Gella v Minister for Immigration

[2018] FCCA 2647

FEDERAL CIRCUIT COURT OF AUSTRALIA

GELLA v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2647

Catchwords:
MIGRATION – Application for Employer Nomination (Permanent) visa – review of Administrative Appeals Tribunal decision – whether the Tribunal erred in forming a conclusion on evidence not open to it – whether the Tribunal erred by not making a finding or failing to consider an issue raised by the applicant – jurisdictional error – writs issued.

Legislation:

Migration Regulations 1994 (Cth), reg.2.25A, cl.186.224 of sch.2; criterion 4007 of sch.4

Cases cited:

He v Minister for Immigration & Border Protection (2017) 255 FCR 41
Masters Home Improvement Pty Ltd v North East Solution Pty Ltd [2017] VSCA 88

Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323

Applicant: GINA TRIA GELLA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2413 of 2017

Judgment of: Judge Smith

Hearing date: 12 June 2018

Date of Last Submission: 12 June 2018

Delivered at: Sydney

Delivered on: 8 November 2018

REPRESENTATION

Counsel for the Applicant: Mr N Poynder

Solicitors for the Applicant: Salvos Legal

Solicitors for the Respondents: Mr L Dennis, Minter Ellison

ORDERS

1. A writ of certiorari issue quashing the decision of the second respondent dated 3 July 2017.

2. A writ of mandamus issue directed to the second respondent requiring it to determine the applicant’s application for review of the decision of a delegate of the first respondent dated 3 November 2015 according to law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2413 of 2017

GINA TRIA GELLA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of the Philippines who has worked in Australia as a registered nurse since May 2011.  On 5 March 2015, she applied for an Employer Nomination (Permanent) visa.  The grant of that visa was subject to satisfaction of a number of criteria including that any member of the applicant’s family unit meets certain health conditions even if that member had not applied for the visa. 

2. There is no issue that the applicant’s son, who remains in the Philippines, did not meet that condition. The question is whether the decision by the Administrative Appeals Tribunal not to waive that requirement was affected by error.

3. For the reasons that follow, the Tribunal did not properly address the question of whether the health condition could be waived and so constructively failed to exercise its jurisdiction.

Relevant statutory criteria

1. The criterion relevant to the issues in these proceedings was contained in cl.186.224(3) of sch.2 to the Migration Regulations 1994 (Cth). That clause provided:

   (3)Each member of the family unit of the applicant who is not an applicant for a Subclass 186 visa satisfies public interest criterion 4007 unless it would be unreasonable to require the member to undergo assessment in relation to the criterion.

2. Public Interest Criterion (PIC) 4007 relevantly provided that:

   (1)The applicant:

   ...

   (c)subject to subclause (2)—is free from a disease or condition in relation to which:

   (i)    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 described in subclause (1A); and

   (ii)    the provision of the health care or community services 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;

   regardless of whether the health care or community services will actually be used in connection with the applicant; and

   ...

3. PIC 4007(2) provides for a waiver of the condition in 4007(1)(c) and provides:

   (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.

Background

1. In her visa application the applicant stated that she had a son who was a dependent family member but who was not travelling to Australia and was not an Australian citizen.  This son, Hans, was at the time of the application thirteen years old.

2. In light of that information, a critical question in the visa application was whether Hans satisfied the condition in PIC 4007(1)(c) and, if not, whether that condition ought to be waived.

3. In determining the question whether a person meets the requirements of PIC 4007(1)(c) the Minister is required by reg.2.25A(1) of the Regulations to seek the opinion of a Medical Officer of the Commonwealth (MOC) subject to certain irrelevant matters. Regulation 2.25A(3) requires the Minister to take the opinion of the MOC on that matter to be correct for the purposes of deciding whether the person meets the requirement or satisfies the criterion.

4. In the present case, a delegate of the Minister sought the opinion of the MOC in respect of Hans.  On 26 June 2015, the MOC provided an opinion that Hans did not meet paragraph 4007(1)(c) of sch.4 to the Regulations.  The basis of that opinion was that Hans had severe visual impairment which was likely to be permanent and also had mild developmental delay which was also likely to be permanent.  The MOC considered that a hypothetical person with these conditions, at the same severity as Hans, would be likely to require health care or community services including special education services, Commonwealth disability services, State disability services, and residential care services and that they “would be likely to result in a significant cost to the Australian community in the areas of health care and/or community services”.  The MOC gave an opinion that the estimated cost to the Australian community for the provision of those services would be $3,856,716.

5. The applicant was sent a copy of the MOC’s opinion and told that in light of that opinion, the visa for which she had applied may only be granted where a delegate exercises a health waiver in respect of Hans.  The applicant was sent a form for the purposes of making an application for waiver of the health condition.

6. In response, the applicant’s agent sent a number of emails to the Department of Immigration.  In these emails the agent essentially made the point that Hans had never been, and never would be, a prejudice to the health system because he was well cared for in the Philippines and there was no intention of him ever coming to Australia.  The agent submitted that Hans remained, and had always remained overseas with a full time carer and with the visa applicant’s mother.

7. The agent provided a letter from Hans’s carer and his grandmother.  The carer, Ms Dolar, stated that she had been looking after Hans for the past 3½ years since 2012 and that she considered Hans as one of her children already and having been provided all financial support by the visa applicant.

8. The agent also provided evidence to the Department of money transfers by the visa applicant to Hans’s carer and evidence of the applicant’s income which was said to be more than enough to assist Hans.

9. In her waiver form the applicant wrote that she had been a single mother for 8 years and had been providing financially for Hans in that time and further, that there would be no way for her to provide that care if she went back to the Philippines.

10. On 3 November 2015, a delegate of the Minister made a decision to refuse to grant the applicant a visa.  The delegate relied upon the opinion of the MOC that Hans did not meet paragraph 4007(1)(c) of sch.4 to the Regulations and decided not to waive that requirement as she was not satisfied that the significant cost identified by the MOC was “outweighed by mitigating factors and/or compassionate and compelling circumstances”.  The applicant then applied to the Tribunal for review of the delegate’s decision.

11. Before the Tribunal, the applicant acknowledged in a letter dated 28 April 2017 from her lawyer, that Hans was unable to satisfy PIC 4007(1)(c) however, submitted that the health waiver should be exercised because:

    ...[t]here is no intention of Mr Hans Gella to migrate to Australia.  In summary, Mr Gella has never travelled outside the Philippines and is in stable and long-standing living and care arrangements in the Philippines, which are financially supported by Ms Gella.

12. It was also submitted:

    Having regard to the health condition of Mr Hans Gella, it is acknowledged and submitted that Mr Hans Gella is ineligible to obtain a visa to migrate to Australia, (unless a PIC 4007(2) health waiver was exercised in relation to a separate visa application of Mr Hans Gella, which is at least uncertain and improbable).

    As there is no intention to seek for Mr Hans Gella to migrate to Australia and as Mr Gella is probably ineligible for a visa to migrate to Australia, the grant of a visa to Ms Gella would be unlikely to result in health costs to the Australian community or prejudice to access to services by Australians.  

13. On 2 May 2017 the Tribunal conducted a hearing.  The Tribunal identified the critical issue at the hearing as being whether Hans might apply for a visa to come to Australia.  The applicant gave evidence about Ms Dolar whom she described as being like a “long far off relative” and “almost like a second mum” to Hans.

14. The Tribunal asked the applicant what might happen if something happened and the relationship with Ms Dolar ended.  The applicant replied that they were not thinking about that and that they had made an agreement that Hans was going to be the priority in everything.  When asked by the Tribunal why it should be satisfied that she would not then try to bring Hans to Australia if she were granted a visa, the applicant stated[1]:

    APPLICANT:    He is being taken cared [sic] of in there, like, 24 hours in a day. Like, somebody’s going to be there. And, money wise, like, if I want to bring him over in here it’s going to cost me so much money as well.  And, the quality of life that he has there, in a way – because, like, he did – he does have, like, Jenny to be with him, because they stay in that house, like, you know, Jenny’s going to be there to be with him, and it doesn’t have to cost me as much.

    ...

    And, I wouldn’t want to take him away from, you know, from that comfortable environment as well.  He just probably want to see me, like, at least, like, once a year or twice in a year sort of thing.

    [1] Transcript of 2 May 2017, page 15, lines 9–24.

15. The Tribunal also asked whether the applicant’s sisters, both of whom live in Australia, would be able to support Hans if he came to Australia.  The applicant stated that that was not the plan and that in any event he would not even be allowed as he would be refused a visa. 

16. On 20 June 2017, the Tribunal held a further brief hearing in order to discuss the question of the costs assessed by the MOC.  Once again, at that hearing, the applicant emphasised that if Hans applied for a visa he would have to meet the health requirements.

17. On 3 July 2017, the Tribunal made its decision to affirm the decision of the delegate.

Tribunal’s decision

1. The Tribunal first determined that Hans was required to, but did not meet the condition in PIC 4007(1)(c) of the Regulations in light of the opinion of the MOC.  It then noted, at [13], that the requirement in 4007(1)(c) may be waived:

   ...if among other things, the decision maker is satisfied that the granting of the visa would be unlikely to result in either ‘undue cost’ to the Australian community or ‘undue prejudice’ to the access to health care or community services of an Australian citizen or permanent resident: 4007(2).

2. It noted that the question of “whether the cost to the Australian community or prejudice to others was ‘undue’” was an evaluative judgment which “may import considerations of compassionate or other circumstances”: [14]. The Tribunal then referred to the Departmental policy guidelines contained in the Procedures Advice Manual (PAM3) before setting out, at some length, the evidence given by the applicant in connection with the issue.

3. Under the heading “Assessment of the evidence” the Tribunal set out its findings and conclusions in respect of the question of waiver.  At [45], it noted that a significant factor in the case was the question of whether the applicant intended to apply for her son to migrate to Australia.  At [46] the Tribunal found that, in light of the various support available in Australia as described by the MOC, it was “not satisfied the applicant would not be able to continue to work on a full-time basis if Hans were to migrate to Australia”.  It then noted at [47] that while there was some indication that Hans might pursue further study at college in the Philippines there were no definite plans regarding his future in that country.

4. The Tribunal’s critical reasoning is found in the following paragraphs of its statement of reasons:

   48.The applicant has stated that while it is difficult for her to live separately from Hans she prefers to leave him in the Philippines in a stable caring environment. The Tribunal has concerns that, while the arrangement has been stable in the past, it may not be permanent. Jennifer Dolar may have provided good care in the past but she does so as an employee, not as a relative, and while Hans is of school age. The Tribunal is of the view the arrangement may change when the applicant’s elderly mother passes away and Hans finishes school. The Tribunal is concerned that this employment arrangement may then end, at which time the applicant will decide to apply for Hans to migrate to Australia, particularly given the level of financial support and services available to him here. The Tribunal accepts that it may be difficult for him to come to Australia and attend school at this stage in his life, because he does not have English. However if the care arrangement with Jennifer Dolar breaks down, the Tribunal is concerned this may be the preferred option, to have Hans with his mother. The Tribunal takes into account the applicant’s claim that she will find another carer in the Philippines but it has concerns as to whether she will be able to find another carer who is willing to provide this level of support. The applicant has argued she would not be able to afford to employ a full-time carer in Australia. On the basis of the MOC’s opinion regarding the support available in Australia the Tribunal is of the view that Hans would be entitled to significant financial support here which would make it viable for the applicant to have Hans migrate here. It is not satisfied that in those circumstances she would not be able to continue to work on a full-time basis as there are supports available as discussed at the hearing. It accepts that she does not want Hans to live in residential care however it is not satisfied he would have to do this. Hans does not appear to have a close relationship with his father who does not care for him and there is no suggestion he would do this if the arrangement with Jennifer Dolar breaks down. Having regard to all of the evidence, the Tribunal is not satisfied the applicant will not apply for Hans to migrate to Australia in the future.

   49.The Tribunal is of the view the estimated costs of $3,856,716 are significant and undue. The Tribunal is not satisfied the applicant has supports in place in Australia so as to mitigate those costs. She has contact with her sisters, and they might provide her with some support as stated by one sister, but they essentially live separate lives. She is part of a church community but she has not argued that they will provide care or carry any of the costs involved in supporting and caring for Hans if he were to come to Australia. The Tribunal accepts that the applicant, a skilled registered nurse working in an occupation in demand, is highly valued by her employer. She is not in a relationship with an Australian citizen or permanent resident. There have been no concerns regarding her conduct and there is no evidence of non-compliance with visa conditions. It accepts that the uncertainty regarding her future and Hans’ prognosis is the cause of some stress. However, overall the Tribunal remains concerned that the applicant may decide, after being granted a permanent visa, to apply for Hans to migrate to Australia. It remains concerned that the past stable care arrangement with Jennifer Dolar may not be permanent in the future and the preferable course, given the amount of financial support and services available here, may be to have Hans migrate to Australia to live with his mother.

5. The Tribunal then concluded at [50] that it was “not satisfied that the granting of a visa would be unlikely to result in undue cost or undue prejudice within the terms of PIC4007(2)(b)” and therefore, PIC 4007(1)(c) could not be waived.

Consideration

1. The applicant relied on two grounds. The first ground was that it was not open on the evidence for the Tribunal to conclude that it was not satisfied that the grant of the visa would be unlikely to result in undue cost or undue prejudice.

2. She argued that this conclusion turned on the Tribunal’s determination that the care arrangement with Ms Dolar might break down and that an application for Hans to migrate to Australia might be made if that occurred. The applicant pointed out that each of those matters was conditional and that there was no evidence to support them. In other words, she argued, they amounted to no more than speculation as opposed to the drawing of a valid inference from available material: Masters Home Improvement Pty Ltd v North East Solution Pty Ltd [2017] VSCA 88 at [101].

3. Further, she submitted that the evidence went all one way: the care arrangement was stable and ongoing, Ms Dolar treated Hans like a son and was willing to take care of him indefinitely and would be supported financially from Australia, as had occurred to date.

4. The Minister argued that the question raised by criterion 4007(2)(b) was a forward-looking one that required a degree of evaluation and speculation and that was what the Tribunal did. The Minister also relied on the following statements made by the Tribunal at the hearing to support the contention that the Tribunal had in fact formed a view about the likelihood of a successful application for a visa:

   Transcript of 2 May 2017, pages 28, line 33-39

   APPLICANT:    He would be – just be refused. That’s all.

   MEMBER:But – but, he might not be. You know, I think that’s what the Delegate’s concerned about. It – it’s an unknown. Who knows what a – a decision maker might do. But, is there any other reason, that you haven’t covered, why you think that you wouldn’t do that, you wouldn’t apply for Hans to come here?

   Transcript of 20 June 2017, page 2 line 38

   MEMBER: So, it wouldn’t necessarily be refused, because he’s your child and he’s still under 18. So, even if you didn’t meet the medical requirement, there is some discretion involved, and – in the decision making about an application for Hans. And, because he’s under 18 I may form the view that it’s likely that a discretion would be exercised that would allow him to come, because he’s your – he’s your biological son, he has a disability, if – if you were a permanent resident in Australia it may be that – that it would be a possibility that the discretion would be exercised, which would allow him to come here.

1. The Minister submitted that it was open to the Court to consider the transcript of the Tribunal hearing to inform itself of the factual context and the decision actually made by the Tribunal. Leave was granted to supplement that submission with further written submissions.

2. The Minister’s further submissions relied on a number of authorities. The first was Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 where the Court said, at [45]:

   In circumstances where no reasons for the exercise of power, or for a decision, are produced, all a supervising court can do is focus on the outcome of the exercise of power in the factual context presented, and assess, for itself, its justification or intelligibility bearing in mind that it is for the repository of the power, and not for the court, to exercise the power but to do so according to law. This was the position in, for example, Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353: see at 359-360. Where there are reasons, and especially where a discretion is being reviewed, the court is able to follow the reasoning process of the decision-maker through and identify the divergence, or the factors, in the reasons said to make the decision legally unreasonable.

3. The next was He v Minister for Immigration & Border Protection (2017) 255 FCR 41 where the Court held, at [79]:

   The Tribunal’s findings upon the matters set out in reg 1.15A(3) are made in the course of making a decision as to whether it is satisfied that the visa applicant and the sponsor are in a “married relationship” within s 5F of the Act.  It must be emphasised that there is a distinction between the making of a decision by the Tribunal and the written statement it must give under s 368 of the Act: see Yusuf at [30]; Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422 at [19], approved in Semunigus v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 533; [2000] FCA 240 at [11], [55], [101]; Minister for Immigration and Citizenship v SZQOY (2012) 206 FCR 25; [2012] FCAFC 131 at [40]. The making of a decision involves a mental process. The written statement functions as a record of the Tribunal’s reasons for making its decision. Those reasons provide evidence of the mental process engaged in by the Tribunal. If the written statement does not set out a finding concerning any of the prescribed matters set out in reg 1.15A(3) in Roman numerals, it may (but will not necessarily) lead to an inference that the Tribunal member made no such finding as part of his or her mental process when making the decision. In such a case, the Tribunal will not have complied with its obligation under reg 1.15A(2) to “consider” all of the circumstances of the relationship, including all the matters set out in reg 1.15A(3).

4. Finally, the Minster referred to the reasons of Callinan J in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [235] where his Honour said:

   But in any event “reasons for the decision” as referred to in s 430(1)(b) do not mean reasons in detail with respect to each and every argument advanced by an applicant. “Reasons” mean reasons why the Tribunal considers that the application should be dismissed. And so long as the reasons given are sufficient for that purpose, the requirements of s 430 are satisfied.

5. None of those decisions assists the Minister’s arguments. As the Full Court noted in He, the written statement prepared by the Tribunal functions as a record of its reasons for making its decision. That, and the decision in Singh, is inconsistent with the Court searching through previous statements made by the Tribunal to determine whether its decision might be supported by something outside the statement of reasons. For that reason, I am not assisted by what the Tribunal member said at the hearing. Even if I were to have regard to the passages relied on by the Minister, I would not be satisfied that what the Tribunal said at the hearing formed part of its reasoning. That is because, quite understandably, the Tribunal was expressing only tentative views. The purpose of doing so was not, as it was in its statement of reasons, to explain that, or why, it had made up its mind, but rather to give the applicant the opportunity to address the possibility that it might come to a particular view. That view, however, was not one that appeared in the Tribunal’s statement of reasons.

6. While I accept the force of the applicant’s argument, I consider that the real error made by the Tribunal was that it stopped short of assessing whether it was “unlikely” that the grant of the visa would result in undue cost or prejudice. Its analysis was entirely focused on the possibility that the applicant would apply for her son to migrate to Australia. Possibility, however, was insufficient to address the question posed by criterion 4007(2) which is directed at the question of “likelihood”, even though it is framed in the negative. That is, the Tribunal had to determine the probabilities first, of the applicant’s son applying for a visa and, second, that he would be granted the visa.

7. The possibility of the former was a necessary, but insufficient, step in the required analysis. In failing to take the next step, the Tribunal failed to properly address the question posed by the Regulations and, because that was critical to its decision, it constructively failed to exercise its jurisdiction.

8. The applicant’s second ground was that the Tribunal failed to consider, or make findings about an issue raised by the applicant, namely, that given Hans’ condition, it was highly unlikely that he would ever meet the health criterion and so would be very unlikely to satisfy the requirements for the grant of a visa to travel to and enter Australia.

9. This ground is, in effect, a different way of expressing the conclusion I have reached in respect of the first ground. Whether the Tribunal erred by failing to consider an argument clearly raised by the applicant, or one that had to be considered on the basis of its other findings on a proper understanding of the legislation, it fell into jurisdictional error.

Conclusion

1. For those reasons, the Tribunal’s decision must be set aside and the matter remitted to the Tribunal so that it may complete the task of reviewing the decision of the delegate.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:  8 November 2018