Case: Minister for Immigration and Multicultural Affairs v Seligman [1999] FCA 117 ; (1999) 85 FCR 115
Outcome: applied
The central submission advanced by the appellant is that the Tribunal erred in accepting as valid an opinion of the MOC which was 23 months old. It is said that in order to be valid, the opinion must address satisfaction of the criteria in par 4007(1)(c) as at the date of the Minister's decision , and that the MOC's report relied on by the Tribunal in this case could not satisfy this requirement. In support of this proposition, the appellant relies on the decision in Minister for Immigration and Multicultural Affairs v Seligman [1999] FCA 117 ; (1999) 85 FCR 115 at 127, where the Full Court, after noting that reg 2.25A(3) required the Minister to take the opinion of the MOC as correct, observed this was subject to the three following qualifications: '1. The opinion must be the opinion of the Medical Officer "on a matter referred to in subreg (1) or (2)". The matter referred to in subreg 2.25A(1) is whether a person meets the requirements of the relevant paragraph of Schedule 4. 2. The Minister is to take the opinion as correct for the purposes of deciding whether a person meets a requirement or satisfies a criterion. 3. The opinion must address satisfaction of the requirements at the time of the Minister's decision .' (Emphasis added.) In this case the opinion of the MOC was dated 8 May 2003, and the decision of the Tribunal was 15 April 2005. Accordingly, it is said, the Tribunal fell into jurisdictional error by relying on a report which was 23 months out of date, and which therefore did not address the satisfaction of the requirements in par 4007(1)(c) at the time of its decision. 14 At this point, I note that the respondent submits that the issue concerning the application of Seligman 85 FCR at 127 was not put to the Federal Magistrate, and therefore cannot be raised before this Court unless leave is granted: see NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51 at 56. To the extent that it is necessary, I grant leave to raise this new point on appeal, as I regard it as both cogent and of central relevance. The Minister was on notice that this ground was going to be advanced by the appellant, and consequently no undue prejudice arises. 18 The determination of this appeal depends on an application of the test laid down by the Full Court in Seligman 85 FCR at 127, where it was stated that the Minister is required by reg 2.25A(3) to take the opinion of the MOC as correct, subject to a qualification that, inter alia , any such opinion must address whether the relevant requirements were satisfied at the time of the Minister's decision . In this case, it is clear that the relevant requirements are those contained in par 4007(1)(c) of Schedule 4 of the Regulations . It is also clear that the Tribunal's decision took the MOC's opinion as correct. The issue which arises for determination therefore is whether the Tribunal fell into jurisdictional error when it took as correct an opinion of an MOC which was given 23 months before the Tribunal made its decision, and which, as a result of this lapse in time, could not strictly be said to address whether the requirements in par 4007(1)(c) were satisfied at the time of the Tribunal's decision . 19 In practical terms, the requirement in Seligman 85 FCR at 127 that the MOC's opinion must address satisfaction of relevant requirements as at the time of the Minister's decision cannot be read literally. For example, where the Tribunal is reviewing the Minister's decision, it cannot be reasonably suggested that the Tribunal should be required to have an MOC's opinion as at the same date as its decision. Generally, the Tribunal will reserve its decision at the end of the hearing and it should be entitled to rely on an opinion which is current and reliable at the date of the hearing, and should not be required to seek or consider a fresh opinion bearing the same date as that on which it eventually hands down its decision. 20 However, in addressing this question, the Tribunal cannot generally disregard a substantial lapse in time between the issue of an MOC's report and the making of its decision. In some cases, for example, it may be that an MOC's opinion expressed many years before the Tribunal's decision, on its face, by reason of the lapse of time and other considerations, will necessitate further investigation as to that opinion's relevance, currency and reliability. Whether further investigation is required will depend on an assessment of all the circumstances of the case, including the amount of time that has elapsed between the issue of the MOC's report and the Tribunal's decision, any evidence of change (and, in particular, improvements) in the applicant's health, and the degree to which any other medical opinions demonstrate a lack of currency and reliability in the opinion of the MOC. 21 In my view, the circumstances in this case demonstrate that the Tribunal fell into jurisdictional error when it took the MOC's opinion as correct because, applying the Full Court's statement in Seligman 85 FCR at 127, 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. 22 First, the lapse in time in this case between the date of the MOC'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 MOC's report and the making of the Tribunal's decision in this case. 23 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. As Dr Chen observes, in the time since diagnosis, the appellant's viral load dropped from 750,000 copies per millilitre to an "undetectable" level, and her CD4 count rose from 230 to at least 680 cells per cubic millimetre. This improvement was described by Dr Chen as "remarkable". 24 Thirdly, there is substantial disagreement between the medical opinions of Dr Chen and the opinion of the MOC. Three reports from Dr Chen were placed before the Tribunal, with the last report being issued shortly after the hearing had taken place. The substance of the latter two opinions of Dr Chen is that the appellant was responding very well to treatment; that she would not require inpatient care for the foreseeable future; that her medication has remained unchanged and constant since initial diagnosis; that she has shown "excellent adherence to treatment"; and that her prognosis was generally very good. Counsel for the appellant observed, and it was not challenged, that the content of these reports was very different to (and, it can be added, significantly more optimistic than) the report of the MOC. Indeed, the references to hospitalisation and intermittent income support in the report of the MOC imply that significant inpatient management would be required for the appellant. This is a matter directly disputed in the reports of Dr Chen. Accordingly, although Dr Chen's reports (unlike the MOC's) do not include an estimate of the cost of the appellant's future treatment, the fact that his reports express different medical conclusions, pursuant to examinations of the appellant well after the date of the MOC's report and shortly before the date of the Tribunal's decision, casts doubt on the currency and reliability of the MOC's assessment of the appellant's medical condition and the cost of her treatment, and supports a conclusion that the MOC'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. 25 On the basis of these three considerations, I am of the view that the Tribunal fell into jurisdictional error by taking as correct a report of the MOC which, contrary to Seligman 85 FCR at 127, does not address the appellant's satisfaction of par 4007(1)(c) at the time of the Tribunal's decision . The Tribunal's recitation of Dr Chen's evidence is cursory, and no substantive analysis of his opinions is engaged in; at no stage does the Tribunal state that there are significant inconsistencies between the opinions of Dr Chen and the MOC, nor does it explore those inconsistencies; and it registers no concern that the report of the MOC on which it relies is almost two years old at the time of its decision. Moreover, even though the Tribunal states early in its reasons that the Full Court's decision in Seligman [1999] FCA 117 ; 85 FCR 115 is relevant to the appellant's case, there is no evidence on the face of its reasons that the Tribunal considered in any way the applicability of that authority's construction of reg 2.25A.