The critical implications of the decision of Haque & Ors v Minister for Immigration & Anor [2015] FCCA 1765 (2 July 2015) in terms of the binding nature of opinions of Medical Officers of the Commonwealth (“MOC”) appointed by the Minister, are as it is stated in regulation 2.25A of the Migration Regulations 1994 (Cth) the (“Regulations”).
In that the opinion of the MOC is to be taken as to be correct in determining whether a person meets the requirements of Public Interest Criteria (“PIC”) 4005. The delegate of the Minister is not to form their own opinion on whether or not an applicant meets the requirements of PIC 4005.
This is as it pertains to the schedule 2 requirements of an application for certain visas, in this case it …show more content…
The Administrative Appeals Tribunal does not have to take the opinion to be correct as in regulation 2.25A, and is not bound by the opinion.
Furthermore, if a decision is based upon mistaken facts it may be set aside as has been established in the case of House v R [1936] HCA 40; (1936) 55 CLR 499 (17 August 1936).
Moreover the implications are that when the presiding Tribunal for merits review cases, currently the Administrative Appeals Tribunal (Migration and Refugee Division), is reviewing a case they must ensure that the opinion of the MOC is based upon the facts of the case as provided by the evidence.
Evidence which is of most relevance is an opinion derived from an actual examination of the applicant by the MOC combined with other medical reports, not just an opinion loosely based upon reports from other medical professionals. The Tribunal must ensure that the opinion of the MOC is supported by this kind of evidence, that the MOC in making an opinion has acted reasonably and that there is also a logical basis for the …show more content…
This is also significant for any Registered Migration Agent (“RMA”) who has a client who they are assisting in the appeals process at the Administrative Appeals Tribunal in relation to PIC 4005.
In conclusion, it has become apparent that as a result of the decision of the Federal Circuit Court in this case, a precedent has been set in that opinions of MOCs are not as binding as they were originally considered. That an opinion of any particular MOC can be challenged, if the opinion was not formed according to the law, or if it is contradicted by the evidence.
The Tribunal when conducting merits review must carefully consider whether or not the opinion of each MOC was based upon the evidence and the facts of the case. As well as ensuring that the applicant has had an opportunity to examine and respond to the opinion of the
In that the opinion of the MOC is to be taken as to be correct in determining whether a person meets the requirements of Public Interest Criteria (“PIC”) 4005. The delegate of the Minister is not to form their own opinion on whether or not an applicant meets the requirements of PIC 4005.
This is as it pertains to the schedule 2 requirements of an application for certain visas, in this case it …show more content…
The Administrative Appeals Tribunal does not have to take the opinion to be correct as in regulation 2.25A, and is not bound by the opinion.
Furthermore, if a decision is based upon mistaken facts it may be set aside as has been established in the case of House v R [1936] HCA 40; (1936) 55 CLR 499 (17 August 1936).
Moreover the implications are that when the presiding Tribunal for merits review cases, currently the Administrative Appeals Tribunal (Migration and Refugee Division), is reviewing a case they must ensure that the opinion of the MOC is based upon the facts of the case as provided by the evidence.
Evidence which is of most relevance is an opinion derived from an actual examination of the applicant by the MOC combined with other medical reports, not just an opinion loosely based upon reports from other medical professionals. The Tribunal must ensure that the opinion of the MOC is supported by this kind of evidence, that the MOC in making an opinion has acted reasonably and that there is also a logical basis for the …show more content…
This is also significant for any Registered Migration Agent (“RMA”) who has a client who they are assisting in the appeals process at the Administrative Appeals Tribunal in relation to PIC 4005.
In conclusion, it has become apparent that as a result of the decision of the Federal Circuit Court in this case, a precedent has been set in that opinions of MOCs are not as binding as they were originally considered. That an opinion of any particular MOC can be challenged, if the opinion was not formed according to the law, or if it is contradicted by the evidence.
The Tribunal when conducting merits review must carefully consider whether or not the opinion of each MOC was based upon the evidence and the facts of the case. As well as ensuring that the applicant has had an opportunity to examine and respond to the opinion of the