FEDERAL COURT OF AUSTRALIA Bui v Minister for Immigration & Multicultural Affairs [1999] FCA 118 ADMINISTRATIVE LAW – immigration law – grant of visa – Public Interest Criteria in Item 4007 Schedule 4 – whether borderline intellectual functioning amounts to "significant cost to the Australian community in the areas of health care or community service" – whether Medical Officer of the Commonwealth erred in expressing an opinion on the question of waiver – whether ministerial consideration of waiver power was unduly restricted – invalidity of reg 2.25B requiring the Medical Officer to consider applicant's "need and eligibility for health care or community services". Migration Act 1958 (Cth), ss 65 and 505 Migration Regulations, regs 2.25A, 2.25B and Sch 4 item 4007 Minister for Immigration and Multicultural Affairs v Seligman [1999] FCA 117 applied Seligman v Minister for Immigration and Multicultural Affairs [1998] FCA 346 not followed TAM ANH BUI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS VG 584 of 1997 FRENCH, NORTH AND MERKEL JJ 1 MARCH 1999 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIAN DISTRICT REGISTRY VG 584 OF 1997 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: TAM ANH BUI Appellant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGES: FRENCH, NORTH AND MERKEL JJ DATE OF ORDER: 1 MARCH 1999 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The appeal is allowed. 2. The order made by the learned trial judge on 12 March 1998 dismissing the application with costs be set aside. 3. The respondent's decision of 23 September 1997 refusing the grant of a Special Assistance Visa be set aside. 4. The matter be remitted to the respondent for reconsideration according to law on the basis that Regulation 2.25B is invalid. 5. There be no order for the costs of the appeal. 6. The respondent pay the appellant's costs of the application other than the hearing before the primary Judge. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIAN DISTRICT REGISTRY VG 584 OF 1997 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: TAM ANH BUI Appellant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: FRENCH, NORTH AND MERKEL JJ DATE: 1 MARCH 1999 PLACE: MELBOURNE REASONS FOR JUDGMENT THE COURT: Introduction 1 Tam Anh Bui is a young Vietnamese man who is said to have borderline intellectual functioning. He has nevertheless completed nine years of primary and secondary education in Vietnam and lives an independent life in that country. He is generally in good health. Mr Bui's grandfather, three uncles and two aunts, all but one of whom are Australian citizens, live in Western Australia. 2 He has applied, with their support, for a visa to travel to and reside in Australia. That application has been refused by a delegate of the Minister for Immigration and Multicultural Affairs because, in the opinion of a Medical Officer of the Commonwealth, his stay in this country is likely to result in a significant cost to the Australian community in the areas of health care or community services. Mr Bui challenged the decision of the delegate by way of an application for an order of review before a Judge of this Court. That application was dismissed and he now appeals from that decision to the Full Court. Factual History 3 Tam Anh Bui is a 25 year old national of Vietnam born in that country on 7 March 1973. His parents and two brothers live in Vietnam. His grandfather, Cong Van Dao, an Australian citizen lives in Western Australia. Three of his uncles and two aunts also live in Western Australia and all but one of them are Australian citizens. In July 1990 Mr Bui left Vietnam, apparently illegally and travelled to Indonesia where he spent four years in a camp operated by the United Nations High Commission on Refugees. He was voluntarily repatriated to Vietnam on 21 July 1994 where he has resided until the present time. 4 On 4 December 1995 Mr Bui applied at the Visa Office of the Australian Consulate-General in Ho Chi Minh City for permission to travel to and enter Australia on a Vietnamese [Special Assistance Category] Visa. His nominator was his uncle, Dao Van Hoang. The application was made on his behalf by Barlow & Co., Solicitors. Dao Van Hoang is the brother of Mr Bui's mother. He has been an Australian citizen since 28 August 1986 and has resided in Australia since that time. He owns and manages a Vietnamese restaurant in Highgate, an inner city suburb of Perth. 5 In support of his application for the grant of the visa to his nephew, Mr Hoang provided a signed undertaking in the following terms: "HOANG VAN DAO declare that I/We will provide assistance with regard to: (a) food, clothing, accommodation and household goods; (b) access to community and public services; (c) obtaining employment; (d) language interpretation and securing English language instruction; (e) helping them to become involved in both the wider Australian community and their own ethnic community and encouraging them to become self reliant as quickly as possible. It is proposed that…BUI ANH TAM…will be accommodated at (address supplied) Morley W.A. 6062." Further documentation was provided to the Visa Office of the Consulate-General in Ho Chi Minh City on 24 April 1996 including a curriculum vitae from the Vietnamese Government which indicated that Mr Bui had completed nine years of primary and secondary education. It also noted that following his repatriation to Vietnam from Indonesia he had learnt to operate lathes. There was a delay of some months and a copy of Mr Bui's uncle's travel visa to Australia was requested and provided to the Consulate-General's office in November 1996. 6 On 26 November 1996 Mr Bui underwent a psychiatric examination at the Mental Health Centre in Ho Chi Minh City. A report of that examination was prepared. The question whether the report could be received in evidence at the hearing of this appeal was in contention. It is convenient to refer to its contents here in the appropriate chronological sequence and deal with the question of its admission in evidence later in these reasons. Mr Bui had been referred for the psychiatric examination by a Doctor Hang for reasons described as "slow in contact" and "history of treatment for neurasthenia". The report identified as its source of information: "Local Authorities, Mr Bui's mother and the examination itself." It set out an apparently normal history of childhood development and described his educational history thus: "He started school at 6 y.o. Diligent and obedient, he had average achievements without class repetition. He left school at Grade 9/12 in order to help his family affairs, to raise pigs and chicks due to familial difficulties." He was described as living on good terms with others, having normal friendships, enjoying music, swimming and sports. His personality was described as "good mannered". Under the heading "History of Mental Problems" it was said: "His mother and he declare about in 1992, while in a Concentration Camp in Indonesia, he usually suffered from headache. Seen by a doctor with the diagnosis of sinusitis and treated for about 2 months with medication of kind unknown to him, with good remission. In 1994 he was sent back home. His headache relapsed, along with insomnia. Seen by a doctor with the diagnosis of chronic sinusitis and neurasthenia and treated with Analgesics, anti-biotics, minor tranquillisers, and Vitamines B1, B6 and B12. For 5 months now he no longer suffers from headache and sleeps soundly at night. Treatment stops. Displayed no other psychotic symptoms." The report included observations indicating appropriate mood and affect, normal orientation and normal memory. Under the heading "Intellectual functioning" the following appeared: "*General knowledge: Can name Vietnam's capital – Hanoi. Can name the countries which Vietnam borders – China, Laos and Campuchea (sic). Can name the capitals of Thailand, China, the USA, Russia and France, but not of Campuchea (sic) or Laos. *Can do a few common and simple calculations in mind slowly 100:4 = 25; 20:5 = 4; 3 x 6 = 18; 25:5 = 5 *Can differentiate between a policeman and a soldier, but not well and needs to be reminded of details. *Can explain both figurative and literature senses of Vietnamese sayings and proverbs such as those similar to: "Evil communications corrupt good manners" "Many hands make light work" *Normal attention and concentration. Can do the serial 7 test. *Thinking: coherent contents. Gives proper answers. No obsession or delusion is found out. *Perception no hallucination is discovered. Calm behaviour. Results of psychological test: 60<IQ<70" The report concluded with a section headed "Evaluation and Recommendation" in the following terms: "XV Evaluation and Recommendation. This is a 23-year-old single male patient. He left school at grade 9/12. Referred due to "slow in contact and history of treatment neurasthenia" Through the exam and information collected, in 1992, while in a Concentration Camp in Indonesia, he was treated for sinusitis. In 1994 he returned to Vietnam and relapsed with headache and insomnia. Diagnosed as having chronic sinusitis and neurasthenia. He took Analgesics, anti-biotics and vitamines B1, B6, B12. For 3 months now he has markedly remitted and sleeps soundly at night. According to his mother's and his declarations, beside the above symptoms, he has no other psychotic symptoms. Through the exam he appears a little sluggish and limited in general knowledge and in calculating. His other intellect functions appear normal. Intelligence test: 60<IQ<70 Combined the clinic exam and test result, there is no psychotic symptoms. In the future he can hold a job and support himself. No need of extensive medical care. He is fit to travel with his family. XVI Diagnosis V62.89 Border line intellectual functioning." 7 On 14 December 1996 Mr Bui underwent a medical examination by Dr Vu Quang Canh. This detected no medical abnormality other than "chronic sinusitis: neurasthenia treated with analgesics, anti-biotics". However under the heading "Intelligence" the word "Abnormal" was marked and the following entry made: "Report of MHC: Borderline Intellectual functioning" At the end of the report after the direction "Please list significant history or abnormal findings" the words "borderline intellectual functioning" were repeated. A radiological report based on x-rays on 19 November indicated no abnormality. 8 On 20 January 1997 a Medical Officer of the Commonwealth advised the Department of Immigration and Multicultural Affairs that Mr Bui failed to meet requirements for the Special Assistance Visa, in substance because of his "borderline intellectual functioning". The substantive part of the opinion was in the following terms: "My opinion is based on available medical and radiological information and the duration of stay sought in Australia, In my opinion, the abovementioned person does not meet the prescribed health criteria for the proposed duration of stay for the following reason/s as set out in the Migration Regulations at Schedule 4, at sub paragraph 4007(1)(c)(i) that is: the applicant is a person who has a disease or condition that, during the applicant's proposed period of stay in Australia would be likely to: result in a significant cost to the Australian community in the areas of health care or community services. MY REASONS ARE AS FOLLOWS:- This 23 year old male applicant has been diagnosed as "Borderline Intellectual functioning" with an IQ = 60-70. Due to this therefore it is expected that the a/n will be a cost to the Australian community (in special training and financial support)." 9 On the same day the Medical Officer provided a document entitled "Waiver Opinion". This was in the following terms: "The following opinion regarding the abovenamed applicant is for the purpose of consideration of waiver of the requirements of paragraph 4007(1)(c) or 4006A(1)(c) at Schedule 4 (Public Interest Criteria) in the Migration Regulations. Public Health/Danger to the Community In my opinion, on the basis of the available medical evidence, the applicant satisfies the requirements of paragraphs 4007(1)(a) and 4007(1)(b)…at Schedule 4 (Public Interest Criteria) in the Migration Regulations. That is, the applicant: (a) is free from tuberculosis; and (b) is free from a disease or condition that is, or may result in the applicant being a threat to public health in Australia or a danger to the Australian community. Cost to the Australian Community In my opinion, the likely cost to the Australian community of health care or community services is $420,000 (in financial support). Access to Health Care or Community Services The applicant could be unlikely, as a result of a disease or condition, to prejudice the access to health care or community services of any Australian citizen or Australian permanent resident." 10 On 13 February 1997 the Visa Office of the Consulate-General wrote to Mr Bui through his solicitors referring to the public interest criterion for the grant of a Special Assistance Visa and in particular to the requirement for a medical examination assessed by a Medical Officer of the Commonwealth of Australia. 11 The letter then went on: "Section 57 of the Migration Act requires that I advise you of any adverse information which may lead me to refuse your visa application and provide you with an opportunity to comment on this information. On 20 January 1997 an MOC assessed your medical and radiological information provided to the National Health Clearance Unit in Australia. An assessment by the MOC states that you do not meet the health requirements for a subclass 217 visa (public interest criterion 4007 of the Migration Regulations). A copy of that opinion is attached for your information. The cost health care and financial services referred to in this opinion amounts to AUS420,000. This may amount to an undue cost to the Australian community and lead to a refusal of your application. Schedule 4 of the Migration Regulations provides the Minister (or his delegate) with the power to waive the criterion where the Minister is satisfied that compassionate or compelling circumstances justify waiver of the criterion. Should you believe that there are compassionate or compelling circumstances in your case which would justify a waiver of the criterion and therefore that your visa application should not be refused on this basis, then you are required to provide your reasons in writing to this office." The letter attached the first advice from the Medical Officer of the Commonwealth. It is not clear whether the "Waiver Opinion" was also attached. 12 Mr Bui's solicitors subsequently sought an extension of time within which to respond and began to pursue access to the documents underlying the MOC's medical opinion under the Freedom of Information Act 1982 (Cth). Access to documents was granted on 2 July 1997. The documents so released did not include either the report of the psychiatric evaluation from the MHC or Dr Vu's report. These were evidently not in the departmental file when it was uplifted on 2 July 1997 for processing under the Freedom of Information Act. It appears moreover that they were not before the Minister's delegate when the decision to refuse the visa was ultimately made. 13 On 11 August 1997 Mr Bui's solicitors made a five page submission to the Consulate-General entitled "Appeal for Use of Waiver". They challenged the Medical Officer's opinions: "We believe that the Medical Officer of the Commonwealth (MOC) has overestimated the potential costs to the Australian community in determining that Mr Bui – who suffers from Borderline Intellectual Functioning – would be likely to cost the community some $420,000 should he be permitted to resettle in Australia. It is submitted that the MOC erred in assuming that Mr Bui would require special training and/or financial support in Australia. With regard to the actual life led by Mr Bui, we note that this young man, 24, survived in extremely difficult economic and physical conditions in Galang UNHCR Refugee Camp in Indonesia between 1990 and 1994. Prior to departing his country of origin, Mr Bui had also successfully completed some nine years of primary and secondary education. Moreover, upon return to Vietnam in July 1994, Mr Bui has continued to live an adequate independent life, notwithstanding his diagnosed intellectual condition. While we are unable to supply any alternative medical reports concerning Mr Bui's intellectual condition, we can only stress also that the applicant and his Australian family do not accept the diagnosis of the MOC. Rather, the Bui family maintains that the applicant is an intellectually able, healthy and socially well-adjusted young man who would be no detriment (financially or otherwise) to the Australian community." 14 On 23 September 1997 the delegate refused the application noting that in the opinion of the Medical Officer of the Commonwealth, Mr Bui did not meet the health requirements for a class BK Migrant Visa. He went on to say: "You were requested to provide compelling or compassionate reasons why the health requirement should be waived in your particular circumstances. The delegate of the Minister has considered your circumstances and determined that, while compassionate circumstances exist in your case, these do not justify waiver of the health requirement." 15 On 17 October 1997 Mr Bui filed an application in this Court seeking an order of review of the delegate's decision under Part 8 of the Migration Act. The application was heard by Mansfield J on 12 March 1998 and dismissed with costs on 9 April 1998. Mr Bui now appeals against the decision of Mansfield J. Statutory Framework 16 The grant of visas for non-citizens is covered in Division 3 of Part 2 of the Migration Act (ss 28-140). The primary power of the Minister to grant visas derives from s 29. There is provision for prescribed classes of visa pursuant to s 31 in addition to classes defined by other provisions of the Act itself (ss 32-38). Regulations may prescribe criteria for visas of specified classes (s 31(3)). Moreover the Regulations may provide that visas or visas of a specified class may only be granted in specified circumstances (s 40(1)). There is power for applicants to be invited to comment on information before the Minister which might lead to a refusal of the visa (ss 56-59). Medical examination in relation to the health and physical or mental condition of applicants is provided for in s 60. 17 The decision to grant or refuse to grant a visa is made under s 65 which provides, in the relevant parts: "65(1) After considering a valid application for a visa, the Minister: (a) of satisfied that: (i) the health criteria for it (if any) have been satisfied; and (ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and . . . is to grant the visa; or (b) if not so satisfied, is to refuse to grant the visa." 18 Regulation 2.01 of the Migration Regulations identifies the prescribed classes of visas by reference to Schedule 1 which includes as Item 1132 Vietnamese (Special Assistance) (Class BK). That item specifies only one subclass of such visas, namely 217 (Vietnamese). 19 Regulations 2.02 and 2.03 define the criteria for each subclass of visa by reference to Schedule 2 which sets out each subclass and those criteria. Regulation 2.03 also provides for the incorporation by reference into the Schedule 2 criteria of additional criteria set out in Schedules 3, 4 and 5. 20 One of those criteria relevant to the Special Assistance Visa, namely 217.225, incorporates by reference Public Interest Criteria set out in Schedule 4 and numbered 4001 to 4004, 4007, 4009 and 4010. These are to be satisfied at the time of the Minister's decision. Relevantly for present purposes, Item 4007 requires that: '4007(1) The applicant: (a) is free from tuberculosis; and (b) is free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community; and (c) subject to subclause (2), is not a person who has a disease or condition that, during the applicant's proposed period of stay in Australia, would be likely to: (i) result in a significant cost to the Australia community in the areas of health care or community services; or (ii) prejudice the access of an Australian citizen or permanent resident to health care or community services; and (d) if the applicant is a person from whom a Medical Officer of the Commonwealth has requested a signed undertaking to present himself or herself to a health authority in the State or Territory of intended residence in Australia for a follow-up medical assessment, the applicant has provided such an undertaking. (2) The Minister may waive the requirements of paragraph (1)(c) if: (a) the applicant satisfies all other criteria for the grant of the visa applied for; and (b) the Minister is satisfied that the granting of the visa would be unlikely to result in: (i) undue cost to the Australian community; or (ii) undue prejudice to the access to health care or community services of an Australia citizen or permanent resident." 21 Regulation 2.25A requires the Minister to seek the opinion of a Medical Officer of the Commonwealth on certain of the criteria: "2.25A(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(a), 4005(b), 4005(c), 4006A(1)(a), 4006A(1)(b), 4006A(1)(c), 4007(1)(a), 4007(1)(b) or 4007(1)(c) of Schedule 4 unless: . . . (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." 22 Regulation 2.25B prescribes the approach to be taken by the Medical Officer in relation to costs and access criteria: "2.25B In determining whether or not, during an applicant's proposed period of stay in Australia, a person's disease or condition would be likely to: (a) result in a significant cost to the Australian community in the areas of health care or community services; or (b) prejudice the access of an Australian citizen or permanent resident to health care or community services; the Medical Officer of the Commonwealth must consider the person's need and eligibility for health care or community services, without regard to whether that person will use the services." These latter regulations are purportedly made pursuant to s 505 of the Act which provides: "505. To avoid doubt, regulations for the purpose of prescribing a criterion for visas, of a class may provide that the Minister, when required to decide whether an applicant for a visa, of the class satisfies the criterion: (a) is to get a specified person or organisation, or a person or organisation in the specified class, to: (i) give an opinion on a specified matter; or (ii) make an assessment of a specified matter; or (iii) make a finding about a specified matter; or (iv) make a decision about a specified matter; and (b) is: (i) to have regard to that opinion, assessment, finding or decision in; or (ii) to take that opinion, assessment, finding or decision to be correct for the purposes of: deciding whether the applicant satisfies the criterion." This Court has now held in Minister for Immigration and Multicultural Affairs v Seligman [1999] FCA 117 that Regulation 2.25B is ultra vires s 505 and therefore invalid but severable. The appeal in Seligman and this appeal were heard consecutively on the same day. The validity of reg 2.25B was not raised by either party in either appeal. It was raised subsequently by the Court. The parties in each case were invited to make additional submissions on that question before judgment was delivered. In the judgment in Seligman, which is also delivered today, reg 2.25B has been declared to be invalid and this judgment adopts and will apply that holding. 23 Regulation 1.03 defines "Medical Officer of the Commonwealth" as "a medical practitioner appointed by the Minister in writing under regulation 1.16AA to be a Medical Officer of the Commonwealth for the purposes of these Regulations." Regulation 1.16AA provides: "1.16AA The Minister may, by writing signed by the Minister, appoint a medical practitioner to be a Medical Officer of the Commonwealth for the purposes of these Regulations." The Decision of the Trial Judge 24 The learned trial judge considered and rejected a number of contentions advanced on behalf of Mr Bui. In particular he rejected the submission that "health care or community services" referred to in criterion 4007(1)(c) was limited to care or treatment. The words "community services" were not to be read down because they appeared with the words "health care". The Medical Officer of the Commonwealth did not misconceive the construction of the term "health care or community services" when he referred in his opinion to "special training and financial support" as an element of that collocation. Moreover the Minister's delegate, under Regulation 2.25A(3) was bound to accept the view of the Medical Officer and did not err in law in so doing. It was not open to the applicant to contend that the Medical Officer of the Commonwealth had misinterpreted the phrase "health care or community services" in a way that affected the decision of the Minister's delegate because the Minister's delegate was bound to adopt it. 25 His Honour was unable to conclude on the evidence how the Medical Officer's estimate of the cost of health care or community services likely to be incurred by Mr Bui was measured. He rejected an argument on behalf of Mr Bui that the relevant cost was the net cost after taking account of the undertaking offered by the nominator. He noted indeed that the undertaking in subclause (v) seemed to involve providing assistance to the applicant in accessing community services. As to the impact of the undertaking on the question whether the estimated cost would be "undue" his Honour concluded that the undertaking had no direct impact upon whether the cost would be likely to be incurred in fact by the Australian community. Although his Honour did not know how the figure of $420,000 was arrived at, he did reject an hypothesis advanced for the applicant that it had been calculated on the assumption of an expense of $200 per week for a male aged 23, ceasing upon attaining age 60. 26 His Honour also rejected a submission that the delegate's consideration of waiver of the requirements of criterion 4007 was erroneously limited to "compassionate circumstances". He noted the invitation to the applicant's solicitors to make submissions and held there was no foundation for thinking that the applicant was not given the opportunity to say or put anything he wished to put. The major factor urged upon the Minister's delegate was the existence of compassionate circumstance. Those circumstances had been taken into account. It was neither inappropriate nor indicative of error for the decision as notified to be in the terms expressed. We note that in fact the invitation to the applicant's solicitors was to make submissions about "compassionate or compelling circumstances" which would justify the waiver. 27 A further contention was advanced that the Regulations contemplated a two stage decision making process under par 4007 which, by reason of the Waiver Opinion of 20 January 1997, had been telescoped by the Minister's delegate. However, the fact that the Minister's delegate had received the Waiver Opinion contemporaneously with the Medical Opinion from the Medical Officer of the Commonwealth, did not foreclose his decision under 4007(2) of the criteria. It was simply a piece of information then to be considered. 28 In addition, his Honour rejected a contention that s 56 obliged the Minister's delegate to disclose the medical report of 14 December 1996 or any Medical Health Centre medical report. And even if the medical report of 14 December 1996 had been shown to the applicant there was no information on the topic beyond that contained in the material of which the applicant was given notice and upon which he was given the opportunity to respond generally. There was nothing to indicate that the Minister's delegate had regard to the Medical Health Centre report or had access to or regard to any other information as to how the Medical Officer of the Commonwealth had formed the opinions expressed including his assessment of the applicant's level of intelligence. 29 On these bases the learned trial judge dismissed the application. Grounds of Appeal 30 The grounds of appeal set out in the Notice of Appeal originally lodged in this matter alleged that the learned trial judge erred: "1. In construing clause 4007(1)(c)(i) of Schedule 4 to the Migration (1994) Regulations as including "financial support" as an element of the term "health care and community services". 2. In construing the effect of Reg. 2.25A(3) of the Migration (1994) Regulations as preventing the Federal Court from considering whether a Medical Officer of the Commonwealth providing a report for the purposes of the Migration Regulations has adopted an incorrect construction of those regulations. 3. In holding that the question of whether the medical officer of the Commonwealth had adopted an erroneous construction of the term "health care or community services" was concluded adversely to the appellant by the certificate of that medical officer of the Commonwealth by virtue of Reg. 2.25A(3) of the Migration (1994) Regulations. 4. In holding that on its proper construction Clause 4007(1)(c) of the Migration (1994) Regulations authorised the finding of the "significant cost" to the Australian community in the areas of health care or community services without the basis of that cost being known. 5. In holding that the concept of "costs" to the Australian community within Clause 4007(1)(c)(i) of the Migration (1994) Regulations did not permit regard to be had to the support available to an applicant from non-government sources within the Australian community." Appeal ground 5 was abandoned. The Notice was amended on the hearing of the appeal, without opposition, to include a sixth ground that the learned trial judge erred: "6. In holding that because the existence of "compassionate or compelling circumstances" is relevant to the question of determining whether a cost to the Australian community in the area of health care or community services is an "undue cost to the Australian community" within Clause 4007(2)(b)(i) of the Migration (1994) Regulations, the decision maker did not misconstrue Clause 4007(2)(b)(i) in considering only whether "compassionate or compelling" circumstances existed and failing to consider whether the supposed cost of treating the appellant was an "undue cost". 31 The appellant also sought leave to add a further ground of appeal, ground 7, dependent upon the reception by way of further evidence of the psychiatric evaluation report. That ground was in the following terms: "7. The interests of justice require that the appeal be allowed on the ground that the failure of the respondent to comply with the requirements of the Freedom of Information Act 1982 (Cth) in response to the request by the appellant's sponsor made 16 April 1997 by failing to disclose the existence of the report dated 11 December 1996 entitled "Psychiatric Evaluation Report", or to otherwise disclose the report, caused the appellant to be unable to make either his application to the respondent for a visa or his case to the learned primary Judge according to law." Health Care and Community Services – Ground 1 32 The criteria to be satisfied by an applicant for a Special Assistance Visa include a requirement that he not be a person who has a disease or condition that, during his stay in Australia would be "likely to result in a significant cost to the Australian community in the areas of health care or community services". This is the criterion imposed by Item 4007(1)(c)(i) of the Public Interest Criteria in Schedule 4 to the Migration Regulations. 33 The learned trial judge rejected a submission that "health care or community services" was limited to care or treatment in relation to the disease or condition suffered by the applicant for a visa. By his first ground of appeal Mr Bui contended that his Honour erred in rejecting that submission. The term "community services", it was said, should be read down to therapeutic services associated with a disease or condition in the nature of health care. 34 Mr Bui's submission referred to Item 4006A(2) which provides for waiver of a similar Public Interest Criterion which is not, however, applicable to the Special Assistance Visa 217.225. There, waiver of the criterion, may be given upon an employer's undertaking to meet "all costs related to the disease or condition". It is not apparent however how the contrast between Item 4006A(2) and Item 4007(2) is of assistance to Mr Bui. 35 In Seligman v Minister for Immigration and Multicultural Affairs [1998] FCA 346 (9 April 1998) Foster J held that "community services" did not encompass the provision of a disability related government pension. That was not a view which commended itself to this Court on appeal from his Honour – Minister for Immigration and Multicultural Affairs v Seligman [1999] FCA 117. The dictionary meaning of the word "service" includes "the action of serving, helping or benefiting; conduct tending to the welfare of another…friendly or professional assistance…supply of the needs of…" – Oxford English Dictionary 2nd Edition. The activities covered by these definitions do not exclude the provision of financial benefit or other support involving a cost. Item 4007 establishes a Public Interest Criterion for admission to Australia of certain classes of immigrants which has regard to the cost to the Australian community of those suffering from a disease or condition. That cost is in "the area of health care or community services". These are broad terms whose breadth is emphasised by the opening words referring to "the area of" such care or services. They cannot be read down as contended. The first ground of appeal fails. The Medical Officer's Opinion – Grounds 2 and 3 36 The second and third grounds of appeal related to his Honour's approach to the report prepared by the Medical Officer of the Commonwealth. It was submitted that there was a two stage process to be followed by the Minister in deciding whether the public interest criterion in Item 4007 was satisfied. The first stage required ministerial satisfaction that the requirements of Item 4007(1)(a), (b) and (d) were met and that the applicant was not a person of the class described in par (c). The sub-criteria in (a), (b) and (c) were, by virtue of reg 2.25A(1), to be determined by a Medical Officer of the Commonwealth whose opinion was, by virtue of reg 2.25A(3), to be taken as correct by the Minister. 37 The second stage was the waiver question under Item 4007(2). That second question, it was said, was for the Minister and not the Medical Officer to determine. It was contended that the Medical Officer had erred in expressing an opinion on the waiver issue and the Minister's delegate erred in giving effect to it. 38 The submission was made that the Medical Officer's opinion, if erroneous, could be reviewed if appropriate procedures had not been followed or if it involved an error of law. 39 If the Minister's delegate were to take as correct an opinion formed by the application of an erroneous view of the law or in a way that failed to observe a procedure mandated by law, the delegate's decision would be affected by the procedural deficiency for the error of law and could be reviewed on that basis. Putting to one side the question of validity of reg 2.25B, nothing said on behalf of Mr Bui at the hearing of this appeal disclosed such a basis for review. It may be accepted that the Medical Officer went beyond his statutory function in offering what he called his "Waiver Opinion". It had no more legal status than any other piece of gratuitous advice that might be proffered to the decision maker. There was nothing in the materials however to indicate that the Minister's delegate regarded himself as bound by that opinion. Indeed he invited submissions in relation to it. 40 The letter to Mr Bui of 13 February 1997 referred to the Medical Officer's cost estimate of $420,000 but this was challenged in the response from Mr Bui's solicitors and the delegate appears, in any event, to have focussed upon Mr Bui's need to demonstrate: "Compassionate or compelling circumstances…which would justify a waiver of the criterion." The requirement to show compassionate or compelling circumstances to attract the exercise of the waiver discretion does not appear explicitly from the language of Item 4007. It would seem however to be relevant to the discretion to waive which is enlivened but not mandated if the conditions in Item 4007(2) are met. Indeed it may play a part in the delegate's satisfaction as to those conditions for reasons which appear below. 41 In any event nothing submitted on behalf of Mr Bui under grounds 2 and 3 of the appeal disclose reviewable error. Disclosure of the Basis of the Alleged "Significant Cost" – Ground 4 42 This ground, which was appeal ground 4, focussed on the gratuitous cost estimate offered by the Medical Officer in providing his Waiver Opinion. The cost estimate appears to have been taken into account by the Minister's delegate as his letter of 13 February 1997 referred to it in the statement that: "This may amount to an undue cost to the Australian community and lead to a refusal of your application." It was said that, no basis having been disclosed for the Medical Officer's estimate, there was no rational basis for it and the decision relying upon it was not authorised by the Act. 43 The volunteering by the Medical Officer of a questionable estimate of cost may be criticised. The absence of any disclosed basis for that estimate and the apparent reliance placed upon it by the delegate raise concerns about the quality of the decision making process in this case. But these matters do not of themselves indicate error of law or procedure infecting the decision of the delegate in such a way that it would be reviewable in this case. Ground 4 is not made out. Waiver – Compassionate or Compelling Circumstances – Ground 6 44 The sixth ground of appeal was concerned with the exercise of the ministerial waiver for which Item 4007(2) provides. By the letter dated 13 February 1997, set out earlier in these reasons, the Visa Office of the Consulate-General in Ho Chi Minh City advised Mr Bui of the waiver provision. The waiver power was described in the letter as providing the Minister "with the power to waive the criterion where the Minister is satisfied that compassionate or compelling circumstances justify waiver of the criteria". Mr Bui was invited to provide reasons for waiver on these grounds to the Visa Office. 45 As the learned trial judge observed there is no provision in par 4007(2) which explicitly restricts the considerations that might be relevant to the Minister's decision whether or not to waive the requirements imposed by par 4007(1)(c). His Honour accepted that the invitation to make submissions may have been couched in a somewhat restrictive way but did not think it necessarily inappropriate. 46 Item 4007(2) specifies the conditions under which the power to waive the requirements of par 4007(1)(c) may be exercised. They are that the Minister is satisfied that the granting of the visa would be unlikely to result in: (i) Undue cost to the Australian community; or (ii) Undue prejudice to the access to health or community services of an Australian citizen or permanent resident. There are obviously broad judgments to be made in determining what amounts to "undue cost" and "undue prejudice". Reading together the criteria in Item 4007(1)(c)(i) and the criterion for waiver in 4007(2)(b)(i) it is apparent that the occasion for the exercise of the waiver will only arise where it is already established that the cost to Australia, if the visa is granted, is likely to be "significant". The Minister will therefore need to be satisfied that a likely "significant" cost will nevertheless not be "undue". In the former determination he or she is evidently to be bound by the opinion of a Medical Officer of the Commonwealth. 47 The evaluative judgment whether the cost to the Australian community or prejudice to others, if the visa is granted, is "undue" may import consideration of compassionate or other circumstances. It may be to Australia's benefit in moral or other terms to admit a person even though it could be anticipated that such a person will make some significant call upon health and community services. There may be circumstances of a "compelling" character, not included in the "compassionate" category that mandate such an outcome. But over and above the consideration of the likelihood that cost or prejudice will be "undue" there is the discretionary element of the ministerial waiver. And within that discretion compassionate circumstances or the more widely expressed "compelling circumstances" may properly have a part to play. 48 Counsel for Mr Bui submitted that the invitation to his client from the Visa Office and the decision on the waiver question was inappropriately restricted to "compelling or compassionate reasons". This is not a statutory term but was a formulation of a basis upon which the Minister would exercise his discretion. It could also have been a basis upon which the Minister will assess whether a likely cost or prejudice was "undue". The term is not restrictive because it is not limited to compassionate circumstances. It extends to "compelling" reasons. 49 In this regard there is nothing in the exchange of correspondence or the record of the ministerial decision to indicate that the delegate has taken any unduly restrictive approach to the exercise of the waiver. That comment, of course, is subject to the impact upon the delegate of the opinion provided by the Medical Officer of the Commonwealth on the public interest criteria under Item 4007(1)(c). That in turn is affected by the question of the validity of reg 2.25B. Consequences of Invalidity of Regulation 2.25B 50 The question of the validity of reg 2.25B was not raised in argument before the Court. It became a matter of concern to the Court upon consideration of the regulation after argument in this case and the case of Seligman (supra). The Court invited submissionson the question after it had reserved judgement and written submissions were filed accordingly. For reasons set out in its decision in Seligman the Court is of the opinion that reg 2.25B is invalid. 51 The Minister has submitted however that even if reg 2.25B is invalid that finding should make no difference to the outcome of the appeal. It is submitted further that Mr Bui has not sought review of the decision of the Medical Officer which is the only decision made in reliance upon regulation 2.25B. The delegate when making the decision under review was bound to take the opinion of the Medical Officer as correct. There was therefore no reviewable error on the part of the delegate. 52 The Courts opinion on this point is as set out in Seligman. The delegate is only entitled and obliged to take as correct the opinion of the Medical Officer if it is an opinion of a kind validly authorised by the regulations. If it is not, then to act upon it as though it is binding is to act upon a wrong view of the law and to err in the interpretation of the law or its application, a ground of review for which s 476 of the Act provides. 53 The Minister also submitted that on the evidence there was no basis for an inference that the Medical officer applied the invalid restriction imposed by reg 2.25B. In stating reasons for his conclusion that Mr Bui did not meet the relevant criterion the Medical Officer said: "The 23 year old male applicant has been diagnosed as "Boderline Intellectual functioning" with an IQ +60-70. Due to that therefore it is expected that the a/n will be a cost to the Australian community (in special training and financial support." 54 Read literally, it was submitted, this passage provided no basis for an inference that the Medical Officer had regard to Mr Bui's eligibility for special training and financial support without regard to whether he would in fact utilise such training and support. On the contrary it was to be expected that he would be a cost to the Australian community. There was no evidence it was said that the Medical Officer had before him when making his decision any material which would provide grounds for an opinion that eligibility for training and support would not be fully utilised by Mr Bui. Absent such material the inference that Mr Bui would so use these services was "reasonably open if not compelling". The Minister's submission pointed out that the only evidence before the Court on the point was the undertaking signed by Mr Bui's uncle. There was no evidence that the undertaking was before the Medical officer and in any event it was too limited in its duration to be of any material relevance. 55 What these submissions amount to is a contention that the Medical Officer has disregarded the restriction imposed by reg 2.25B with the entirely fortuitous result that his opinion was unaffected by its invalidity. The Medical Officer in question did, as noted earlier, offer gratuitous opinions as to waiver of the criterion which was not part of his function under the regulations. Were reg 2.25B to have been valid his opinion on the likelihood of resort to community service would have been equally gratuitous. There is some force in the Ministers submission on this point. At the end of the day however the Court is entitled to assume that the Medical Officer has acted with an awareness of the restriction imposed by reg 2.25B. The opinion he proffered was, on that assumption, not proffered as part of his statutory duty. Had it been he may have required further information before forming a concluded view. The Court is left to speculate about the approach the Medical Officer might have taken had the regulation in question not been before him. Against that speculation is the probability that his decision was affected by the constraints imposed by reg 2.25B. 56 In the event the Court is of the view that on the balance of probabilities there was an error of law on the part of the Medical Officer which affected the delegates decision and that the matter should be remitted to the delegate for reconsideration. This will require the delegate to obtain a further opinion from the Medical Officer. Further Evidence – Ground 7 57 Counsel for Mr Bui submitted that the Court should formally admit the Psychiatric Evaluation Report of 11 December 1996 in evidence pursuant to the discretion of the Court "to receive further evidence" under O 52 r 36. 58 In the light of the Court's conclusion as to the validity of reg 2.25B and the necessity therefore to remit the matter to the decision-maker for reconsideration, this issue has become academic. Given that it was argued however, it is appropriate to make some observations concerning this additional material. 59 According to an affidavit sworn by a solicitor in the employ of Mr Bui's solicitors, the report came into the possession of his solicitors on 10 September 1998 under cover of a letter from the Australian Government Solicitor. The report was not before his Honour who heard the application in March 1998. It was, however, referred to in the report from Dr Vu Quang Canh of 14 December 1996. In relation to Mr Bui's intelligence that report contained the following reference: "Report of MHC: Borderline intellectual functioning" This comment was mentioned in the proceedings before his Honour on 12 March 1998. His Honour asked counsel what "MHC" stood for. Counsel for Mr Bui was informed by counsel for the Minister and in turn informed his Honour that it was a reference to the "Mental Health Centre", which he said "raises another question as to where that came from". Mr Bui's solicitors had written to the Department of Immigration and Multicultural Affairs on 16 April 1997 requesting, pursuant to the Freedom of Information Act 1982 (Cth), access to all files and other documents held by the Department and/or the Migration Section of the Australian Consulate-General in Ho Chi Minh City regarding Mr Bui's application. This request was acknowledged on 23 April 1997. 60 On 2 July 1997 an officer of the Department wrote to Mr Bui's solicitors advising that Folios 1 to 89 of Mr Bui's departmental file were being released subject to exemptions not relevant for present purposes. When the matter was being prepared for hearing in January 1998 the Australian Government Solicitor wrote to Mr Bui's solicitors asking that Dr Vu's medical report of 14 December 1996 be included in the Court Book. They were not, at that time, aware that Mr Bui's solicitors did not have the document. 61 On 14 January 1998 Mr Bui's solicitors asked for a copy of Dr Vu's report. This was provided on 19 January 1998. The Medical Health Centre Report was not included with those documents. No express request was made subsequently from Mr Bui's solicitors for provision of a copy of the MHC Report. Eventually when the papers in relation to the appeal from the judgment of Mansfield J were being settled in July 1998 Mr Bui's solicitors requested provision of a copy of the MHC Report and this was provided by the Australian Government Solicitor on 10 September 1998. 62 A question arises why the Report forwarded from the Medical Health Centre to Dr Vu was not provided in answer to the freedom of information request. Examination of the departmental file suggests, according to the office of the Australian Government Solicitor, that the reports of Dr Vu and the Medical Health Centre were not received by the Minister's delegate in Hanoi prior to the uplifting of the file on 2 July 1997 for processing under the Freedom of Information Act. 63 It was of course open to the solicitors for Mr Bui to seek to subpoena production of the MHC Report or obtain a direction for its production from his Honour. 64 It was submitted for Mr Bui that in the light of the Psychiatric Evaluation Report it is open to him to submit the following: 1. The procedures required by the Migration Act require that a Medical Officer of the Commonwealth not express an opinion in conflict with specialist medical opinion and that procedures required by the Migration Act were not followed within s 476(1)(a). 2. The requirements of the Migration Act that the Minister "have regard" to information given in an application and on medical examination require the Minister or the Medical Officer of the Commonwealth to have regard to the actual information or medical results and not a mistranslated version. 3. The conclusion that Mr Bui suffered from a "disease or condition" described in cl 4007(1)(c) and/or the assessment of the likelihood of "significant cost" involved errors of law or were made without "evidence or other material" to support them within s 476(1)(e) and s 476(1)(g) of the Migration Act. 65 Without expressing any concluded view on these submissions, the first of which at least is very questionable, the Court is of the opinion that there was an opportunity before the learned trial judge to require the production of the MHC Report or to seek an adjournment for that purpose. The question however is now academic having regard to the views of the Court in relation to the validity of reg 2.25B. In the circumstances the Court will not receive the Psychiatric Evaluation Report in evidence. That, of course, does not prevent it from being the subject of submission by Mr Bui's advisors to the Minister's delegate when the matter is remitted for reconsideration as it now must be in any event. Conclusion 66 In this case the delegate has acted upon a determination of the Medical Officer of the Commonwealth made pursuant to reg 2.25B and upon a basis which is narrower than the criterion which the delegate was required to address. In the circumstances the appeal will be allowed, the decision dismissing the application will be set aside, the application will be allowed and the decision of the respondent set aside and remitted for reconsideration according to law. Having regard to the fact that this appeal has succeeded on a point which was not taken before his Honour, which was not raised before this Court in argument and given that the appeal would otherwise have failed, there will be no order as to the costs of the appeal. The order for costs made by his Honour will be set aside but no order for costs made in lieu thereof. I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court . Associate: Dated: 1 March 1999 Counsel for the Appellant: Mr T Hurley Solicitor for the Appellant: Barlow and Co Counsel for the Respondent: Ms M Kennedy Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 23 November 1998 Date of Judgment: 1 March 1999