Gill v Minister for Immigration
[2010] FMCA 587
•4 August 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GILL v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 587 |
| MIGRATION – Skilled (Residence) (Class VB) visa – medical report not filed with application – applicant relied on earlier medical examination lodged with his Student Visa application – Tribunal found that reg.855.215 not complied with- application rejected – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), s.65 Migration Regulations 1994 (Cth), cl.885.21, 885.213, 885.215, 885.224 |
| Berenguel v Minister for Immigration and Citizenship [2010] HCA 8 Minister for Immigration & Citizenship v Grant [2009] FCA 1059 |
| Applicant: | RAJINDERBEER SING GILL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2984 of 2009 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 10 May 2010 |
| Date of last submission: | 17 June 2010 |
| Delivered at: | Sydney |
| Delivered on: | 4 August 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr B. Zipser |
| Solicitors for the Applicant: | Mr B. Slater of Brett Slater Solicitors |
| Counsel for the Respondents: | Mr G. Kennett |
| Solicitors for the Respondents: | Ms N. Johnson of Sparke Helmore |
ORDERS
The application filed on 8 December 2009 be dismissed.
The Applicant pay the costs of the First Respondent of and incidental to this application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2984 of 2009
| RAJINDERBEER SING GILL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application filed on 8 December 2009 for review of a decision made by the Migration Review Tribunal, MRT Number 0806467 of Dione Dimitriadis dated 11 November 2009, not to award the Applicant a skilled (Residence) (Class VB) visa under s.65 of the Migration Act 1958 (Cth) (the Act).
A Court Book (“CB”) was prepared by the first Respondent’s solicitors and marked Exhibit “A”. An affidavit of Brett Harold Slater sworn 29 April 2010 was filed on behalf of the Applicant. This is the only evidence before the Court.
Background
The Applicant in these proceedings was born in Amritsar, India. He first arrived in Australia on 11 September 2005 on a Class TU Student (Subclass 572) visa which was granted to him on 1 September 2005. This visa expired on 13 October 2005. On 13 October 2005 the Applicant was granted a further Subclass 572 visa which expired on 19 October 2007. On 16 October 2007 the Applicant applied for a further sub-class 572 visa. On 20 November 2007 the Applicant was granted a further Subclass 572 visa which expired on 19 January 2008. On 14 January 2008 the applicant was granted a further Bridging A.
The Applicant applied to the Department of Immigration and Citizenship for a Skilled (Residence) (Class VB) visa on 14 January 2008. In reviewing the application, the delegate of the Minister decided to refuse to grant the visa on 17 September 2008 and notified the Applicant of the decision and his review rights by letter dated the same day (CB 32 – 36).
The delegate refused to grant the visa on the basis that the Applicant did not satisfy cl.885.215 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) on the basis that the application was not accompanied by evidence that the Applicant had made arrangements to undergo a medical examination in support of his visa application.
On 29 September 2008, the Applicant paid for a visa medical examination including blood test, x-ray and photo at Health Services Australia Ltd. His examination was scheduled to take place on 13 October 2008 (CB 59 – 61).
On 11 November 2009, the Tribunal affirmed the decision of the delegate and advised him by way of a letter the following day (CB 74 – 75). It is this decision that is the subject of review in the present proceedings.
The Tribunal decision
On 3 October 2008 the Applicant lodged an application for a review of the delegate’s decision with the Migration Review Tribunal. On 24 August 2009, the Tribunal sent the Applicant a letter requesting further information (CB 49). By a letter dated 15 September 2009, the Applicant (through his migration agent) responded to the letter (CB 50 – 57). The migration agent, in addition to including documentation evidencing the payment on 29 September 2008 for a medical examination scheduled to take place on 13 October 2008 (CB 59 – 61) and confirmed that the examination was undertaken on that date (CB 56.9). The Applicant appeared before the Tribunal on 4 November 2009 to give evidence and present his arguments. On 11 November 2009 the Tribunal affirmed the decision not to grant the Applicant a Skilled (Residence) (Class VB) visa.
The Tribunal’s decision was concerned with cl.855.215 of Schedule 2 to the Regulations. Clause 885.215 provides:
The application is accompanied by evidence that the applicant and each person included on the application has made arrangements to undergo a medical examination for the purpose of the application.
The Tribunal found that the Applicant’s visa application, when lodged, was not accompanied by evidence that he had made arrangements to undergo a medical examination (CB 81 at [38]).
The Tribunal found that the medical examination which the Applicant had undertaken earlier for the purposes of his Student Visa application was not relevant to the permanent visa, currently the subject of these proceedings (CB 81, [39]).
The Tribunal found that the Applicant’s arrangements to undergo a medical examination in October 2008 (when his visa application was lodged on 14 January 2008) was not sufficient evidence that the Applicant (and each person included in the application) had made arrangements to undergo a medical examination for the purposes of the Subclass 885 Visa application.
In its decision, the Tribunal refers to the recent decision of Minister for Immigration & Citizenship v Grant [2009] FCA 1059 which considers the meaning of the phrase “has made arrangements to undergo”. This case concerned the refusal of a Skilled (Provisional) (Class VC) visa. The Court considered the meaning of the words “has made arrangements to undergo” in clause 485.215(c) which states: “the application is accompanied by evidence that the applicant has made arrangements to undergo a language test specified by the Minister in an instrument in writing for this paragraph”. In relation to this construction, Her Honour Jagot J stated at para [28]
In this context the words “the application is accompanied by evidence that the applicant has made arrangements to undergo a language test” are directed towards an outcome contemplated by cl 485.222, being proof that an applicant has “competent English”. The purpose of the provision, to enable an applicant to demonstrate competent English at the time of application or of decision, is best achieved by giving the words their ordinary meaning. The ordinary meaning of the phrase “has made arrangements to undergo” involves two key aspects. First, the arrangements must have been made, in the sense of being in place or in existence, when the application is made. Second, the arrangements must be to undergo, in the sense of to take or to sit for, a test.
On that basis, the Tribunal concluded that cl.855.215 was not satisfied and that the Applicant’s visa application must therefore fail.
Issue
Mr Zipser contends that that the Tribunal erred by failing to have regard to the earlier medical examination which Mr Gill had undergone on or about 3 October 2007 and lodged with a Subclass 572 Student Visa. On 14 January 2008 (which was less than four months after the medical examination was lodged with the student visa) Mr Gill lodged an application for a Subclass 885 - Skilled Independent Visa. That application was accompanied by evidence that Mr Gill had both arranged to undergo and then underwent a medical examination on or about 3 October 2007. The argument advanced was that the information from the medical examination satisfied the health criteria for the Subclass 885 Visa. Mr Zipser contends that the Tribunal’s reasoning that the medical examination on or about 3 October 2007 was “for the purpose of” a Subclass 572 Visa application in October/November 2007, and therefore could not be, and was not “for the purpose of” the Subclass 885 Visa application lodged on 14 January 2008. Mr Zipser submits that the Tribunal’s construction of clause 885.215 was wrong.
Consideration
At the conclusion of the hearing on 10 May 2010, I invited the parties to file supplementary written submissions concerning the status of forms 26 and 160 which the Department of Immigration and Citizenship (“the Department”) use for medical examinations. The circumstances of this request is follows:
a)The affidavit of Brett Slater dated 29 April 2010 was tendered on behalf of the Applicant. The affidavit annexed copies of form 26 and 160 which Mr Slater deposes were in use by the Department and medical examiners at the relevant times.
b)An issue arose as to the status of use by the Department and medical examiners of forms 26 and 160.
The submissions filed on behalf of the Minister indicate that forms 26 and 160 are not prescribed or approved pursuant to any provision of the Act or Regulations. They have no formal statutory status, although they are apparently used regularly by practitioners in providing medical records for the purposes of visa applications. Documents also provided included extracts from the Department’s Procedures Advice Manual, the Department’s practice in relation to medical examinations including the use of these forms. However, I do not believe that any of this material assists the Court in the resolution of this matter.
In the present case, the relevant words in cl.885.215 are “is accompanied by evidence”. The argument advanced by Mr Kennett, on behalf of the Minister, is that the clear intention of cl.885.215 is that when the Minister’s delegate, or the Tribunal, considers whether the visa applicant meets cl.885.224 (which imports various health criteria from schedule 4 to the Regulations ie 4005(a) free from terberculosis (b) free from disease which are a threat to public health) the person undertaking that assessment will have access to a medical record based on a written examination of the applicant which deals with the relevant matters. This is achieved by requiring that arrangements to obtain the report be in place when the visa application is lodged (so that the examination occurs after that time) and a report is to be one obtained for the purposes of the visa application.
These requirements have been recently considered by the High Court in the decision of Berenguel v Minister for Immigration and Citizenship [2010] HCA 8 which was handed down after this application was filed on 8 December 2009. That decision established that cl.885.213 of Schedule 2 to the Regulations was not to be construed as imposing a criterion at the time of lodgement of the visa application. This was despite cl.885.213 which appears under the heading 885.21 “Criteria to be satisfied at time of application” which is the same heading under which cl.885.215 appears.
Schedule 2 of the Regulation which covers the provisions with respect to the grant of subclasses of visas, in Subclass 885 – Skilled – Independent is set out as follows:
885.21 Criteria to be satisfied at time of application
885.211…
885.212 (repealed)
885.213 Either:
a.The applicant’s nominated skill occupation is in major group (iv) in the Australian Standard Classifications of Occupations, and the applicant has vocational English: or
b.The applicant has competent English
885.214 The Application is accompanied by evidence that…
885.215 The Application is accompanied by evidence that the applicant and each person included in the application has made arrangements to undergo a medical examination for the purposes of the application.
Considerations that led to the decision in Berenguel were:
a)The evident purpose of cl.885.213 requires recent competency in English demonstrated by the time a decision was made. Achievement of that purpose did not require that a test be conducted before lodging an application (at [24]).
b)The separate provision which defined “competent English” (regulation 1.15B) was susceptible to a construction which encompasses an English test conducted after lodgement of the application (at [25]).
c)The heading “885.21 Criteria to be satisfied at the time of application” did not connect grammatically to anything in cl.885.213 and thus was insufficient to require that the clause was to be satisfied at that time – there being nothing in the clause itself pointing to that conclusion (at [26]).
d)A construction requiring that the criterion ne satisfied at the time of application was not to be preferred because it led to “unfairness and absurdity” (at [26]).
At [24] the Court expressly drew a distinction between cl.885.213 and the criterion presently under consideration in cl.885.215 where their Honours said:
[24] The evident purpose of the alternative criteria in cl 885.213 is to ensure that, when the Minister or delegate decides upon the application for a visa, the applicant will have demonstrated recent competency in the English language. It does not follow that the criterion can only be satisfied by evidence provided to the Minister at the time of submitting the application. In this connection it is useful to note the contrast between the requirements of cl 885.213 and cll 885.214 and 885.215.
Clause 885.215 imposes a substantive requirement, being that arrangements are in place to undergo a medical examination and the criterion is to ensure that when a decision is made, the decision maker will have before them, an up-to-date medical report. That purpose can only be achieved if cl.885.215 is understood to apply at the time of application. The criterion thus differs from that considered in Berenguel and the decision itself distinguishes the situation required in cl.885.213.
I accept the submissions made by Mr Kennett that the Tribunal found, as a fact, that Mr Gill had not made any arrangements to undergo a medical examination for the purposes of the Subclass 885 – Skilled Visa until eight months after the application was lodged and approximately two weeks after being notified by a delegate of the Minister that his application for the Subclass 885 Visa had been refused.
For the reasons set out above, I am satisfied that this application cannot be sustained and should be dismissed with costs.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Date: 4 August 2010
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