Court Dismissed a Judicial Review Application

Case Summary: D (name redacted) v Administrative Appeals Tribunal [2019] FCAFC 220 (11 December 2019)

The case of D (name redacted) is an appeal application from Federal Circuit Court where the court had dismissed a judicial review application from the AAT decision affirming a refusal decision for not meeting PIC 4007 because the appellant's son's medical condition, being Down Syndrome.

Three grounds of appeal were proposed by the appellant:

 (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. D's son.

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, per Robinson. 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.

Current court held that 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] (K, T and G JJ). It was established that the appellant did not understand how the figure was made out in relation to the MOC’s calculation, this was clearly noted down in the decision record of the tribunal. They were also unable to comment on whether there was any possibility about mitigating the costs associated with the long term needs of their son because the Tribunal again recorded that they did not understand why the calculation of MOC was made.

The court held that with access to the costing for the MOC’s calculation report would have opened up the possibility of a forensic inquiry that may have been used to challenge the figures in the said report, especially 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. For those reasons along, the Tribunal was not bound to treat the matters stated in the MOC report as correct, instead 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.

The appeal decision is allowed for this ground.

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