Antoon v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 224
•5 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Antoon v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 224
File number(s): CAG 7 of 2021 Judgment of: JUDGE HUMPHREYS Date of judgment: 5 November 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal – Partner visa – whether the Tribunal failed to comply with s 359A of the Migration Act 1958 (Cth) – whether jurisdictional error is made out – jurisdictional error is made out – the application is upheld. Legislation: Migration Act 1958 (Cth), ss 242, 424, 477, 359
Migration Regulations 1994 (Cth), cl 309.225 of Schedule 2, PIC 4007(1)(a),(b),(c), reg 2.25A
Cases cited: DYI16 v Minister for Immigration, Migrant Services and Multicultural Affairs [2021] FCA 612
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17
Robinson v Minister for Immigrationand Multicultural and Indigenous Affairs (2005) 148 FCR 182
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
SZEWL v Minister for Immigration and Citizenship (2009) 174 FCR 498
SZMTJ v Minister for Immigration and Citizenship (No 2) [2009] FCA 486
SZNKO v Minister for Immigration and Citizenship [2010] FCA 297
SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91
SZTES v Minister for Immigration and Border Protection [2015] FCA 719
Division: Division 2 General Federal Law Number of paragraphs: 58 Date of last submission/s: 20 October 2021 Date of hearing: 20 October 2021 Place: Sydney Counsel for the Applicants: Mr Godwin Counsel for the Respondents: Ms Anderson ORDERS
CAG 7 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PAUL ANTOON
First Applicant
NADA JAWHAR
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
5 NOVEMBER 2021
THE COURT ORDERS THAT:
1.Grant leave for the extension of time for the filing of the Application.
2.The decision of the Tribunal, Immigration Assessment Authority or Minister be quashed.
3.A writ of Mandamus directed to the Tribunal, Immigration Assessment Authority or Minister, requiring them to determining the Applicant’s application according to law;
4.A Declaration that the recommendation of the independent Protection Assessment Reviewer was not made in accordance with law, by reason of the ground of this application;
5.An Injunction restraining the Minister, by himself or by his Department, officer, delegates or agents, from making the future decision or taking the other action the subject of the proceedings.
6.The First Respondent pay the Applicant’s costs, fixed in the amount of $8500.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
The first applicant (“the review applicant”) is an Australian citizen. The second applicant (“the visa applicant”) is his wife. The visa applicant is a Syrian citizen, currently residing in Lebanon. The review applicant, Mr Antoon, is the sponsor of his wife for a Partner visa. The applicants have a son born April 2019.
The review applicant applied for a Partner visa for the visa applicant on 17 January 2017. A delegate of the Minister (“the delegate”) refused to grant the visa applicant her visa as the delegate was not satisfied that she met the requirements cl 309.225 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) as the visa applicant did not meet the health criteria in Public Interest Criterion (“PIC”) 4007 of Schedule 4 to the Regulations.
Clauses 4007(1)(a) and (b) of the Regulations, require the visa applicant to be free from tuberculosis and free from any disease or condition that might result in the applicant being a threat to public health or a danger to the public in Australia. These are not relevant in the present case.
Clause 4007(1)(c) of the Regulations, requires the visa applicant to be free from a disease or condition which would be likely to require health care or community services which would inter alia result in significant cost to the Australian community or undue prejudice the access of an Australian citizen or permanent resident to health care or community services. The visa applicant suffers from multiple sclerosis. It was on this basis that the delegate refused the visa applicant a Partner visa.
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION
The review applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). In determining whether the person meets PIC 4007(1)(a) (b) or (c), reg 2.25A of the Regulations, requires the Tribunal to seek the opinion of a Medical Officer of the Commonwealth (“MOC”) in respect of the visa applicant. Where an opinion is sought, the Tribunal is required to take the opinion of the MOC as correct.
The opinion must identify the medical condition to which the public interest criterion has been applied, and the form or level of the condition suffered by the visa applicant, and the MOC must apply the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition: (see; Robinson v Minister for Immigrationand Multicultural and Indigenous Affairs (2005) 148 FCR 182).
An initial MOC stated that the visa applicant did not met the criteria in PIC 4007(1)(c) of the Regulations, and estimated the cost of treatment for the visa applicant in Australia, is in excess of $1 million.
A further MOC was obtained by the Tribunal after asking the review applicant if he wished for a further MOC opinion to be obtained. The review applicant said that he did.
The new MOC opinion is dated 30 November 2020. It was not available to the review or visa applicants prior to the Tribunal hearing held on 22 December 2020. However, its contents were discussed with them during the course of the hearing. That opinion identified the medical condition of the visa applicant as stable multiple sclerosis. The condition is likely to be permanent. The new MOC applied the statutory criteria of the hypothetical person with the same condition of the same level of severity of the visa applicant, and concluded that the hypothetical person would be likely to require health care and community services including medical and pharmaceuticals. The new MOC concluded that the provision of the services would be likely to result in significant cost to the Australian community, estimated at $187,500. This amount was significantly less than the first MOC opinion.
The MOC opinion concluded that the grant of the visa would not be likely to prejudice the access of an Australian citizen or permanent resident to healthcare or community services. The only issue was the cost to the Australian community of the provision of healthcare and/or community services. The new MOC concluded that the visa applicant did not satisfy the relevant criteria and the visa should not be granted.
Following the 22 December 2020 hearing, the Tribunal sent the review applicant a letter pursuant to s 424A of the Migration Act 1958 (Cth) (“the Act”). The letter sought certain information about the review applicant’s financial affairs and asked certain questions in relation to that. However, the letter also contained a copy of the updated MOC opinion. It is agreed that no specific information was provided in the letter to the applicant’s that the MOC opinion would be part of the reasons for the Tribunal to affirm the delegate’s decision. The review applicant responded with information about his financial affairs on 7 January 2021.The Tribunal handed down its decision on 11 January 2021.
In its decision, the Tribunal considered if the requirements of PIC 4007 (1)(c) 25A of the Regulations, should be waived. Given the single ground of judicial review below, it is not necessary to summarise the Tribunal decision further, except to note that the Tribunal was not satisfied that the requirements of PIC 4007 (1)(c) 25A of the Regulations, should be waived and affirmed the delegate’s decision.
GROUND OF JUDICIAL REVIEW
A single ground of judicial review is relied upon in an initiating application filed with the Court on 25 March 2021. It is as follows:
Ground One
The Tribunal failed to comply with s 359A of the Migration Act 1958.
Particulars
The Tribunal did not invite the applicant to comment on the report of the Commonwealth Medical Officer dated 30 November 2020.
It is common ground between the parties that the application for judicial review was filed 26 days outside the stipulated 35 day time limit specified by the Act. Accordingly, the first question to be answered is whether an extension of time should be granted pursuant to
s 477(2) of the Act. This provision provides that the Court may extend the time for the filing of the application if it is necessary in the interests of the administration of justice.
SHOULD TIME BE EXTENDED
The relevant principles that should be used by the Court in considering an extension of time application are conveniently set out in SZTES v Minister for Immigration and Border Protection [2015] FCA 719. They are as follows:
a) The extent of the delay;
b) The explanation for the delay
c) Any prejudice to the respondent occasioned by the delay; and
d) The merits of the proposed application.
If there is little or no merit in the proposed application there is no point in granting the extension: (see; MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [62]-[63]).
On behalf of the applicants, reliance is placed on the Affidavit of Mr Toufic Sarkis of 6 March 2021. Mr Sarkis is the authorised representative of the applicants who at the relevant time were in Lebanon. Mr Sarkis deposes that he attended to the filing of the application for review, including the drawing of a money order in the sum of $690, not being aware that the filing fee had increased to $3,300.00 on 1 January 2021. The application was returned to Mr Sarkis by the Court Registry on 19 February 2021, 4 days outside the 35 day time limit advising of the need for payment of the increased fee amount.
The legal representative for the first respondent submitted that the application was not subsequently filed until 23 March 2021, and thus 26 days after the time limit for the application to this Court expired. The legal representative for the first respondent submitted that the length of the delay is not significant but that any delay longer than the prescribed time is not insignificant.
The legal representative for the first respondent submitted that there was no documentary evidence that demonstrates that Mr Sarkis did attempt to file the application within time or explain why he did not file the application sooner than 33 days from the time he deposed that he was informed of the correct filing fee.
The legal representative for the first respondent submitted that there was no specific identifiable prejudice which would be suffered by the first respondent if the applicants were granted an extension of time. However, the absence of prejudice to the first respondent is insufficient in itself to justify an extension of time being granted: (see; SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [19]).
The legal representative for the first respondent submitted that the public interest in the finality of administrative decision-making in the timely and effective disposal of litigation is to be afforded significant weight against the relief sought by the applicant in this case.
Finally, the legal representative for the first respondent submitted that even of the reasonably impressionistic level, the grounds of review outlined in the application lack sufficient merit for an extension to be granted.
The Court has no reason to doubt the explanation given as to the delay in the filing of the application before the Court. The increase in the filing fee was significant and the Court has no doubt that it may have taken some time for the additional funds to be organised. The Court does not consider the delay to be excessive. The Court notes that there is no specific prejudice to the first respondent and that this matter is capable of being finalised without any further hearing. That is, there will be no necessity for the matter to be adjourned in order for there to be a full hearing on the merits.
In terms of the merit of the proposed application, the Court considers that it is appropriate to hear the matter in detail rather than to simply dismiss the matter without allowing the applicants the opportunity of putting their case in full. The Court is not satisfied at an impressionistic level that the appeal has no merits.
In these circumstances, the Court proposes to allow leave, pursuant to s 477(2) of the Act, for the filing of the Initiating Application out of time, as the Court is satisfied that it is in the interests of the administration of justice to do so.
THE APPLICANT’S SUBMISSIONS
Counsel for the applicants submitted that on 5 November 2020 the Tribunal asked the applicants whether they wished for the Tribunal to obtain an updated certificate from a MOC. The applicants said that they wanted an updated opinion. Because the MOC confirmation form was not completed and payment were not made by 23 November 2020, the Tribunal scheduled hearing of the application for 15 December 2020 could not go ahead. In fact, the form had been filled in and payment was made on about 19 November 2020, but the email from the authorised recipient to the Tribunal attaching the documents had not been successfully transmitted.
A hearing by the Tribunal was held on 22 December 2020. The review applicant gave evidence which included evidence as to his income and tax paid. The Tribunal determined that this was relevant as to the review applicant’s capacity to mitigate the cost to the community of medical treatment and pharmaceuticals to his wife through the payment of income tax.
However, the new MOC opinion, dated 30 November 2020, was not provided to the applicants until 24 December 2020. The letter enclosing the MOC opinion also noted evidence given by the review applicant as to his earnings from the two properties owned by the review applicant in Redfern and a granny flat in the backyard of his home in Auburn. The Tribunal noted that the rental income from these properties was not declared in the first applicant’s tax return for the financial year 2016-2017.
The Tribunal’s letter stated that the correct declaration of income and therefore the assessment of tax due was relevant to the analysis of the capacity of the applicants to mitigate costs for the provision of treatment by the payment of taxes. A period until 8 January 21 was provided to the applicants to provide a response as to the apparent inconsistency in evidence relating to income and ability to mitigate costs and the previous declared income and payment of taxes.
The new MOC opinion indicated that the estimated cost of medical services for the visa applicant was $17,000 and pharmaceutical services of $170,500 giving a total of $187,500. This amount was more than $1 million less than the first CMO had indicated.
Counsel for the applicants submitted that the Tribunal’s letter 24 December 20 was styled as a request for information, not an invitation to comment on information. It was submitted that the Tribunal’s letter made no attempt to ensure, as far as reasonably practicable, that the applicant understood why the MOC assessment was relevant to the review, and the consequences of it being relied upon in affirming the decision under review. It was submitted that it did not invite the applicant to comment on or respond to it, and contained nothing in its terms which could be construed as an invitation to comment on or respond to the MOC assessment. It was submitted the requirements of s 359A(1)(b) and s 359A(1)(c) of the Act were not met.
Counsel for the applicants submitted that the requirements of s 359A of the Act are mandatory: (see; SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 at [77]). Further, in SZNKO v Minister for Immigration and Citizenship [2010] FCA 297, Flick J observed at [26] that “such limited procedural protections as remain within Part 7 Division 4 of the Migration Act are to be given full force”.
Counsel for the applicants submitted that the applicants needed to be put in a position that they could understand why the information was relevant to the review. It was finally submitted that materiality plays no part in this matter as compliance with s 424A of the Act is a necessary condition for the validity of the review: (see; DYI16 v Minister for Immigration, Migrant Services and Multicultural Affairs [2021] FCA 612 at [67]).
THE FIRST RESPONDENT’S SUBMISSIONS
The legal representative for the first respondent submitted that the Tribunal was not obliged to give the applicant’s particulars of the 30 November MOC opinion in circumstances where:
a) The 30 November 2020 MOC opinion was information that the applicants had caused to be given to the Tribunal for the purpose of their application for review;
b) notwithstanding that the Tribunal did not, as the delegate had,52 invite the applicants prior to the hearing to comment on the 30 November 2020 MOC Opinion before it or request further information to support of waiving PIC 4007, it had been open to the applicants to decline the offer made by the Tribunal to obtain a further MOC Opinion to provide a current assessment and for any new information to be considered 53 and the applicants were on notice of the gravamen or substance of the issues54 for the Tribunal's determination (being whether the visa applicant satisfied PIC 4007) and, following the hearing, the nature of the MOC opinion as follows:
i.from the time they received the delegate’s reasons for the decision she made on 2 May 2018 to refuse the Visa applicant the visa;
ii.as a consequence of the Tribunal having discussed the 30 November 2020 MOC Opinion with them at the Tribunal hearing; and
iii.as a consequence of the Tribunal having provided a copy of the 30 November 2020 MOC Opinion to them on 24 December 2021; and
c) the potential relevance of the information contained in the 30 November 2020 MOC Opinion was 'readily apparent' and the use that the Tribunal could make of the 30 November 2020 MOC Opinion was therefore self-evident: cf Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138 at [41].
d) the matters prescribed by cl 4007(1)(c) comprise information that was not specifically about the applicant and was just about a class of persons of which the applicant was a member,57 because those matters were to be assessed objectively as to whether a hypothetical person with the same disease or condition as the Applicant would be likely to require health care or community services which would likely result in a significant cost to the Australian community.
The legal representative for the first respondent that the Tribunal discharged any obligation to afford procedural fairness in respect of the 30 November 2020 MOC opinion because it is evident that the Tribunal only caused the opinion to be obtained at the applicants’ request. The applicants were invited to and attended a hearing. At the hearing, the Tribunal discussed the 30 November 2020 MOC opinion with the applicants at the hearing on 22 December 2020. The Tribunal’s reasons otherwise support a finding it raised all of the “issues under review” with the applicants of the Tribunal hearing. The Tribunal gave a copy of the 30 November 2020 MOC opinion to the applicants on 24 December 2021 and they had an opportunity to provide further information to the Tribunal. Further information was provided in response to the opportunity to provide further information, but information was not provided in relation to the 30 November 2020 MOC opinion.
The legal representative for the first respondent submitted that the applicants were given fair notice in writing of the issues for the determination and had an opportunity to comment or respond to the information relevant to these issues.
In relation to the issue of materiality, the legal representative for the first respondent submitted that the applicants had not demonstrated the asserted areas material because the giving of the 30 November 2020 MOC opinion, pursuant to s 359A of the Act, could not have resulted in the making of a different decision.
CONSIDERATION
Leave for an extension of time having been granted, this matter turns on what is a relatively short legal point. Section 359A of the Act reads as follows:
(1)Subject to subsections (2) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2)The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies--by one of the methods specified in section 379A; or
(b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(3)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.
(4)This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.
(5)A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection s 362B(1F).
The applicants contend that there was a breach of s 359A of the Act as the letter of 23 December 2020 did not specifically invite them to comment on the updated MOC opinion.
There can be no doubt that the applicants were on notice that a live issue in the determination of the matter was the MOC opinion as it related to the cost of the Australian community of pharmaceuticals and medical treatment, should the visa applicant be granted her visa. The first MOC opinion estimated the costs as $1,238,450.00.
The Tribunal offered the applicants the opportunity of obtaining updated MOC opinion which they accepted. The new MOC opinion was available at the hearing of 22 December but was not in the possession of the applicants. However, it was provided to them with the letter of 23 December, which additionally asked for information as to apparent discrepancies in the review applicant’s tax returns.
The new MOC opinion was different to the first MOC opinion in that that the grant of the visa would not prejudice the access of an Australian citizen or permanent resident to health care. The issue of the cost to the Australian community of that health care remained, notwithstanding that there was a significant reduction in the estimated cost of that care to $187,000. The opinion of the second MOC was that the visa applicant still did not meet the requirements of PIC 4007(1)(c) of the Regulations. Except for the reduction in cost, which was favourable to the applicants, there was no new information in the updated MOC opinion. The live issue for the Tribunal was and remained whether the requirements of PIC 4007(1)(c) of the Regulations, should be waived.
The legal representative for the first respondent argues that the new MOC opinion falls under the exemption contained in s 359A(4)(b) of the Act, being information that the applicant gave the Tribunal for the purposes of the application. The Court does not accept that assertion. The updated MOC opinion was obtained by the Tribunal. The Tribunal may have asked the applicants if they wanted an updated opinion and when they indicated they did, however it was the Tribunal that obtained it. Further, the review applicant had no power over what the MOC would say in the new opinion: (cf; SZEWL v Minister for Immigration and Citizenship (2009) 174 FCR 498 at [45] per Rares J).
During the course of the hearing the new MOC opinion was discussed extensively with the applicants. At page 5 of the hearing transcript, which was in evidence before the Court, the Tribunal confirmed that the applicant’s had not received the second MOC opinion.
The Tribunal member then stated:
It reaches the same conclusion that the visa applicant has been assessed against PIC 4007 and doesn’t meet for the same reason that a person with the same condition that is stable multiple sclerosis, a person with the same condition at the same severity, a hypothetical person in Australia, would be likely to require long term specialist health services including therapy and medical reviews, pharmaceutical and medical services in essence but the and the reason that you don’t meet the public health criterion is because provision of those health care and community services would be likely to result in a significant cost to the Australian community in the areas of health care… the big difference is that the total estimated cost has been reduced to $187,500.
Reference was made to the previous MOC opinion where it was noted that the estimated cost for health care of the visa applicant was $1,200,000.
At page 7 of the transcript, the Tribunal discusses with the applicants and explains there are two components of PIC4007 of the Regulations, requirements, the first is whether the MOC was valid. The Tribunal member states that his view is that the MOC opinion is valid. The second criteria, which could be waived if there are compelling reasons, was whether or not the cost of medical treatment to the Australian community, if the visa was granted, was “undue”. The Member went on to explain that a relevant consideration was the capacity the applicants to mitigate some of the cost. The following exchange took place:
MemberSo I think for this review if you are comfortable if we proceed on the basis that you don’t meet the requirement and we focus on the waiver, are you comfortable if we proceed on that basis?
Review Applicant Yes.
The following exchange then occurred at page 9 of the transcript:
Member … Now in the MOC opinion they only identify the second one undue cost to the Australian community ok and that’s it so we are only looking at whether the grant of the visa would be unlikely to result in undue cost to the Australian community. It is not a difficult concept ok so all we need to discuss in this hearing is whether there are the ability to mitigate those costs so we have to look at your financial situation for the two of you,
Review Applicant Yes
The balance of the hearing then discussed the review applicant’s financial situation including the overall family situation in Lebanon where both applicants were residing. The Tribunal member was concerned as to the discrepancies in the review applicant’s tax return as compared to the information that he had provided to the Tribunal. The transcript, from page 27 onwards, clearly indicates that the operative question that remained unanswered was the financial situation of the review applicant and the need for additional information. The following appears at page 30 and 31 of the transcript and is a summary of the way forward in the mind of the Tribunal member:
Member … Yes I understand that. It is like I said in the beginning though the Tribunal can’t look at the medical opinion of the Medical Officer of the Commonwealth ok as long as that opinion is valid then all I can do is look at the undue cost to the Australian community and it is there for a reason that the members of the public have a reason to say look we can’t just pay the medical costs of people who aren’t Australian citizens. So we just have to look at whether there are whether it is an undue cost and we look at whether there are compelling reasons to waive it and we discussed what those compelling reasons are. There are reasons that I will be considering very seriously but we also need to look at this issue in relation to the tax so that is why I will give you that time until the 8th (January 2021) and see what information you can provide.
Review Applicant: ok.
The obligation in s 424AA of the Act is not free standing, but provides a mechanism by which the Tribunal is relieved of the obligation to comply with s 424A by virtue of s 424A(2A)of the Act. A fair reading of the transcript indicates, as set out above, that the Tribunal did outline to the applicants the information contained within the second MOC report and what the consequences of the Tribunal relying upon that information were. While the Tribunal member asked if the applicants were comfortable with proceeding on the basis that the MOC certificate was valid, he did not clearly invite the applicant’s to comment on the MOC opinion
[s 424AA(b)(ii) of the Act] or advise them that they could seek additional time to comment on or respond to the MOC opinion [s 424AA(b)(iii) of the Act]. Therefore, the Court is not satisfied that s 424AA of the Act was complied with, removing the requirement to comply with s 424A of the Act.
It is not in dispute that the MOC opinion was provided to the applicants via the 24 December 2021 letter. The issue is whether there was compliance with the strict procedural requirements of s 424A of the Act.
Section 424A of the Act first requires clear particulars of any information that would be the reason or part of the reason for the affirming the decision: (see; s 424A(1)(a) of the Act). The applicant is required to be informed why the material is relevant to the review and the consequences of it being relied upon: (see; s 424A(1)(b) of the Act), or was invited to comment or respond to it: (see; s 424A(1)(c) of the Act). The Court is not satisfied that these requirements were met. As a result, jurisdictional error occurred.
The Court is further not satisfied that the exceptions contained with s 424A(3) of the Act were met. The legal representative for the first respondent suggests that the information was not personal to the applicant and rather about a class of persons of which the visa applicant is a member: (see; s 242A(3)(a) of the Act). The Court does not accept this submission. The information was personal to the visa applicant as being a person with stable multiple sclerosis and of a particular age with then, an estimate of the cost of treatment, not general information such as that found in country information.
The Court has already found that the information was not provided by the applicant so that the exceptions under s 424A(3)(b) or (ba) of the Act are not met. Further, it is not suggested by either of the parties that the information was non-disclosable information: (see; s 424A(3)(c) of the Act).
The final issue relates to the materiality of the error. The applicants were well aware of the second MOC report, it having been discussed with them during the hearing. The applicants appeared to agree with the Tribunal member that the issue for determination related to the financial information provided by the review applicant and whether there were compelling circumstances to waive the PIC. The applicants chose not to make any response to the MOC opinion after it was provided to them. Given that the Tribunal had found the opinion valid, the Tribunal was bound to accept the information therein. Nothing the applicants could have said would have affected the consideration of the MOC opinion.
Counsel for the applicant relied upon SZMTJ v Minister for Immigration and Citizenship (No 2) [2009] FCA 486 where Flick J stated at [44] that s 424A(1)(b) of the Act imposes ‘Strict requirements’ that must be met. In DYI16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 612 Wheelahan J made the following comments at [67]:
In SAAP [SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24] it was held that compliance by the Tribunal with s 424A(1) is a condition of the valid performance of the duty to review, with the consequence that non-compliance renders a decision to affirm the decision under review invalid in the sense that the decision is ineffective in law to achieve that result… non-compliance with s 424A(1) is necessarily material, because the provision prescribes the content of an imperative obligation to accord procedural fairness, compliance with which is a necessary condition of the validity of the review.
In these circumstances, notwithstanding the High Court’s decision in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 regarding the need to show materiality prior to finding jurisdictional error, the Court is bound to find jurisdictional error regardless of the fact that the error in this matter, in the Court’s view, would have made no difference to the overall outcome.
CONCLUSION
Accordingly, the application is upheld and the Court grants the orders sought in the Initiating Application.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Deputy Associate:
Dated: 5 November 2021
1
12
2