Cohen v Minister for Immigration & Multicultural Affairs

[2000] FCA 1875

FEDERAL COURT OF AUSTRALIA

Cohen v Minister for Immigration & Multicultural Affairs [2000] FCA 1875

MIGRATION - application for review of decision of Migration Review Tribunal - applicant a citizen of the United States of America - applicant suffers from chronic fatigue syndrome and other conditions - applicant sought advice and treatment from doctors and participated in a research study that considered her illness whilst in Australia - applicant applied for a Medical Treatment (Visitor) (Class UB) (Subclass 685-Medical Treatment) (Long Stay) visa - decision of a delegate of the respondent to refuse the visa upheld by Tribunal - consideration of whether Tribunal erred in its interpretation of ‘medical treatment’ within the context of the Migration Regulations by interpreting it to mean specialist medical treatment - whether Tribunal erred in finding that the applicant had not been seeking to obtain medical treatment in Australia and that no arrangements had been concluded to carry out such treatment.

Migration Act 1958 (Cth) ss 476(1)(b), 476(1)(e), 476(1)(g), 499

Migration Regulations cl 685.211, 685.212, 685.212(2), 685.213-685.216, 685.221

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 referred to
Thiele v The Commonwealth of Australia (1990) 22 FCR 342 distinguished
Bresmac Pty Ltd v Starr (1992) 29 NSWLR 318 distinguished
Reid v Secretary of State for Scotland [1999] 2 AC 512 distinguished
New South Wales Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509 referred to

JOANNE THERESA COHEN v MINISTER FOR IMMIGRATION
AND MULTICULTURAL AFFAIRS

S 65 OF 2000

MANSFIELD J
21 DECEMBER 2000
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 65 OF 2000

BETWEEN:	JOANNE THERESA COHEN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	21 DECEMBER 2000
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.Application for judicial review granted.

2.Application for review of the decision to refuse to grant to the applicant a Medical Treatment (Visitor) (Class UB) (Subclass 685-Medical Treatment) (Long Stay) visa be remitted to the Migration Review Tribunal for reconsideration according to law.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 65 OF 2000

BETWEEN:	JOANNE THERESA COHEN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MANSFIELD J
DATE:	21 DECEMBER 2000
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Migration Review Tribunal (“the Tribunal”) given on 18 May 2000.  The Tribunal affirmed a decision of a delegate of the respondent refusing to grant to the applicant a Medical Treatment (Visitor) (Class UB) (Subclass 685-Medical Treatment) (Long Stay) visa (“the visa”) of 2 June 1998.  That decision of a delegate of the respondent was affirmed also by internal review on 17 November 1998.

2. The applicant is a national of the United States of America.  She was born on 31 January 1964.  She last entered Australia on 12 May 1997 holding a visitor visa.  The visa was valid until 12 August 1997.  She applied for, and was granted, additional visitor visas on 14 July 1997 and 9 January 1998.  The latter visa expired on 12 May 1998.

3. On 27 April 1998 the applicant applied for the visa.  The primary criteria for the grant of the visa under the Migration Regulations (“the Regulations”) include criteria to be satisfied at the time of the application, and criteria to be satisfied at the time of the decision.  Relevantly for present purposes Sch 2 to the Regulations provides:

“685.21          Criteria to be satisfied at time of application.

685.211The applicant seeks to visit Australia, or remain in Australia as a visitor, for the purposes of medical treatment or for related purposes.

685.212(1)      The applicant meets the requirements of subclause (2), (3), (4), (5), (6) or (7).

(2)An applicant meets the requirements of this subclause if the applicant:

(a)seeks to obtain medical treatment (including consultation), other than treatment for the purposes of surrogate motherhood, in Australia; and

(b)satisfies the Minister that arrangements have been concluded to carry out the treatment; and

…”

Subclauses (3)-(7) of clause 685.212 are not relevant as the applicant, only for the purposes of this application to the Court, accepts that she does not meet the requirements of those subclauses.  There are other primary criteria to be satisfied at the time of the application specified in clauses 685.213-685.216 of Sch 2 of the Regulations.  The Tribunal did not need to address them, as it concluded that the applicant did not satisfy any of the subclauses of clause 685.212, including subclause 685.212(2).

1. Clause 685.22 of Sch 2 to the Regulations specifies criteria to be satisfied at the time of the decision.  Regulation 685.221(1) requires the applicant to meet the requirements of subclause (2), (3), (4), (5) or (6).  The Tribunal did not address whether the requirements of any one of those subclauses was met.  It determined that the requirement in subclause 685.221(4) was not satisfied.  The applicant, for the purposes of this application to the Court, does not seek to upset that determination.  She claims that she falls within clause 685.221(2)(a), namely that she continues to satisfy the criteria in clause 685.211 to 685.214.  In effect, she claims that at the time of the hearing she continued to satisfy the requirements of subclause 685.212(2).  The Tribunal did not specifically address that claim, as its decision in relation to the requirements of clause 685.212(2) was adverse to the applicant.

2. The grounds of the application invoke s 476(1)(e) and s 476(1)(g) of the Migration Act 1958 (Cth) (“the Act”). The error of law is said to involve an incorrect interpretation of the applicable law and an incorrect application of the law to the facts. In particular, it is contended that the Tribunal erred in finding that the applicant failed to satisfy the Tribunal that she met the requirements of subclause 685.212(2) because it:

   (a)erred in interpreting “medial treatment” as meaning specialist medical treatment, and

   (b)erred in finding that the applicant has not been seeking to obtain medical treatment in Australia and that no arrangements have been concluded to carry out such treatment.

3. The error alleged in relation to s 476(1)(g), namely that there was no evidence or other material to justify the making of the decision, is based upon that provision as explained and limited by s 476(4)(b), namely that the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist. The particular fact upon which the decision is said to have been based, and which did not exist, is the finding of the Tribunal that there was no evidence or other material from which the Tribunal could reasonably be satisfied that:

   “… the applicant has not been seeking to obtain medical treatment in Australia and that no arrangements have been concluded to carry out such treatment.”

4. The Tribunal’s reasons for its decision are quite short. It first referred to relevant provisions of the Act and of the Regulations. It also referred to “relevant policy” contained in Policy Advice Manual issued by the Minister pursuant to s 499 of the Act, in particular to PAM3 Generic Guidelines H (visitor visa) and PAM3 Schedule 2 - Temporary Visa (Visitor) Medical Treatment (Long Stay) Visa 685. It did not refer to any particular feature of those policy guidelines, so it is unclear what regard it had to them. Counsel for the parties on this application agreed that they were not relevant to the determination of this application, and the Policy Advice Manual was not before the Court.

5. The Tribunal then referred to the evidence, again only briefly.  It recorded the fact that it had before it documents and other material contained in the department files and the Tribunal’s files, including numerous medical reports, and also that it had the benefit of evidence given at a hearing on 29 March 2000 from the applicant and from another person.  The only medical reports it expressly referred to were those of Dr A Gormly, Senior Medical Adviser with Health Services Australia, in a report of 20 May 1998 concerning the applicant’s medical fitness to travel (a matter relevant to the criterion specified in clause 685.221(4)(b) of Sch 2 to the Regulations) and of Associate Professor G Scroop.  It noted the applicant’s claims that there were a variety of medical opinions concerning her condition, that she should be granted a “stay time period of two years”, that the support she receives in Australia and its climate is beneficial to her health, and that her medical conditions prevent her from travelling on international flights due to the effect air travel has on her symptoms.

6. The Tribunal’s findings are also quite short.  After dealing with criteria not presently relevant, the Tribunal noted that the applicant claimed that she is currently part of a research study group into the mechanisms of chronic fatigue syndrome.  That, it said, did “not include obtaining specialist treatment for her condition”.  It then referred to medical reports from Professor Scroop confirming her participation in the research program, and concerning the applicant’s ability to travel by air, and of the views of Dr Gormly on that topic.

7. The reasons, relevant to the present application, can conveniently be set out in full:

   “The Tribunal has already made reference to the many medical reports contained in the files relating to this review.  Given the time that has elapsed since the refusal of the visa application in May 1998 it is noted that several of the doctors who wrote reports on the Applicant’s condition in 1998 suggest that the Applicant should be able to travel by air or sea in the near future.  Their opinions on the Applicant’s capability to travel range from immediately to 6 months to 2 years.  There is little evidence in the letters that the Applicant was receiving or is receiving specialist medical treatment or intervention for her condition.  Rather the Applicant’s symptoms appear irregularly.  As such they are treated as they occur, by a general practitioner as opposed to requiring a regime of treatment from a medical specialist.  At the hearing the Applicant told the Tribunal that most of her medical treatment is for symptoms associated with coughs and colds, tiredness and being exhausted.  The main treatment appears to be rest, analgesics and physiotherapy none of which are specialist treatments that are not readily available in most countries of the world, including the United State of America where the Applicant normally resides.

   The Tribunal is satisfied that the Applicant has not been seeking to obtain medical treatment in Australia and that no arrangements have been concluded to carry out such treatment.  For this and the above reasons the Applicant therefore fails to satisfy the Tribunal that she meets clause (2) of regulation 685.212.

8. The latter paragraph of those reasons, set out above is, taken on its face, plainly wrong.  There was clear evidence before the Tribunal that the applicant had been seeking to obtain medical treatment in Australia, both at the time of the application for the visa and at the time of the hearing.  She had been seeing a general practitioner, Dr Haq, intermittently since May 1997 in relation to chronic fatigue syndrome and central vestibular dysfunction.  Indeed, in the preceding paragraph, the Tribunal referred to the applicant’s previous medical treatment.  The latter paragraph of the Tribunal’s reasons must be seen in context.  It represents a paraphrase of clause 685.212(2)(a) and (b) of Sch 2 to the Regulations, and should be read in that light:  cp. Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Consequently, I accept the contention of counsel for the respondent that the reference to “medical treatment” must be taken as a reference to “a regime of treatment from a medical specialist”, the expression used in the preceding paragraph. I do not take it on its face as demonstrating error on the part of the Tribunal in failing to apprehend that the applicant has not been seeking any medical treatment whilst she has been in Australia.

9. However, consistently with giving the Tribunal’s use of “medical treatment” in that passage the meaning which the respondent’s counsel contended for, in my judgment, the Tribunal has regarded the expression “medical treatment” in clause 685.212(2)(a) as meaning a regime of treatment by a medical specialist in the balance of its reasons.  The clear emphasis in the Tribunal’s reasons is upon whether the applicant was receiving or is seeking specialist medical treatment.  That state of affairs is contrasted with symptoms which “appear irregularly” and are treated by a general practitioner.

10. The applicant contends that the Tribunal was in error in so doing.

11. There is no definition in the Act or in the Regulations of the expression “medical treatment”. So far as I am aware, cases in which the meaning of that expression has been addressed are in the context of consideration of a statutory definition of the expression “medical treatment” in other legislation: see eg. Thiele v The Commonwealth of Australia (1990) 22 FCR 342; Bresmac Pty Ltd v Starr (1992) 29 NSWLR 318; Reid v Secretary of State for Scotland [1999] 2 AC 512. I do not find those cases as being of any real assistance in discerning the intended legislative scope of the expression in subclause 685.212(2)(a). The dictionary definition of “medical” is “of or pertaining to the science or practice of medicine” and of “medicine” relevantly as “the art or science of restoring or preserving health or due physical condition …” (The Macquarie Concise Dictionary, 2ed, 1988, p 601). “Treatment” is relevantly defined as “management in the application of medicines, surgery etc” (ibid, at 1077). The inclusion of consultation in subclause 685.212(2)(a), as part of medical treatment, appears to recognise that the provision of advice of counselling by a medical practitioner is now also a commonplace of medical treatment. The medical treatment need not involve surgery or even the prescription of medication. There is also, in my view, no special reason to ascribe to the words “medical treatment” a meaning other than their ordinary everyday meaning: cp. Kitto J in New South Wales Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509 at 514. Counsel for the respondent did not submit that there were indications in the Act or in the Regulations which warranted a construction that the expression medical treatment should be given the more refined and confined meaning which I have found that the Tribunal attributed to it. There are, in clauses 685.1-685.7 of Sch 2 to the Regulations, indications that the visa should not be sought for some short term or passing illness: the description of the visa, the fact that it applies not just to persons who wish to remain in Australia for medical treatment but also to persons who wish to visit Australia for such treatment (clause 685.211), the need to satisfy the Minister that arrangements have been concluded to carry out the treatment (clause 685.212(2)(b)), the fact that for visa applicants outside Australia the period of the proposed treatment should involve a stay in excess of three months, (clause 685.215), and the fact that the Minister must fix the period for which the visa is granted or the date upon which the visa will expire (clause 685.5). However, I do not think that those considerations lead to the construction of the expression “medical treatment” which the Tribunal adopted.

12. Consequently, in my judgment, the Tribunal has erred in its interpretation of the expression “medical treatment” in clause 685.212(2)(a) of Sch 2 to the Regulations by importing into that concept the requirement that there be a regime of treatment from a medical specialist.

13. The respondent contended that, even if such error were established, the application for judicial review of the Tribunal’s decision should be unsuccessful because, on any view of the material before the Tribunal, it was doomed to failure.  It was put that, taken at its highest, the Tribunal could not conclude that the applicant seeks to obtain medical treatment in Australia, or that arrangements have been concluded for the carrying out of that treatment.

14. The Tribunal described the applicant’s symptoms as ones which “appear irregularly” and are treated by a general practitioner as they occur.  Counsel for the respondent acknowledged that that description of the material before the Tribunal was not entirely accurate.  The evidence shows, or is capable of showing, that following a motor vehicle accident in 1984, the applicant suffers from chronic fatigue syndrome and central vestibular dysfunction (and other conditions).  It also shows, or is capable of showing, that the applicant has ongoing symptoms of varying intensity associated with those conditions.  Her symptoms do not simply “appear irregularly” but persist and worsen periodically and are sufficient to require further treatment.  It is also clear that her general practitioner, Dr Haq, has been treating her for those symptoms since May 1997.  I do not consider that, as the respondent contends, it is clear beyond doubt that the application for the visa must fail.  Between the clear extremes of a specific medical regime of treatment arranged to be undertaken by a medical specialist, and of a short term minor ailment which has been treated and resolved, there is scope for a longer term illness which requires medical treatment by a general practitioner and in respect of which arrangements may have been concluded for the carrying out of that treatment.  The determination of eligibility for the visa under clause 685.212(2) of Sch 2 to the Regulations is to be made having regard to all the circumstances, and may involve fine matters of fact and degree.  I am not persuaded that the applicant should be deprived of the opportunity of having her application for the visa determined according to law because it would be futile to do so.

15. In my judgment, the application should be granted and the application should be remitted to the Tribunal for reconsideration in accordance with these reasons.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:
Dated:               21 December 2000

Counsel for the Applicant:	Mr A Collett
Solicitors for the Applicant:	Knox & Hargrave
Counsel for the Respondent:	Mr M Roder
Solicitors for the Respondent:	Norman Waterhouse
Date of Hearing:	4 December 2000
Date of Judgment:	21 December 2000