PIC 4005 / 4007 policy might be unlawful

Federal Court (Full Court): Are MOCs allowed to calculate what constitutes "significant costs" under PIC 4007(1)(c)(ii)? Does the degree with which MOCs are required to describe the particularity of the "form or level" of a condition "depend upon the extent to which there is diversity in the experience for those with the particular type of condition"? Who bears the onus of proving that degree on judicial review? Are MOCs' opinions binding for the purposes of waiver? If not, are they at least relevant for those purposes? Can a decision be vitiated with jurisdictional error for having relied on a MOC opinion based on outdated information? If so, must there be a "real indication in the material that the condition ... was changing" in order for the information to be outdated? Does this decision resolve the Ibrahim / Nguyen tension?

In Robinson, the Federal Court had held that: it is a jurisdictional error for a decision-maker to treat a MOC's opinion as binding if that opinion does not conform to PIC 4007(1)(c); in order to conform to that provision, a MOC must "form an opinion by ascertaining the form or level of condition suffered by a visa applicant and then applying the statutory criteria by reference to an hypothetical person who suffers from that form or level of condition".

The questions to the Full Court of the Federal Court (FCAFC) were as follows:

Question 1: Are MOCs "equipped by training to undertake a detailed economic assessment of the lifetime of cost that may be expected expressed in dollar terms", pursuant to PIC 4007(1)(c)?

Question 2: Does the degree with which MOCs are required to describe the particularity of the "form or level" of a condition "depend upon the extent to which there is diversity in the experience for those with the particular type of condition"?

Question 3: Who bears the onus of proving that a MOC's description of the "form or level" of a condition is not "sufficiently particular to enable the [MOC] to perform the statutory function of forming an opinion as to the general extent of health care or community services likely to be required by a person with the same form and level of condition as [a visa applicant]"?

Question 4: Are MOCs' opinions binding for the purposes of waiver under PIC 4007(2)?

Question 5: If the answer to Question 4 is "no", are those opinions at least relevant for the purposes of waiver under PIC 4007(2)?

Question 6: Can a decision be vitiated with jurisdictional error for having relied on a MOC opinion based on outdated information?

Question 7: If the answer to Question 6 is "yes", must there be a "real indication in the material that the condition ... was changing" in order for the information to be outdated?

Question 8: If the answer to Question 7 is "yes", was there "indication in the material that the condition" in the present matter was changing?

Question 9: In determining whether an error is material, would a court "usurp the statutory task entrusted to the" administrative decision-maker by forming its own view as to what the result should or could have been had the error not been made?

Question 10: In order to determine whether an error was material and thus jurisdictional, is it "necessary to consider what might have been presented to the Tribunal" had the error not been made? That question relates to what we have described as the Ibrahim / Nguyen tension.

The FCAFC answered those questions as follows:

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