Judicial Decisions

Case Name and Reference	Year application was originally made	Type of Health Condition	VISA Category	Health Condition of Primary Applicant or Family Member	PIC C-Concern	Decision	Additional Comments
Salma v Minister For Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 356; BC202303355	17 March 2018	Down Syndrome Estimated cost $109,500	Temporary Graduate Visas	Son born January 2013	PIC 4005	Held: Appeal Dismissed Whether primary judge erred in not finding that the decision of the Tribunal was affected by jurisdictional error as it was based upon a defective opinion of a Medical Officer	Finding that medical officer was not required to take into account the subjective or personal circumstances of visa in making consideration of where provision of health care would result in significant cost to Aus community
Shaikh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3487 BC202013084	8 December 2014	Asymptomatic chronic viral Hepatitis B with antiviral medications	Business Skills (Provisional) (Class EB) Business Innovation and Investment (Provisional) (subclass 188) Visa with family unit of 7 (four year visa)	Second Applicant (Family Member)	PIC 4005	Held: Application Dismissed Question was whether jurisdictional error made in assessing whether one of the applicants met the requirements of PIC4005 on the assumption that the applicants would be permanent residence of Australia.	Follows Wong
Yung v Minister For Immigration and Border Protection [2020] FCCA 680; BC202002212	29 June 2015	Autism spectrum disorder Described as 'mild to moderate' and 'likely to be permanent'	Other Family (Residence) (Class BU) Visas with family unit of 3.	Secondary, third applicant (son)	PIC 4005	Held: Application dismissed At [77] the weakness in the applicants' argument is reveale. When the RMOC's report is read at least fairly, the applicants' compliant is really a challenge to the weight given by the RMOC to the medical evidence before her/him. As the Tribunal correctly found, matters of such weight are for the RMOC to determine.	Where the applicant submitted the condition was "dynamic" as set out in a psych report, and difficult to asses because it varied in presentation, including changes over time, and that there have been a continuing improvement in condition. Applicant arguments in line with Robinson however RMOC made reference to hypothetical person test.
Han v Minister for Home Affairs [2019] FCA 331; BC201901657	Applicant suffered acute liver function failure and underwent emergency liver transplant surgery, which was successful in 2011, but existence of condition as transplant recipient triggered act	Skilled (Residence) (Class VB) Skilled Independent (Subclass 885) visa.	Main Applicant	PIC 4005: because of previous transplant (successful)	Held: appeal dismissed Haque did not afford appellant support.	Applicant argued words ‘significant cost to Australian community’ were incapable of objective ascertainment or calculation.
Dang v Administrative Appeals Tribunal (2019) 273 FCR 87; (2019) 168 ALD 384; [2019] FCAFC 220; BC201911616	3 September 2013	Down Syndrome Estimated costs calculated at $3,253,216	Employer nomination visas subclass 186	Two year old son of applicant	PIC 4007	Held: Appealed AllowedWhere the minister had issued a certificate under s375A and there was a realistic possibility that disclosure of the s375A certificate would have led to scrutiny and production of documents that could have realistically resulted in a different outcome.	Distinguished from Applicant Y v Minister for Immigration and Citizenship (2008) 100 ALD 544; [2008] FCA 367
Singh v Minister for Immigration and Border Protection [2019] FCCA 310; BC201900696	21 December 2009	“significant chronic renal disease” which was “likely to be progressive”	Skilled (Residence) (Class VB) Subclass 885 visa	Primary	PIC 4005	Held: Application for extension of time Denied Application for extension of time, two years out of time as it was not in the interests of the administration of justice to grant application.	Applicant submitted they were currently “…absolutely fit and fine and happy to go for any medical tests further.”
CVM17 v Minister for Immigration and Border Protection [2019] FCCA 617; BC201901827	28 December 2014	Asymptomatic HIV Cost estimated at $705,600 pharma and $72,800 in services	Partner (Provisional) (Class UF) Visa	Primary	PIC 4007(1)(c)	Held: Application dismissed Applicant claims that Tribunal made jurisdictional error by relying on a MOC opinion that ceased to be current by the time the Tribunal made its decision. Finding that substantial time is not by itself a ground for finding it was not reasonably open to the Tribunal to find that the evidence before it did not demonstrate the MOC Opinion lacked currency of reliability. Finding that the Tribunal did not consider the opinions relevance, currency and reliability.	Applicant relies on Applicant Y and Seligman Interesting obiter about disagreements with Applicant Y at [14] Where the elapsed time between the date on the MOC and the Tribunal decision was 25 months and 23 days Distinguished from Applicant Y at [52]
Wong v Minister for Immigration and Border Protection (2018) 342 FLR 1; [2018] FCCA 3490; BC201812861	24 June 2016	Autism	Business Innovation and Investment (Class EB) (subclass 188) Visa with family unit	Son of first applicant	PIC 4005	Held: application dismissed Findings: No jurisdictional errors in seconds respondent's decision First respondent's decision not made arbitrarily. Applicants failed to establish that second respondent was legally unreasonable. Applicants' application did not reveal any jurisdictional error	Applicant argued that MOC erred in finding: Whether 'State Disability Services' would be required And assessed them on a period of permanent stay rather that temporary as they were applying
Guab v Minister for Immigration and Border Protection [2018] FCCA 3083; BC201812846	24 October 2013	Severe cerebral palsy with severe functional and cognitive impairment	Partner (Provisional) (Class UF) subclass 309 Visa	Dependant Child The child was not migrating	PIC 4007	Held: Application Dismissed	The criterion in subcl.309.228(2) (b) allowed the minister to waive PIC 4007 if they are satisfied it would be unreasonable
Sarabia v Minister for Immigration and Border Protection [2017] FCCA 2642; BC201709192	5 December 2012	Kidney dysfunction	Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa.	Secondary applicant to his wife’s application	PIC 4005	Held: Application Dismissed AAT referred to an incorrect and inapplicable legislative instrument in error. Such error was not jurisdictional in nature because no different result caused. Result would have to be same if remitted to AAT as medical condition uncontentious.
Mai v Minister for Immigration and Border Protection [2016] FCCA 2901; BC201609707	14 February 2009	HIV Diagnosed around 2011 Treating Doctor wrote: 'he remains completely asymptomatic' while his 'overall prognosis is excelled' in 2014	Skilled (Residence) (Class VB) visa	Main applicant	PIC 4005	Where the assessment was in relation to a hypothetical person not actual circumstances of the applicant Held: Application Dismissed	MOC wrote “a hypothetical person with the same disease or condition, at the same severity as the applicant would be likely to require health care…”
Kaur v Minister for Immigration and Border Protection [2016] FCCA 2275; BC201607565	29 December 2009	Asymptomatic chronic renal disease with renal transplant	Skilled (Residence) (Class VB) subclass 886 visas	Primary applicants husband	PIC 4005	Held: Application Dismissed Applicant alleged that the Tribunal basd their opinion on an incorrect version of PIC 4005	Applicant made various criticisms of the delegate’s decision but court limited to review tribunal decision not delegate decision
Haque v Minister for Immigration and Border Protection (2015) 298 FLR 375; [2015] FCCA 1765; BC201505916	24 June 2010	Autistic Spectrum Disorder with moderate development delay and behavioural problem however was "attending to all her personal hygiene and activities of daily living."	Skilled Sponsored subclass 886 with two children	Family member – 12 year old daughter at time	PIC 4005	Application Granted where: There were two opinions of the MOC. The Tribunal's reasons reveal some confusion between the two reports. Further, the second report, was based on a significant mistake of fact. Finally, the Tribunal refused to give the first applicant time within which to address the second opinion because it misunderstood for first applicant's complaint about the mistake of fact. Each of those reasons infected the Tribunal's decision with jurisdictional error and, as a consequences , its decision was to be set aside and the Tribunal would determine the review of the delegate's decision according to law.	Respondent relied upon obiter in Blair Haque: Although a decision maker is normally bound to accept the opinion of the MOC as to whether a person meets the relevant health criteria for the visa for which they have applied, the decision maker should only accept a MOC opinion that is properly formed and that is not based on significant mistaken facts. - 1729745 (Migration) [2019] AATA 5188 at [13]
Islam v Minister for Immigration (2015) 299 FLR 48; [2015] FCCA 2210; BC201507982	16 February 2009	Moderate developmental delay	Skilled (Residence) (Class VB) visas (subclass 886 visa) with members of family unit	Family member: Son	PIC 4005(1)C(ii)A)	Held: application dismissed No jurisdictional error Notably the Tribunal review was "proper, genuine and realistic inquiry" which did not fail to take into account any relevant considerations and there was no necessity for the Tribunal to undertake further inquiries in relation to applicants medical condition.	Test for whether an opinion meets reg2.25 in Islam
Traill v Minister for Immigration and Citizenship (2013) 135 ALD 324; [2013] FCCA 2; BC201310134	27 November 2008	Visual impairment	Skilled (migrant) (class VE) subclass 175 (skilled-independent) visas.	Husband of first applicant	PIC 4005	Held: Application Granted CMO failed to properly ascertain form or level of condition applicant suffered and then proceeded to make assessment at higher level of generality by reference to generic form of unidentified condition CMO opinion was unreliable, and delegate relied upon it. CMO report was so uninformative that opportunity for applicants to comment on it was meaningless and therefore process was unfair
Reynolds v Minister for Immigration and Citizenship (2010) 237 FLR 7; [2010] FMCA 6; BC201000081	10 February 2005	Cerebral palsy	Other Family (Class BU), subclasss 835 (Remaining Relative) visa	PRIMARY	4005(c)(ii)(A)	Numerous grounds of appeal, all failed Application Dismissed	Application of Blair, Imad, Robinson, Seligman , X v MIMIA
Pillay v Minister for Immigration and Citizenship [2009] FMCA 517; BC200904657	14 July 2006	Down Syndrome	Other Family (Migrant) (Class BO) subclass 115 (remaining relative) visa	Primary	PC4005	Held: Application Dismissed Whether Tribunal bound to take opinion if the Medical Officer as correct No real prospects	self-represented(?)
JP1 v Minister for Immigration and Citizenship (2008) 220 FLR 37; [2008] FMCA 970; BC200805872	Applied for review of original decision on 30 June 2003	Human immunodeficiency virus (HIV) Where applicant's treating Doctor said he wouldnt need medication for 14 years (estimated cost being $122,544 in total) But, the RMOC thought in nine years, based on average or perhaps within three years, based on examination.	Employer Nomination (Residence) (Blass BW) with wife and children	Main applicant	PIC 4005	Review primarily on the grounds that the Review Medical Officers' opinion was invalid. Ground 1: The tribunal did not make errors of law that vitiate its decision, namely: The RMOC did not have to specify cost. Any failure to comply with the PAM guidelines would not have invalidated the RMOC's opinion. Ground 2: The tribunal did not make jurisdictional error by not complying with s359A MA 1958 Ground 3: The Tribunal did not erroneously fail to exercise its jurisdiction by not compelling the Ministry for Immigration/RMO C to provide it with copies the applicant sought under FOI request. Held: All grounds failed, application dismissed with costs.	This case references the decision of the Full Federal Court in Seligman [48], [49] and [53].
Applicant Y v Minister for Immigration and Citizenship (2008) 100 ALD 544; [2008] FCA 367	23 July 2001	HIV positive Approximate cost $250,000	Partner (temporary) (class TK) Visa and Partner (residence) (class BS) visa Relationship broke down permanently in 2003 due to DV	Primary applicant	PIC 4007(1)	Held: Appeal allowed The MOC opinion relied upon by the Tribunal in relation to the waiver of the health criterion had to be a current opinion. considerably.	The MOC's opinion was 23 months old at the time of the Tribunals decision and the court considered the applicant's health or the treatments for her condition could have changed considerably. See [19] -[22]
Minister for Immigration and Multicultural and Indigenous Affairs v X (2005) 146 FCR 408; [2005] FCAFC 209; BC200507309	Unstated	HIV positive Required quarterly monitoring and self-administered medication at cost of $267.45 quarterly for five years and $1188 per month.	Student Visa (Temporary) (Class TU)	Primary	PIC 4005	Held: Appeal against FCA decision which reversed refusal of student visa allowed Question was whether self-administered medication constituted health care. Self-administered medication constituted heath care as self-administration could not be sensibly isolated from total process including prescribing and dispensing.	As per Riley FM in JP1 "Finkelstein J suggested in X that significant cost could be ascertained by a form of comparative exercise with the average health costs for Australians generally. There is no legislative requirement for that approach and nor do the authorities support it." The case presided over Finkelstein J is the reversed FCA case. Applicant was granted non-publication of name given medical condition.
Robinson v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 148 FCR 182; [2005] FCA 1626; BC200509578	June 2002	Down Syndrome Described as 'mild'	Labour Agreement (Residence) (Class BV) (Subclass 855) Visa	Son	PIC 4005	Held: Application Granted MRT made error of law which precluded it from exercising jurisdiction according to law. The RMOC failed to assess the statutory criteria in 4005(c) by reference to a hypothetical person who had the actual level of applicants conditions The MOC misconceived the task because he "had not applied the proper test but had assessed [the applicant's] position on the basis of a person suffering from Down's Syndrome generally" [27]	His Honour Siopis J addresses question of "a construction of the Regulations to determine the proper test by which a MOC is to assess the matters referred to in Public Interest Criterion 4005 (c) of the Regulations" at 43 The applicant argued that the proper construction of the relevant statutory/regulatory scheme required the MOC to assess the specific nature and extent of the applicant's condition: "...and then apply the statutory criteria to a hypothetical person having that specific condition" [27]
Ramlu v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 195 FLR 203; [2005] FMCA 1735	Unstated	Report did not state which ailment caused failure to comply with Regulations	Unstated	Unstated	PIC 4005(c)	Held: Application Granted MRT was required to consider propriety of opinion when opinion challenges or appeared questionable. Failure to do so caused jurisdictional error.	Ramlu followed the test in Robinson
Triandafillidou v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 181 FLR 302; [2004] FMCA 20; BC200400330	Original decision made 24 August 2001 MOC opinion dates 8 December 1999	Significant intellectual impairment and requires support and supervision	Special Eligibility (residence) (Class AO) Visa subclass 806 remaining relative	Primary	PIC 4005	Held: Application Dismissed Medical Officer complied with regulations and legal error not established.
Inguanti v Minister for Immigration and Multicultural Affairs [2001] FCA 1046; BC200104594	Original decision on 3 April 2001	Intellectual Disability with need for assistance with personal hygiene and activities of daily living	Preferential Relative (Migrant) (Class AY) Visa subclass 104	Primary	PIC 4005(c)	HELD: Decision or MRT set aside and matter remitted to MRT for re-determination MRT erred in failing to have regard to competing evidence,. This case endorsed Imad.	Psychologist report by Dr Cook was contrary to the opinion of Dr Pincus. Dr Cook wrote that applicant's behaviour was socially appropriate and he was able to manage his personal basic daily policing requirements. Very sympathetic judge, see [13] and [16]
Imad v Minister for Immigration and Multicultural Affairs [2001] FCA 1011; BC200104366	23 July 1996	Applicant aged 72 at time suffered from severe cardiac dysfunction	Family (Residence) (Class AO)(Aged Parent) Visa, subclass 804	Primary Applicant	PIC 4005	Held: Application Dismissed Clause 4005 specifically directs medical officer not to take account of capacity of applicant's family to pay for her medical expenses,	Where applicant lives with daughter who was permanent resident and psychologically disabled and claimed to care for her and grandchildren [14] cited in Robinson re construction of PIC4005: One would expect that a medical officer would be able to assess the nature of disease or condition and its seriousness in terms of its likely future requirement for health care.
Blair v Minister for Immigration and Multicultural Affairs [2001] FCA 1014; BC200104310:	24 March 1998	Down Syndrome with a mild intellectual disability	Former Resident (Migrant) (Class AR) Visa with family unit	Family member: Husbands son	PIC 4005	Held: Application refused No reviewable error in medical review officer opinion Whether opinion of medical review officer satisfied criteria for 'opinion' as prescribed in Reg. Where the applicant provided extensive, generally supportive, medical evidence	[38] and [46] - on whether a Dr needs to qualify the cost when determining significant cost and other matters of construction of 4005 'Dr having found medical eligibility for long term income support in the form of disability support pension, was entitled to form the opinion that the provision of such a pension would result in significant cost, without quantifying that cost" - [46]
Bui v Minister for Immigration and Multicultural Affairs (1999) 85 FCR 134; BC9905801	4 December 1995	Borderline Intellectual Functioning Applicant maintains independent life and has completed 9 years of education	Vietnamese [Special Assistance] (Class BK) Visa	Primary	PIC 4007(1)(c)(i)	Held: Appeal allowed Delegate acted on CMO based criterion narrow than required to address. Where the Medical Officer acted with an awareness of the restriction imposed by reg2.35B.	The court invited submissions on reg2.25B after the decision in Seligman found reg2.25B invalid. The appeal would have otherwise failed. Evaluative judgment of whether the cost to the Australian community or prejudice to others is 'undue' may import considerations of compassionate or other circumstances [47]
Minister for Immigration and Multicultural Affairs v Seligman (1999) 85 FCR 115; (1999) 55 ALD 374; (1999) 164 ALR 173; [1999] FCA 117; BC9903865	14 May 1996	Mild Intellectual Disability "borderline intellectual functioning." Psychological report assessed son as capable of training and acquiring skills but delayed in social and emotional development. Where report referred to earlier assessment and changes in son's development.	Business Skills (Migrant, Class AD, Subclass 128 (Senior Executive) Visa	Family Member: 24-Year-old Dependant son	Where report of CMO required under Migration Regulations stated applicant's son did not meet criteria for grant of visa sought on grounds his disability was of nature likely to result in significant cost to Australian community	Appeal by Minister for Immigration against orders of Federal Court remitting application for visa for further consideration. Appeal Dismissed Held: Court entitled to review CMO's decision where it exceeds its authority and has been acted upon by Minister in exercise of decision.	Trial Judge found error of law on the part of the Medical Officer in reference to long term disability support, which was in his view neither an aspect of health or a community service. Such support was held as not a cost to Australian Community. Applicants made proposals to avert risk of his son becoming a burden on taxpayer. Widely cited at 48-49 with respect to the defining and limiting attributes of the medical officers opinion. The court found an internal inconsistency between reg 2.25B and found that it was not authorised by s 505. 400(c) was amended following Seligman with an inclusive definition of "community services."
Minister for Immigration & Multicultural Affairs v Ma (1998) 82 FCR 455; (1998) 50 ALD 803; BC9801038	22 December 1994	Intellectual disability and associated congenital health problems	Parent (migrant) (Class AX) Visas	Daughter of applicant She was withdrawn from the application	PIC 4005	Applicant was Minister Held: Tribunal decision to Grant Visas set aside for further consideration. It is not possible for the Tribunal to be satisfied that it would be unreasonable to require a person to undergo assessment for the purposes of public interest criterion 4005 where the person has already undergone such as assessment.	Daughter was withdrawn from the application and the tribunal found that it would be 'unreasonable' to require daughter to be assessed and on that basis the visa should be granted. The Minister was the applicant in this case. The wording of the subclause has changed but Ma still cited by Tribunal in Choice 2018.
Manokian v Minister for Immigration & Multicultural Affairs (1997) 48 ALD 632; BC9707003	23 February 1994	(unstated)	Aged Parent Visa (class 804) with son	Family Member: Son	PIC 4005	Application Dismissed: (i) The Tribunal does not have the power to review the opinion of the CMOs. (ii) The opinion of the CMOs did not amount to a decision to refuse to grant the visa. The visa was refused by the department. (iii) The primary decision-maker (the officer of the tribunal) had no power to go behind the certificate of the CMO that was before him and the Migration Act 1958 (Cth) (the Act) gave no further power to the review officer or the tribunal to go behind that certificate.	Appeal dismissed by the Review Tribunal on 28 June 1995.

The University of Newcastle acknowledges the traditional custodians of the lands within our footprint areas: Awabakal, Darkinjung, Biripai, Worimi, Wonnarua, and Eora Nations. We also pay respect to the wisdom of our Elders past and present.