Australian Immigration Daily News

The Federal Circuit Court has held that it is jurisdictional error for the Migration Review Tribunal to accept an opinion of the Medical Officer of the Commonwealth that is not supported by the evidence. The Court has also ruled that it is jurisdictional error for the MRT to refuse to grant an adjournment of proceedings in order to enable the review applicant to obtain information to refute the unsubstantiated or incorrect findings of the Medical Officer.

These findings were handed down in the case of Haque & Ors v Minister for Immigration & Anor, (2015) FCCA 1765 (2 July 2015). The decision is significant for all RMAs who are assisting applicants with appeals to the MRT following the Department’s refusal of a visa due to alleged failure to satisfy the “health criterion” of PIC 4005.

The background of this case was that the “primary applicant” was a citizen of Hungary who was seeking a subclass 886 Skilled Sponsored visa.  The primary applicant had two children, one of whom was a 12-year old girl who was suffering from “autistic spectrum disorder”.  

After this daughter attended a panel doctor for a health assessment, a “Form 26 Medical examination” form was completed which indicated that the girl had an intellectual disability that involved language delay and learning difficulties.  The panel doctor then sought an assessment from the girl’s treating pediatrician. The medical report provided by the treating doctor stated that the girl had a “moderate developmental delay and behavioural problem” but that she was “functioning fairly well and attending to all her personal hygiene activities of daily living”.

Following this assessment, the Medical Officer of the Commonwealth gave an opinion that the girl had a “significant developmental delay” and that she would therefore be likely to require health care or community services.  On the basis of this opinion, the Departmental officer who was reviewing the application found that PIC 4005 was not satisfied, and denied the application.  The appeal to the MRT then followed.

In the course of the appeal, a variety of reports that had been prepared concerning the girl’s condition by pediatricians and a psychologist was submitted to the MRT.  Also, at the request of the visa applicant, the MRT requested a further opinion from the Medical Officer of the Commonwealth.  This second MOC opinion stated that the girl was “totally dependent in all of her activities of daily living” and that on that basis she would be “likely to require long term community support services”.

Although the visa applicant informed the MRT that she did not agree with this second opinion that her daughter was “totally dependent” and asked the MRT for further time in order to obtain a specialist’s opinion, the MRT refused to grant that request.   The MRT determined that it was “legally bound” to accept the second opinion of the MOC. It therefore proceeded to affirm the Department’s earlier finding that PIC 4005 was not satisfied, and thus upheld the Department’s refusal of the visa application.

When this decision of the MRT was appealed, the Federal Circuit Court concluded that the second opinion of the Medical Officer of the Commonwealth (which had been requested during the MRT appeal) was seriously flawed. The Court determined that the conclusion of the MOC was not supported by the evidence of the physicians and psychologist who had evaluated her, and that she was not, as a matter of fact, “totally dependent in all her activities of daily living”.  In the Court’s view, the opinion of the MOC that the girl was “totally dependent” was “wrong on any view of the material”.

The Court held (quite unsurprisingly!) that in providing opinions, the MOC is “required to act reasonably”, and that for any opinion to be “legally effective”, there must be facts, evidence or a logical basis for the opinion. In the particular circumstances of the case, all of the material on which the second opinion of the MOC was based (that the girl was totally dependent) was contradicted by the evidence which the MOC claimed to have relied upon.  As a matter of fact, none of the medical or psychological evidence concerning the girl supported a conclusion that she was “totally dependent”.  

Because the opinion of the MOC was not legally valid, the Court determined that the MRT was not bound to accept that opinion. Furthermore, the Court concluded that the MRT had committed jurisdictional error by considering that it was bound to adopt the invalid opinion of the MOC.

The Court also found that the MRT had been guilty of a second jurisdictional error by refusing to grant the applicant an adjournment of the review proceedings in order to obtain evidence to contest the baseless opinion of the MOC.

The lesson of this case is that the opinions of the MOC are able to be challenged successfully. This is so notwithstanding the fact that Regulation 2.25A (3) provides that the Minister (and thus the Minister’s delegates and the MRT) is to “take” the opinion of the MOC to be correct for the purposes of determining whether a person satisfies the criteria of PIC 4005. 

It is likely that efforts to contest the opinions of the MOC in the MRT will have the best prospects in cases such as Haque, where there is literally no evidence on the record to support the findings made by the MOC. 

 This article was prepared by Michael Arch, Concordia Pacific Migration Lawyers, Email: This email address is being protected from spambots. You need JavaScript enabled to view it.  Tel: (02) 8068 8837