Federal Court. Was the MOC's opinion that the costs would be likely to result in a significant cost to the Australian community in areas of health care and community services incorrect "because it included State disability services costs when in fact the NSW State disability services had been subsumed into the NDIS from 1 July 2018"?
PIC 4005(1)(c)(ii)(A) of Schedule 4 to the Migration Regulations 1994 (Cth) required that the appellants all be "free from a disease or condition in relation to which the provision of the health care or community services would be likely to result in a significant cost to the Australian community in areas of health care and community services".
Regulation 2.25A(1) of the Regulations required that the Minister, in determining whether an applicant satisfied PIC 4005, seek the opinion of a Medical Officer of the Commonwealth (MOC). Regulation 2.25A(3) provided that the Minister must take the opinion of the MOC to be correct for the purposes of deciding whether a person meets a requirement or satisfies a criterion.
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: If a MOC incorrectly applies the law relevant to the assessment test under PIC 4005(1)(c), is the decision of the Minister or Tribunal applying the MOC opinion affected by error?
Question 2: If the answer to Question 1 is 'yes', is that error necessarily material and therefore jurisdictional?
Question 3: Can it be said that PIC 4005 "requires the MOC to ascertain the form or level of condition suffered by the applicant in question and then to apply the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition"?
Question 4: Was the MOC's opinion that the costs would be likely to result in a significant cost to the Australian community in areas of health care and community services incorrect "because it included State disability services costs when in fact the NSW State disability services had been subsumed into the NDIS from 1 July 2018"?
The FCA answered those questions as follows: