CVM17 v Minister for Immigration - [2019] FCCA 617

FEDERAL CIRCUIT COURT OF AUSTRALIA

CVM17 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 617

Catchwords:
MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant applicant a Partner (Provisional) (Class UF) visa (Partner visa) – delegate refused to grant Partner visa on the basis of an opinion of a medical officer of the Commonwealth (MOC Opinion) that the requirements of Public Interest Criterion 4007(1)(c) have not been met – whether Tribunal considered whether because of the period that had elapsed between the time the MOC Opinion was issued and the date on which Tribunal made its decision the MOC Opinion was not current or not reliable – whether it was reasonably open to the Tribunal to consider the MOC Opinion was current and reliable – whether assuming it was not open to the Tribunal to consider the MOC Opinion was current and reliable the Tribunal had the power to seek a further opinion from a MOC and if it had such power whether the Tribunal acted unreasonably by not seeking a further opinion from the MOC – assuming the Tribunal did not have power to seek a further opinion from a MOC, or it did not act unreasonably in not seeking a further opinion from the MOC – whether the Tribunal’s relying on the MOC Opinion was material to the decision it made – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), regs.2.25A, 5.41(1)

Migration Regulations 1994 (Cth), Schedule 4, item 4007

Cases cited:

Applicant Y v Minister for Immigration andCitizenship [2008] FCA 367

Minister for Immigration and Multicultural Affairs v Seligman [1999] FCA 117
Wei v Minister for Immigration and Border Protection [2015] HCA 51

Applicant:

CVM17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1790 of 2017

Judgment of:

Judge Manousaridis

Hearing date:

2 March 2018

Date of Last Submission:

2 March 2018

Delivered at:

Sydney

Delivered on:

15 March 2019

REPRESENTATION

Counsel for the Applicant:

Ms S Cirillo

Solicitors for the Applicant:

HIV/AIDS Legal Centre

Counsel for the First Respondent:

Mr T Reilly

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1790 of 2017

CVM17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant is a national of Ukraine. On 1 December 2014 she married an Australian citizen in Bangkok and, on 28 December 2014, she lodged an application for a Partner (Provisional) (Class UF) visa (Partner visa).
To have been entitled to a Partner visa the applicant was required to satisfy the requirements of item 4007 of Schedule 4 (PIC 4007) to the Migration Regulations 1994 (Cth) (Regulations).[1] Regulation 2.25A of the Regulations prescribes the manner in which the first respondent (Minister) is to determine…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FCCA 617
Decision Date: 15 March 2019

CaseChat Overview and Summary

The applicant sought judicial review of a decision by the Administrative Appeals Tribunal (Tribunal) that affirmed a delegate's refusal to grant a Partner (Provisional) (Class UF) visa. The refusal was based on a Medical Officer of the Commonwealth (MOC) opinion that the applicant did not meet the requirements of Public Interest Criterion 4007(1)(c). The applicant contended that the Tribunal erred by considering the MOC opinion to be current and reliable, despite the significant time elapsed between its issuance and the Tribunal's decision.

The central legal issues before the court were whether the Tribunal had adequately considered the currency and reliability of the MOC opinion, whether it was open to the Tribunal to find the opinion current and reliable, and if not, whether the Tribunal had the power to seek a further opinion and acted unreasonably by not doing so. The court also considered whether, assuming the Tribunal did not have such power or did not act unreasonably, its reliance on the MOC opinion was material to its decision.

The court referred to the Full Federal Court's decision in *Minister for Immigration and Multicultural Affairs v Seligman*, which established that a MOC opinion must address the applicant's satisfaction of criteria at the time of the Minister's decision. However, the court noted that in the context of a Tribunal review, a literal interpretation of this qualification is not always practical. Citing *Applicant Y*, the court indicated that a MOC opinion should be current and reliable at the date of the hearing before the Tribunal, and the Tribunal is not necessarily required to obtain a fresh opinion dated precisely when it hands down its decision. The court's reasoning focused on the practical application of the *Seligman* principles to Tribunal reviews, acknowledging the potential for delay between a hearing and a decision.

The application was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Full Federal Court considered the circumstances in which the Minister is to take the opinion of a MOC to be correct in Minister for Immigration and Multicultural Affairs v Seligman. The Full Federal Court said (emphasis added):[4][4] [1999] FCA 117, at [48], [49] (French, North, and Merkel JJ)The seeking of an opinion by the Minister takes place “in determining whether an applicant satisfies the criteria for the grant of a visa”. This recognises the conceptual distinction between ascertaining whether criteria are satisfied and deciding to grant or refuse the visa. It is the first limb of that two phase process upon which the requirement of reg 2.25A operates. The defining and limiting attributes of what is sought from the Medical Officer are: 1. What is provided must be an opinion.2. The opinion must be that of the Medical Officer of the Commonwealth who provides it.3. The subject of the opinion must be “whether a person meets the requirements of the applicable paragraph of Schedule 4”.The Minister is required by subreg 2.25A(3) to take the opinion to be “correct”. That is subject to three qualifications:1. The opinion must be the opinion of the Medical Officer “on a matter referred to in subreg (1) or (2)”. The matter referred to in subreg 2.25A(1) is whether a person meets the requirements of the relevant paragraph of Schedule 4.2. The Minister is to take the opinion as correct for the purposes of deciding whether a person meets a requirement or satisfies a criterion.3. The opinion must address satisfaction of the requirements at the time of the Minister’s decision. Relevant to the application before me is the third of the qualifications identified by the Full Federal Court. By requiring a MOC opinion to “address satisfaction at the time of the Minister’s decision”, the third qualification suggests the MOC opinion must be based on a state of affairs that exists at a time after the opinion is given, namely, when the Minister decides to grant or not to grant the visa. The third qualification further suggests that where the Minister refuses to grant the visa and the applicant applies for review of the decision, a MOC opinion must “address satisfaction at the time” the MRT decides to affirm or not affirm the decision of a delegate not to grant a visa. That, in turn, suggests that a MOC opinion must be based on a state of affairs that exists at the time the Tribunal might make a decision. That, at any rate, is how Tamberlin J in Applicant Y interpreted the third qualification identified in Seligman. That is apparent from the following passage from his Honour’s reasons for judgment:[5]In practical terms, the requirement in Seligman . . . that the MOC’s opinion must address satisfaction of relevant requirements as at the time of the Minister’s decision cannot be read literally. For example, where the Tribunal is reviewing the Minister’s decision, it cannot be reasonably suggested that the Tribunal should be required to have an MOC’s opinion as at the same date as its decision. Generally, the Tribunal will reserve its decision at the end of the hearing and it should be entitled to rely on an opinion which is current and reliable at the date of the hearing, and should not be required to seek or consider a fresh opinion bearing the same date as that on which it eventually hands down its decision.[5] [2008] FCA 367, at [19]-[21]

Ratio Decidendi

Legal Principle Established

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