AMARASEKERA v Minister for Immigration
[2005] FMCA 1500
•19 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AMARASEKERA & ANOR v MINISTER FOR IMMIGRATION | [2005] FMCA 1500 |
| MIGRATION – Review of decision of Migration Review Tribunal – factors Tribunal is to take into account – effect of Schedule 4 of the Migration Regulations1994 (Cth) – public interest criterion 4007 – failure to take into account a relevant consideration resulting in a failure to properly construe and apply criterion 4007 – decision of Tribunal set aside. |
| Migration Regulations 1994 (Cth) |
| Minister for Immigration and Multicultural & Indigenous Affairs vKodama [2003] FCA 510 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 |
| Applicants: | TISSA AMARASEKERA and SITA WASALA AMARASEKERA |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 250 of 2004 |
| Judgment of: | Hartnett FM |
| Hearing date: | 9 September 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 19 December 2005 |
REPRESENTATION
| Counsel for the Applicants: | Mr W.G. Gilbert |
| Solicitors for the Applicants: | Joseph Italiano & Associates |
| Counsel for the Respondent: | Ms H.M. Riley |
| Solicitors for the Respondent: | Clayton Utz |
ORDER
That the Migration Review Tribunal be joined in the proceedings and named as the second respondent.
That the decision of the Migration Review Tribunal dated 9 February 2004 be set aside.
That the proceedings be remitted to the Migration Review Tribunal for determination according to law.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 250 of 2004
| TISSA AMARASEKERA and SITA WASALA AMARASEKERA |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
And
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
History
These reasons shall refer throughout to the applicant being the applicant husband.
The proceedings commenced to be heard on 3 August 2005. On that day I granted leave to the applicant to file supplementary contentions of fact and law to address a contention not previously raised by the applicant. Those supplementary contentions were filed 18 August 2005 and the respondent replied by the filing of supplementary submissions on 2 September 2005. An order for costs was made against the applicant as a consequence of the adjournment of the proceedings and the applicant paid to the Solicitor for the first respondent such costs of the adjournment on 9 September 2005. The applicant also on that day filed an amended application. His originating application for an order for review was filed on 5 March 2004.
The applicant claimed in his amended application the following additional grounds:-
(2)The decision of the delegate was a nullity in that the applicant was assessed against a criterion which he was not required to satisfy, namely clause 4005 of Schedule 4 of the Migration Regulations 1994.
(3) The decision of the Tribunal was a nullity in that it could not cure the latent defect in the primary decision.
(4)If the decision of the Tribunal was not a nullity, and it was possible as a matter of law for the Tribunal to cure the defect, it did not do so.
PARTICULARS
(a)The Tribunal relied on the “opinion” of the Review Medical Officer dated 17 November 2003 which was not an opinion as required by Reg 2.25A of the Migration Regulations; and/or
(b)The Tribunal relied on the “findings and advice of the MOC”, which findings and advice were given under the incorrect criterion, namely clause 4005.
I note public interest criterion 4005 and 4007(1) are identical except that 4007(1)(c) begins with the words “subject to subclause (2).” The matters to be considered by the Commonwealth Medical Officer in making a health assessment under clauses 4005 and 4007(1) are identical.
The applicant is a citizen of Sri Lanka who was born on 2 February 1937. The applicant entered Australia on a visitor visa on 13 November 1989. That visa expired on 13 May 1990 and the applicant has held a series of bridging visas since that date. The applicant’s wife entered Australia on 23 August 1991 as the holder of a visitor visa. It expired on 25 February 1992. She has held bridging visas since that date. In the meantime, the applicant and his wife unsuccessfully applied for protection visas and change in circumstances visas. The change in circumstances visas were refused on health grounds. The applicant then applied with his spouse, born on 28 November 1926, for Resolution of Status (Temporary) (Class UH) subclass 850 visas on 31 March 1998. The delegate refused those visas on 2 August 2001. On 15 August 2001 the applicant applied to the Migration Review Tribunal (“the Tribunal”) for review of the delegate’s decision. The Tribunal affirmed that decision by a decision made on 9 February 2004.
In applying for a subclass 850 Resolution of Status visa the applicant was required to satisfy certain time of decision public interest criteria in Schedule 4 of the Migration Regulations 1994 (Cth) (the Migration Regulations). Those were as set out in clauses 4001, 4002, 4003, 4004, 4007, 4009 and 4010. The delegate in his decision noted that Regulation 850.221 required the applicant to satisfy public interest criterion 4007, summarising the effect of that criterion and attaching a copy of it to his decision. The Tribunal noted that public interest criterion 4007 was the relevant criterion.
Public interest criterion 4007 as at the time of the application, provided that:
(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 Australian 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 Australian citizen or permanent resident.
Criterion 4007 was amended by Statutory Rule No 81 of 1999 to substitute a new paragraph 1(c). The new paragraph 1(c) applied to applications not determined by 1 July 1999, such as the applicant’s application. The new paragraph 1(c) provided as follows:
(c) subject to subclause (2), is not a person who has a disease or condition to which the following subparagraphs apply:
(i) the disease or condition is such that a person who has it would be likely to:
(A) require health care or community services; or
(B) meet the medical criteria for the provision of a community service;
during the period of the applicant’s proposed stay in Australia;
(ii) provision of the health care or community services relating to the disease or condition would be likely to:
(A) result in a significant cost to the Australian community in the areas of health care and community services; or
(B) prejudice the access of an Australian citizen or permanent resident to health care or community services; and
The Tribunal set out the earlier version of criterion 4007 in its reasons instead of the later version. That mistake made no difference to the Tribunal’s decision and does not constitute a reviewable jurisdictional error (Minister for Immigration and Multicultural & Indigenous Affairs v Kodama [2003] FCA 510).
The delegate’s decision
In these proceedings, the applicant referred to a letter from the delegate to the applicant dated 2 December 1999 wherein the delegate advised the applicant that the Medical Officer found -as he did- that the applicant did not satisfy the requirement of subparagraph 4005(c)(ii)(B) of the Migration Regulations. Regulation 2.25A(3) provides the decision-maker is bound by the opinion given by the Commonwealth Medical Officer. No capacity exists for challenge of the opinion by judicial review. This is regardless of whether the opinion is provided under criterion 4005 or 4007(1). That same letter however referred to subclause 4007(2) and invited the applicant to provide information as to a Health Waiver Costing which is relevant only where the applicant has not satisfied subclause 4007(1)(c) of Schedule 4 of the Migration Regulations (no power to waive the health requirement is given in public interest criterion 4005). The delegate, in a decision dated 2 August 2001, declined to exercise the subclause 4007(2) waiver, concluding that the applicant was unable to satisfy criterion 4007. Clause 850.222 requires that each member of the family unit satisfy the health criterion. In this case, the failure by the applicant resulted in a failure in her application by his spouse. This is regardless of the fact that on 1 September 1999 a Medical Officer of the Commonwealth found the applicant’s wife to have met the health requirement for the subject visa.
The applicant had said in his application that he had no serious disease, condition or disability. However he was assessed on 16 September 1999 by a Medical Officer of the Commonwealth (“MOC”) to have non-insulin dependent diabetes mellitus, diabetic nephropathy with renal failure and was very close to needing dialysis. The MOC also stated that the applicant’s dialysis treatment was costly and would prejudice access.
On 30 September 2000 the delegate had sought advice from the MOC on the likely cost to the community if the health criteria were waived. The MOC replied that the degree of prejudice to access health care or community services by Australian citizens or permanent residents was likely to be significant and the likely lifetime cost to the Australian community for health care and social services would be in the region of $800,000 based on the cost of haemodialysis being in the order of $80,000 per year. The delegate elected not to waive the health criterion and rejected the application on the grounds that the applicant did not meet that criterion.
Given that public interest criterion 4005 and 4007(1) are to all intents and purposes identical, and given that the doctor was required to consider exactly the same matters in each case, I accept the respondent’s submission that it cannot be said that the delegate’s decision was based on an assessment of the wrong matters. The delegate himself made a decision based expressly on criterion 4007.
The Tribunal proceedings
On 4 February 2002, the Tribunal invited the applicant to provide new medical documentation and details of any compelling or compassionate circumstances for waiver of the health care requirement. The applicant provided material on 12 March 2002.
On 23 July 2002 the Tribunal received an opinion dated July 2002 from a Review Medical Officer (“RMOC”) Dr. Dorner who stated the applicant did not satisfy health criterion 4005.
On 30 July 2002 the Tribunal requested an opinion from a Review Medical Officer. On 16 August 2002 the RMOC said the applicant did not meet the public interest health criterion 4007. On 25 September 2002 the Tribunal wrote to the applicant asking him to comment on the RMOC’s opinion. The applicant replied enclosing an article from a Sri Lankan newspaper saying that the number of dialysis machines in Sri Lanka were inadequate for the number of people needing them. The applicant also said that dialysis was only available in Colombo at a cost of $250 per month and it would cost him $2,000 per month to live in Colombo which his children could not fund. He also provided a letter from a Dr Brown stating it would not be possible for the applicant to continue dialysis in Colombo which would mean death in 1-2 weeks.
On 18 November 2002 a Tribunal memo noted there have been improvements in dialysis technology and suggesting that an update of the cost of dialysis should be obtained. On 20 November 2002 the Tribunal wrote to the RMOC requesting an updated estimate of the cost of the review applicant’s treatment. The RMOC said the costs related to end-stage renal failure and the likely cost to the Australian community would be $650,000.
At the Tribunal hearing on 6 May 2003, the applicant said that Medicare had paid for his medical treatment to date. He had haemodialysis three times per week. He worked and received $1,500 per month after tax. His accommodation and food was provided by his son. His wife was supported by their other son as they live in separate houses nearby. The applicant had siblings in Sri Lanka, including one in Kandy, but he could not live with any of them. His grandchildren were strongly attached to him. The applicant’s sons gave evidence the eldest son stating that he could not afford to support the applicant and the applicant’s wife (his mother) in Sri Lanka to enable them to have a complete lifestyle in Sri Lanka. He stated his mother would not survive in Sri Lanka because she was so attached to his children.
On 13 May 2003 the Tribunal wrote to the Kidney Patients Welfare Society of Sri Lanka requesting details of the availability and cost of dialysis outside Columbo. On 19 May 2003 the Tribunal received a telephone call from the founder of that society who stated that there were 18 dialysis machines at Kandy Hospital, they cost $71-$79 per three hour session and patients are expected to attend two or three sessions per week.
On 21 May 2003 the applicant sent further materials to the Tribunal reiterating that Colombo was the only place in Sri Lanka were dialysis was available. The applicant also sent a further report from Dr Brown of Monash Medical Centre which purported to give evidence about the availability of dialysis in Sri Lanka.
On 4 June 2003 the Tribunal sought further information from the Department of Foreign Affairs and Trade (“DFAT”). DFAT advised on 17 June 2003 that both the Colombo General Hospital and the Kandy General Hospital provide dialysis for free. On 19 June 2003 the Tribunal wrote to the applicant inviting him to comment on that information. On 17 July 2003, the applicant said that Kandy General Hospital only provided dialysis to people undergoing kidney transplants, which cost about 100,000 rupees or $20,000. The Tribunal ascertained that 100,000 rupees are actually worth about $1,600.
Included in the many documents before the Tribunal was a response from the applicant to an invitation to comment on information. That correspondence was dated 10 July 2003. In it, further reference was made to the applicant’s wife which was as follows:
My wife being a joint applicant has satisfied all the conditions required to become a permanent resident of Australia. She has no one in Sri Lanka. Her mother father and the only sibling are dead. She only has her children who are all in Australia. For no fault of hers she has to be separated from her children if this application is rejected. My elder son who gave evidence at the Tribunal explained as to how she is attached to the grand child and the family and if separated the irreparable damage that would be caused to the grand children the citizens of Australia through mental depression, trauma and the vacuum that would be created. My son also spoke of the ordeal the 77-year-old mother who actually need care attention and love of the children is going to cope in Sri Lanka with outsiders. This is a compassionate and humanitarian ground to be considered by the Tribunal due to the fact that she has met all the requirements of being a permanent resident of Australia except that the only crime she has committed is being a co-applicant with a disable (sic) person.
On 25 June 2003 the Tribunal received a deferred opinion dated
24 June 2003 from a RMOC, who noted the recent report of Dr Fiona Brown and stated that:
There is no change in the applicant’s condition and as such he will continue to require medical care that is at a significant cost and will prejudice the access for the Australian community.
On 30 October 2003, the applicant asked the Tribunal to ask the RMOC to reassess the cost of the applicant’s dialysis to the Australian community. On 19 November 2003, the RMOC advised the applicant’s dialysis would cost $60,000 per year in Australia with a lifetime cost of $420,000, given the applicant’s age and prognosis.
The Tribunal’s decision
The Tribunal found that the applicant suffered from a medical condition that would be likely to result in a significant cost to the Australian community in the areas of health care or community services and would be likely to prejudice the access of Australian citizens or permanent residents to health care or community services. The Tribunal found that the estimated lifetime cost of the applicant’s care would be $420,000.
The Tribunal noted that the Tribunal may waive the health criterion if it was satisfied that the granting of the visa would be unlikely to result in undue cost to the Australian community or undue prejudice to the access to health care or community services of Australian citizens or permanent residents. The Tribunal noted that the departmental policy to be considered on the question of waiver said that the matters that may be taken into account included compelling circumstances, the degree of care required, the availability of private care, family circumstances and compassionate factors.
The Tribunal noted at paragraph 62-3 of its decision that haemodialysis for end stage renal failure and transplantation are amongst those health services that are in short supply in Australia, and that the provision of those services to a person may prejudice their supply to an Australian citizen or permanent resident. The Tribunal particularly noted that donor kidneys are in short supply in Australia. The Tribunal found that the applicant’s haemodialysis treatment amounted to substantial prejudice in the short term and the prospect of the applicant needing a kidney transplant in the future amounted to extensive prejudice.
The Tribunal found at paragraph 75 of its decision that free haemodialysis was available at Kandy General Hospital and thus rejected the applicant’s primary submission. The Tribunal considered that the applicant could live with his sister and that the applicant’s sons would provide him with financial assistance. The Tribunal considered that while there were “compassionate, compelling and humanitarian factors which should be taken into account”, the cost to the Australian community and the prejudice to Australian citizens and permanent resident would be undue, and that such factors were not sufficient to justify the waiver of the health criterion. The circumstances of and effect upon the applicant’s wife, as put by the applicant to the Tribunal were not considered save for the fact it “would be more cost efficient for the review applicant’s family in Australia for the review applicant and his spouse to live with their children in Australia rather than to live separately in Sri Lanka.”
Consideration
I reject the submission that the decision of the delegate was invalid for the reason stated above. Although the health assessment data dated 23 July 2002 was provided with reference to clause 4005 the decision of the delegate was expressly made in relation to public interest criterion 4007 as was subsequently the decision of the Tribunal and the doctor’s reference to the wrong criterion in the opinion of 23 July 2002 could not have made a difference to the Tribunal’s decision (Minister for Immigration and Multicultural & Indigenous Affairs vKodama [2003] FCA 510). Waiver of the health requirement was considered by both the delegate and the Tribunal, that power being applicable to public health criterion 4007 but not 4005.
Opinions of assessing doctors obtained by the Tribunal (and taking its account Regulation 2.25A) were assessments applying the same criteria whether stated as under public interest criterion 4005 or, as in the opinions dated 15 August 2002 and 25 November 2002 and in what are headed ‘deferred opinions’ dated 24 June 2003 and 17 November 2003 under criterion 4007. I am satisfied that the heading of those later documents should not override the substance of the documents which clearly represent the opinion of the doctors who have signed them. Accordingly, the application must fail on these grounds.
The applicant however submits that the Tribunal failed to address a relevant consideration as put by him to the Tribunal and that was the circumstances of his wife. The health waiver is essentially exercised by reference to the Procedures Advice Manual. That reference would require a consideration of the applicant wife’s circumstances as put by the applicant.
A decision maker does not err in failing to take into account a relevant consideration unless it was a consideration he or she was bound whether stated expressly or impliedly in the legislation to take into account (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24). The question for the Court is, has an error been made and if so could its absence have produced a different outcome?
The Tribunal did consider the applicant’s relationship with his children and grandchildren, his contribution to the Australian community, his length of time in Australia. It did not consider the fact that his wife had satisfied the health requirement nor other matters put before the Tribunal as to her circumstances. The applicant alleges the Tribunal failed to properly construe and apply item 4007(2)(b)(i) and (ii) in Schedule 4 in that it took an overly narrow approach to what constitutes compelling circumstances and humanitarian and compassionate factors.
The respondent submits that the claim of harm suffered by the applicant’s spouse if she were to return to Sri Lanka was not put as a claim. Further that there was no evidence that she would suffer any adverse consequences if she were to return to Sri Lanka. I reject that argument. The Tribunal’s statutorily mandated function is to examine the claims made by the applicant. The applicant clearly made a claim in relation to his wife’s circumstances. Whilst its reasons are not to be looked at “with an eye heavily attuned to error” nevertheless in looking to the Tribunal’s reasons this claim has not been expressly dealt with in the reasons. The circumstances of his wife, including the failure of her application should the husband’s application fail were not simply a piece of evidence in support of a more general claim but rather an element of the applicant’s claim. In its failure to deal with this claim the Tribunal has made a jurisdictional error of law in that it has failed to take account of a relevant consideration. In reaching this conclusion I have looked into the subject-matter, scope and purpose of the Act and borne in mind the following said by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986)162 CLR 39-42:
a)“What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken in account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors- and in this context I use this expression to refers to those factors which the decision-maker is bound to consider_ are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act…
…
where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.
b)Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision
c)The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned: Wednesbury Corporation [(1948) 1 KB at p.228].
The application succeeds and the matter will be remitted to the Tribunal for hearing according to law.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Associate: Anna French
Date:19 December 2005
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