Minister for Immigration and Multicultural and Indigenous Affairs v X [2005] FCAFC 209 (29 September 2005)

Last Updated: 10 October 2005

FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Multicultural and Indigenous Affairs v X [2005] FCAFC 209

MIGRATION – respondent applied for temporary student visa – respondent infected with HIV requiring "quarterly monitoring" and "self-administered prescription medication" – whether self-administered medication is "health care" pursuant to par 4005(c)(i)(A)


WORDS AND PHRASES – "health care"


Migration Regulations 1994 (Cth) reg 2.25A(1), par 4005(c)(i)(A), 4005(c)(ii)


X v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 429 reversed
Imad v Minister for Immigration and Multicultural Affairs [2001] FCA 1011 at [13] cited



















MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V X
VID 422 OF 2005

BLACK CJ, HEEREY & WEINBERG JJ
29 SEPTEMBER 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 422 OF 2005

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS APPELLANT
AND:	X RESPONDENT
JUDGES:	BLACK CJ, HEEREY & WEINBERG JJ
DATE OF ORDER:	29 SEPTEMBER 2005
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be allowed.
2. The orders of the primary judge made on 15 April 2005 be set aside and in lieu thereof the application be dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 422 OF 2005

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS APPELLANT
AND:	X RESPONDENT

JUDGES:	BLACK CJ, HEEREY & WEINBERG JJ
DATE:	29 SEPTEMBER 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

THE COURT:

1 The respondent, a Zambian national, applied for a Student (Temporary) (Class TU) visa. The grant of the visa was subject to certain public interest criteria set out in par 4005 of Sch 4 of the Migration Regulations 1994 (Cth) (the Regulations) including the criterion that the applicant is not a person who has a disease or condition such that a person who has it would be likely to require "health care or community services" and that the

"provision of the health care or community services relating to the disease or condition would be likely to result in a significant cost to the Australian community in the area of health care and community services."

2 The respondent is infected with Human Immunodeficiency Virus (HIV). According to an opinion of a Review Medical Officer of the Commonwealth (RMOC) provided under reg 2.25A(1), he was required to undergo quarterly blood tests for the monitoring of his disease and in order to keep his disease under clinical control he was also required to be maintained with antiretroviral treatment.

3 The estimated cost of the monitoring was $267.45 repeated four times per year for five years. The cost of the antiretroviral treatment was $1188 per month.

4 A delegate of the Minister rejected the respondent’s visa application. This decision was affirmed by the Migration Review Tribunal (the Tribunal). The primary judge (Finkelstein J) granted writs of certiorari and mandamus quashing the decision of the Tribunal and directing it to rehear and determine the respondent’s application: X v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 429.

5 On this appeal the Minister contests his Honour’s findings that

(i) "health care" in par 4005(c) of Sch 4 of the Regulations imports an element of personal attention or activity by a provider of health care (at [24]);
(ii) the cost of "health care" cannot include the cost of self-administered pharmaceuticals (at [24]); and
(iii) the RMOC’s opinion should be read down to refer only to the cost of the monitoring and the Tribunal committed jurisdictional error in finding this was a "significant cost to the Australian community".

The Regulations

6 Relevantly for present purposes it is a requirement of par 4005 that a visa applicant

"(c) is not a person who has a disease or condition to which the following subparagraphs apply:

(i) the disease or condition is such that a person who has it would be likely to:

(A) require health care or community services...

during the period of the applicant’s proposed stay in Australia;

(ii) provision of the health care or community services relating to the disease or condition would be likely to:

(A) result in a significant cost to the Australian community in the area of health care and community services...

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

7 Regulation 2.25A(1) relevantly provides that:

"(1) 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) ...

(3) The Minister is to take the opinion of the Medical Officer of the Commonwealth on a matter referred to in subregulation (1) or (2) to be correct for the purposes of deciding whether a person meets a requirement or satisfies a criterion."

The judgment at trial

8 His Honour considered and rejected all of the respondent’s arguments. The respondent does not advance these arguments on the appeal. His Honour then noted (at [19]) that he had raised another issue with counsel. The respondent required "two forms of what might broadly be described as medical treatment – quarterly monitoring, and self-administered prescription medication". Although the former answered the description of "health care" in par 4005(c)(i)(A), there was, in his Honour’s view, doubt as to the latter.

9 His Honour concluded as follows

"24 ... I am satisfied that on a wide or ordinary construction, the term ‘health care’ in subpara 4005(c)(i) imports an element of personal attention or activity by a provider of health care. The term is not apt to extend to the mere provision of prescription medication that is self-administered. Provision of that medication is separate and distinct from monitoring of an HIV sufferer’s immune function and viral load. Only the latter appears to involve the necessary element of ‘care’ or attention. Granted, the cost of medication may be a cost ‘in the area of’ health care. But the question is whether that cost ‘results from’ any relevant health care. In a sense, the monitoring of immune function and viral load is ancillary to the provision of the anti-retroviral medication. As Dr Mijch described it, the monitoring is ‘monitoring of [the HIV sufferer’s] therapy’. The monitoring, however, is not likely to result in the prescription of medication. Rather, the former results from the latter. No doubt in some cases monitoring may reveal a change in the HIV sufferer’s immune function and viral load, with the result that a change and perhaps an increase in medication is necessary, possibly with an increased cost. However, the intended effect of the medication is to prevent this occurring. For that reason it cannot be said that the monitoring would be ‘likely’ to result in any cost to the community by virtue of the prescription of antiretroviral medication. The costs of the anti-retroviral medication a hypothetical HIV sufferer would be likely to require therefore cannot be taken into account in assessing whether the provision of ‘health care’ would be likely to result in a significant cost to the Australian community. On this view the RMOC’s opinion was invalid for the purposes of reg 2.25A."

The Dr Mijch referred to had provided a report to the RMOC.

10 His Honour then said (at [25]) it "may be that the very fact that the medication cannot be taken into account suggests that the RMOC’s opinion should be ‘read down’ and treated as not having taken the costs of the medication into account." His Honour found that if the RMOC had formed the opinion that the likely cost of quarterly monitoring by itself was "significant" that opinion would be invalid.

"Health care"

11 The first two issues identified above can be considered together. "Health care" in the present context is a composite expression. The term is defined in the Macquarie Dictionary as "the provision of medical and other services for the maintenance of health, prevention of disease, etc". This would suggest that there must be somebody other than the person referred to in the regulation who does something by way of providing health care. (The person referred to in the regulation is not the visa applicant but a hypothetical person who has the visa applicant’s disease or condition: Imad v Minister for Immigration and Multicultural Affairs [2001] FCA 1011 at [13]). Thus we are inclined to agree with the primary judge that "health care" in this context involves the provision of that care by somebody to the person. However, we doubt that such provision necessarily requires "an element of personal attention or activity" by the provider.

12 It is not necessary to mark the outer limit of the concept of the term "health care" in the context of the Regulations or to define exhaustively what kinds of persons might qualify as providers or the means by which provision might be made. The term must at least include, in our opinion, the prescription of medication by a legally qualified medical practitioner and the dispensing of that medication by a pharmacist. The fact that a particular medication is self-administered by the person, even if some considerable time after the prescription or the dispensing, cannot sensibly be isolated from the total process. Moreover, in the present case the prescription and dispensing is linked with the monitoring, which is unarguably health care.

13 We do not accept the argument of senior counsel for the respondent that "health care" is used in different senses in par (c)(i)(A) and the opening words of par (c)(ii). On the contrary, the use of the definite article in the latter provision confirms that the health care with which (ii) deals is the same as that in (i). Viewed as a whole, par (c) is concerned with a disease or condition which requires health care or community services and the cost of the provision of them.

"Significant cost"

14 Since the Tribunal did not err in relying on the opinion of the RMOC which included the cost of antiretroviral medication, there is no basis for reading down the opinion.

Orders

15 The appeal will be allowed. The orders of the primary judge made on 15 April 2005 will be set aside and in lieu thereof it is ordered that the application be dismissed. This appeal was, at the Minister’s request, brought on for an expedited hearing. It is in effect a test case. In the circumstances there will be no order as to the costs of the appeal or at first instance.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black and the Honourable Justices Heerey and Weinberg.

Associate:

Dated: 29 September 2005

Counsel for the Appellant:	A L Cavanough QC and S Donaghue
Solicitor for the Appellant:	Australian Government Solicitor
Counsel for the Respondent:	S P Estcourt SC and C G Fairfield
Solicitor for the Respondent:	Victorian Legal Aid
Date of Hearing:	17 August 2005
Date of Judgment:	29 September 2005