Dang v Administrative Appeals Tribunal

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FEDERAL COURT OF AUSTRALIA

Dang v Administrative Appeals Tribunal [2019] FCAFC 220

Appeal from: Dang v Administrative Appeals Tribunal [2019] FCCA 586
File number: WAD 145 of 2019
Judges: KERR, COLVIN AND JACKSON JJ
Date of judgment: 11 December 2019
Catchwords: MIGRATION - appeal from decision of the Federal Circuit Court dismissing application for judicial review of decision of the Administrative Appeals Tribunal affirming decision of a delegate of the Minister to refuse to grant the appellant a visa - where visa required satisfaction of the health criteria in cl 4007 of the Migration Regulations 1994 (Cth) - where delegate's refusal of the visa based on the appellant's son's failure to meet the health criteria by reason of his medical condition - where opinion prepared by Medical Officer as required by the Regulations - whether assessment undertaken by the Medical Officer sufficiently identified the nature and extent of the appellant's son's medical condition - whether opinion of Medical Officer was based on sufficiently current information - whether the Tribunal did not afford the appellant procedural fairness in failing to disclose a certificate issued under s 375A of the Migration Act 1958 (Cth) - where information covered by the certificate was used to determine the costs to the Australian community of medical and community services for the appellant's son - consideration of the primary judge's approach to materiality - appeal allowed
Legislation:

Administrative Appeals Tribunal Act1975 (Cth) ss 33(1)(c), 33(1AA)

Migration Act 1958 (Cth) s 375A

Migration Regulations 1994 (Cth) reg 2.25A, Schedule 4 cl 4007
Cases cited:

Applicant Y v Minister for Immigration and Citizenship [2008] FCA 367

BVD17 v Minister for Immigration and Border Protection [2019] HCA 34

CHZ19 v Minister for Home Affairs (No 2) [2019] FCA 1112

Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 262 CLR 510

Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123

Minister for Immigration & Multicultural Affairs v Seligman [1999] FCA 117; (1999) 85 FCR 115

Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197; (2017) 253 FCR 21

Minister for Immigration and Border Protection vSZMTA [2019] HCA 3; (2019) 264 CLR 421

Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553

Perez v Minister for Immigration and Border Protection [2017] FCAFC 180

Re Refugee Review Tribunal; Ex Parte Aala [2000] HCA 57; (2000) 204 CLR 82

Robinson v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1626; (2005) 148 FCR 182

Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141

WZARH v Minister for Immigration and Border Protection [2014] FCAFC 137; (2014) 230 FCR 130
Date of hearing: 6 November 2019
Registry: Western Australia
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 75
Counsel for the Appellant: Mr S Penglis SC
Solicitor for the Appellant: Jones Day
Counsel for…
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Details
Case
[2019] FCAFC 220
Decision Date

CaseChat Overview and Summary

In the case of Dang v Administrative Appeals Tribunal, the appellant, Dang, appealed against a decision of the Federal Circuit Court which dismissed his application for judicial review of a decision of the Administrative Appeals Tribunal (AAT). The AAT had affirmed the decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs to refuse to grant Dang a visa. The refusal was based on the appellant's son's failure to meet the health criteria in cl 4007 of the Migration Regulations 1994. The appellant argued that the AAT did not afford him procedural fairness and that the delegate's assessment of his son's medical condition was flawed.

The court was required to decide whether the assessment undertaken by the Medical Officer was sufficiently detailed in identifying the nature and extent of Dang's son's medical condition, whether the opinion of the Medical Officer was based on sufficiently current information, and whether the AAT had breached procedural fairness by not disclosing a certificate issued under s 375A of the Migration Act 1958. The court also needed to consider the primary judge's approach to materiality and the proper interpretation of the applicable provisions in the Regulations.

The court found that the third ground of appeal should be upheld as the assessment undertaken by the Medical Officer did not sufficiently identify the nature and extent of Dang's son's medical condition. The opinion of the Medical Officer was based on outdated information and did not conform to the requirements of the Regulations. Additionally, the AAT did not afford Dang procedural fairness by not disclosing the certificate issued under s 375A. Consequently, the appeal was allowed, the decision of the primary judge was set aside, and the matter was remitted to the AAT for determination according to law.

The court also made orders for costs, requiring the second respondent to pay Dang's costs of the proceedings before the Federal Circuit Court and of this appeal.

Orders

Orders of the court

1. The appeal be allowed.

2. Orders 2 and 3 made by the Federal Circuit Court on 27 February 2019 be set aside.

3. The matter be remitted to the Administrative Appeals Tribunal for determination according to law.

4. The second respondent pay the appellant's costs of the proceedings before the Federal Circuit Court and of this appeal to be assessed if not agreed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The appeal is brought on the basis that any of the above findings would demonstrate jurisdictional error in the Tribunal's decision. On that premise, it was contended that the primary judge had erred in failing to set aside the decision of the Tribunal.Summary of decision For the following reasons, the third ground (numbered 4 in the notice of appeal) should be upheld, but the other grounds have not been established. The appeal should be allowed, the decision of the primary judge should be set aside and instead there should be orders setting aside the decision of the Tribunal and remitting the matter for determination according to law.The criteria in cl 4007 The grounds of appeal raise questions the resolution of which depends upon the proper interpretation of the applicable provisions in the Regulations. Therefore, it is convenient to deal with those questions before dealing with the grounds. The terms in which cl 4007(1)(c) are now expressed were previously to be found in cl 4005. In Robinson v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1626; (2005) 148 FCR 182, it was held by Siopis J that the language used requires the Medical Officer to form an opinion by ascertaining the form or level of condition suffered by a visa applicant and then applying the statutory criteria by reference to an hypothetical person who suffers from that form or level of condition: at [43]. His Honour reasoned to that conclusion on the basis of earlier authorities and the scheme of the clause as a whole which was found to support a case by case assessment rather than a general approach for all persons with a particular condition. The decision in Robinson also concerned a person with Down syndrome. In that case, solicitors for the applicant had presented expert evidence to the Tribunal to the effect that (a) the applicant's communication was excellent and there was no reason for requiring extra medical services, although his parents could consider speech therapy; and (b) when the applicant finished school he should have the skills to undertake productive work. When that evidence was received, the Tribunal then requested a further report from the Medical Officer. An opinion was forthcoming which said:The applicant is a person intellectual impairment [sic] and speech disorder associated with Down's syndrome. He currently requires special education support and is likely to require further special education and allied therapies support in the future. It is considered unlikely that he would be capable of open employment as an adult, and thus would be likely to be eligible for use of income and community support services. At a subsequent Tribunal hearing, it was submitted that the Tribunal was not bound to accept the opinion of the Medical Officer because it did not conform to the requirements of the Regulations. It was submitted that instead of assessing the specific nature and extent of the applicant's condition, the Medical Officer had misconceived his task and had made a general assessment on the basis of a person suffering from Down syndrome without regard to the particular manifestation of the condition in the case of the applicant.

Ratio Decidendi

Legal Principle Established

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