded by those opinions that he did not have before him “evidence or other material from which [he] could reasonably be satisfied that Gregory’s eligibility for ‘long term income support’ was established”.

I am, consequently, satisfied that, assuming I am wrong in relation to the first ground, this alternative ground of appeal has been made out.

Accordingly, I allow the application.  I set aside the decision under review and I remit the matter to the respondent for further consideration in accordance with these reasons.  I also order that the respondent pay the applicant’s costs of the application.

Associate:

Dated:                    9 April 1998