Guab v Minister for Immigration

[2018] FCCA 3083

FEDERAL CIRCUIT COURT OF AUSTRALIA

GUAB v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3083

Catchwords:
MIGRATION – Visa – partner visa – whether dependent child satisfied health criteria – whether Tribunal ignored relevant information – whether decision unreasonable – whether Tribunal erred in finding that certain public interest criteria should not be waived – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.65

Migration Regulations 1994 (Cth), r.2.25A, cl.309.228(2)(a) & (b), PIC 4007(1) & (2)

Cases cited:

Minister for Immigration and Multicultural Affairs v Ma (1998) 82 FCR 455

Bui v Minister for Immigration & Multicultural Affairs (1999) 85 FCR 134

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Applicant: KATRINA ISABEL SUZARA GUAB

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 59 of 2017

Judgment of: Judge Heffernan

Hearing date: 4 September 2018

Date of Last Submission: 4 September 2018

Delivered at: Adelaide

Delivered on: 30 October 2018

REPRESENTATION

Solicitors for the Applicant: Ms Gabito for Gabito Lawyers

Counsel for the Respondents: Mr O'Leary

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The application is dismissed.

2. The applicant is to forthwith pay the costs of the first respondent in the amount of SEVEN THOUSAND, TWO HUNDRED DOLLARS ($7,200).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 59 of 2017

KATRINA ISABEL SUZARA GUAB

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 18 January 2017. That decision affirmed an earlier decision of a delegate of the first respondent which had refused to grant a visa to Mr Rafael Ruivivar (‘the visa applicant’). The visa sought by the visa applicant was a Partner (Provisional) (Class UF) subclass 309 visa (‘the visa’) pursuant to s.65 of the Migration Act1958 (Cth) (‘the Act’).

2. The applicant in this matter is the visa applicant’s sponsor (‘the review applicant’).

3. Prior to the hearing, the review applicant filed an affidavit she had affirmed dated 22 May 2018.  That affidavit was comprised largely of information not before the Tribunal and essentially sought to address the merits of the Tribunal decision.  It is well-established that this Court is not empowered to reconsider the merits of the Tribunal decision.  A request that it should do so would be impermissible and antithetical to the limited nature of judicial review.  In any event, counsel for the review applicant indicated that she did not seek to rely on that affidavit.

4. The review applicant raises three grounds of application.  Ground 1 is highly particularised and, on one view, amounts to a number of distinct grounds.  I have dealt with each particularised complaint separately and the ground cumulatively.

5. The grounds are as follows:

   “1.    The decision of the Administrative Appeals Tribunal (‘the Tribunal’) was affected by jurisdictional error whereby the Tribunal failed to properly consider whether the visa applicant satisfy the clauses set out in Subclass 309 of the Migration Regulation 1994 (‘the  Regulation’) and considered only the cl.309.228 Schedule 2 to the Regulation in accordance to the health criteria set out in Public Interest Criterion (‘PIC’) 4007 Schedule 4 to the Regulation and rather proceeded on the basis of an erroneous understanding as to the precise nature of the issue  in the case, as to whether the visa applicant satisfied the health requirement set out by the Regulation through his non-migrating child.  Further, whether the non- migrating child would incur significant costs to Australian community in the areas of health and care of community services in Australia.

   Particulars

   1.1.   At paragraph (16) The Tribunal erroneously frames the issue as follows:

   The issue in this review is whether the visa applicant meets Public Interest Criterion (‘PIC’) 4007 as required by the criteria for the grant of the visa.

   1.1.1.     The issue raised by the case concerned only whether the visa applicant satisfy cl.309.228 of Schedule 2 of the Regulation through his non-migrating child and not a broader consideration of clauses in Subclass 309 of the Regulation  and 4007(2)(a) and (b) of PIC Schedule 4 of the Regulation.

   1.1.2.     Further, the criteria set out by cl.309.228 is contained by the Regulation in pursuant to Public Interest Criterion (‘PIC’) 4007.

   1.1.3.     The PIC relevantly prescribe certain mandatory considerations in the event of a request for health criteria waiver to which the decision maker is to have regard.

   1.1.4.     In expressing the issue this way, the Tribunal failed to recognise the relationship between PIC 4007 and cl.309.228 of the Regulation.

   1.1.5.     The issues framed in this way indicates that the Tribunal proceeded by considering the visa applicant’s compliance to the criteria set out by the Regulation for Subclass 309 depended solely and primarily to the non­migrating child’s ability to satisfy the PIC 4007 Schedule 4 of the Regulation.

   1.2.   From paragraph (33) the Tribunal seek an opinion of a Medical Officer of the Commonwealth (‘MOC’).

   1.2.1.     It is in accordance to r.2.25A of the Regulation that in determining whether a person meets the health criteria of PIC 4007(1) (a)(b) or (c), the Tribunal must seek the opinion of an MOC.

   1.2.2.     Upon seeking the opinion of an MOC, it must first satisfy the Tribunal that it apply the correct test in accordance to the respective medical condition of the applicant before forming a medical opinion of whether it satisfy the health criteria of PIC 4007 (1) (a) (b) or (c).

   1.2.3.     The Tribunal state that the MOC’s opinion in this case refers to a hypothetical person with the non-migrating child’s condition.

   1.2.4.     The MOC then declared that the non-migrating child of the applicant failed to satisfy PIC (1)( c)(ii)(A).

   1.2.5.     However, the MOC failed to state or consider whether such persons with such conditions be able to travel overseas whether to or from Australia to incur significant costs to Australian community in areas of health and care.

   1.3.   From paragraph (39) the Tribunal contemplate whether the requirements of PIC 4007 (1) (c) must be waived without full or satisfactory assessment from the MOC if the persons with such medical conditions like that of the non-migrating child is capable of long periods of travel.

   1.3.1.     Further, the assumed undue cost made by the Tribunal for the medical condition of the non-migrating child is improper due to lack of consideration as to the real state of the child’s medical condition.

   1.3.2.     The Tribunal further cite the case Bui v MIMA (1999) 85 FCR 134 (‘Bui’) at 47 as the basis of an ‘evaluative judgment’ of whether the medical cost to the Australian community or prejudice to others is ‘undue’.  Upon consideration, the case cannot serve as a legal basis for this case for although both refer to PIC 4007 Schedule 4 of the Regulation, the persons in question bear medical conditions that are incomparable to each other.

   1.4.   From paragraph (42) the Tribunal received oral evidence from the sponsor that with respect to PIC 4007 (2), the submission for a waiver made their behalf by their representative still apply and should be into account.

   1.4.1.     The Tribunal proceed to consider the circumstances of the sponsor and the visa applicant’s respective family situations.

   1.4.2.     The commencement of the sponsor and the visa applicant’s relationship and financial standing is taken in consideration.

   1.4.3.     The Tribunal declared that the sponsor, who is an Australian citizen, with three young adult children, who are all Australian Citizen and reside permanently in Australia with the sponsor , does not have strong ties to Australia due to her previous lack of employment.

   1.4.4 the Tribunal further takes into consideration the applicant and the sponsor’s investment in a business venture in Australia and declared that there are no grounds for accepting that this business venture will be success.

   1.4.5.     A business’ commercial success can never be clearly defined and measured for it is often affected by unforeseeable factors.  It is also irrelevant to the visa applicant’s Subclass 309 application and is not within the Tribunal’s jurisdiction.

   2.  In paragraph (74) the Tribunal stated the elements that consist the conclusion of their consideration.

   Particulars

   2.1.   The Tribunal considered the projected costs of the non-migrating child’s medical condition if the child is to come here in Australia. Therefore refusing the visa applicant’s application.

   2.2.   The Tribunal failed to acquire a comprehensive medical assessment of the non-migrating child’s medical condition and is therefore resulted to an “assumed” conclusion in regard to the child’s projected undue cost.

   3.  It was an error of law, or alternatively the Tribunal was unreasonable, in the legal sense, and it was therefore a jurisdictional error for the Tribunal to base the case solely and primarily to the non-migrating child’s failure to satisfy the health requirement set out by the regulation without due consideration to the visa applicant’s compliance to all other criteria set out for the grant of the visa.

   Particulars

   3.1.   The Tribunal failed to consider that the visa applicant comply and satisfy the criteria set out by Subclass 309 Schedule 2 to the Regulation but in exclusion of cl.309.228 due to a non-migrating child’s failure to satisfy PIC 4007 Schedule 4 of the Regulation.

   3.2.   The visa applicant then seek a waiver under PIC 4007 (2) (a) on the ground of full compliance to all other criteria for the grant of the visa applied for.

   3.3.   Further, the parties’ financial standing and respective family situations are not relevant basis for a conclusion of the application.

   3.4.   The conclusions and use of this evidence by the Tribunal was unreasonable in the legal sense having little regard to the relevant issues and criteria set out by Subclass 309 Schedule 2 of the Regulation, and the relevance of the visa applicant and the sponsor’s relationship.”

   (reproduced verbatim errors retained from the original)

6. Each ground is opposed by the first respondent and it is submitted that the application should be dismissed in its entirety with costs.

7. The central complaint of the review applicant is that the Tribunal erred in its decision in concluding that the visa applicant failed to satisfy the criteria embodied in cl.309.228(2)(a) in Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). Those criteria were time of application criteria. The visa application was made on 25 October 2013. On the first respondent’s case, the health criteria in Public Interest Criterion (‘PIC’) 4007 in the Regulations were not satisfied by a dependent child of the visa applicant. The visa application had been made by the visa applicant on the basis that the child, Emilia, was a non-migrating dependant. At the time of the application the visa applicant had four children, three of whom could be regarded as dependent. The criterion in subcl.309.228(2)(a) and (b) provide as follows:

   “(2)   Each member of the family unit of the applicant who is not an applicant for a Subclass 309 visa is a person who:

   (a)     satisfies public interest criteria 4001, 4002, 4003 and 4004; and

   (b)     satisfies public interest criterion 4007, unless the Minister is satisfied that it would be unreasonable to require the person to undergo assessment in relation to that criterion.”

8. From the above it can be seen that in order to meet subcl.309.228(2)(b) it was necessary for each member of a family unit to satisfy PIC 4007 unless the Minister was satisfied that it would be unreasonable to require a member of a family unit to have an assessment as otherwise required by PIC 4007.

9. Subclause 4007(1) and 4007(2) provided as follows:

   “(1)   The applicant:

   (aa)   if the applicant is in a class of persons specified by the Minister in an instrument in writing for this paragraph:

   (i) must undertake any medical assessment specified in the instrument; and

   (ii)     must be assessed by the person specified in the instrument;

   unless a Medical Officer of the Commonwealth decides otherwise; and

   (ab)   must comply with any request by a Medical Officer of the Commonwealth to undertake a medical assessment; and

   (a)     is free from tuberculosis; and

   (b)     is free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community; and

   (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

   (d)     if the applicant is a person from whom a Medical Officer of the Commonwealth has requested a signed undertaking to present himself or herself to a health authority in the State or Territory of intended residence in Australia for a follow‑up medical assessment—has provided the undertaking.

   (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.”

Medical Assessment, Delegate Findings and Tribunal Findings

1. Pursuant to subcl.(2) of PIC 4007 the visa applicant asked the Minister to waive the medical assessment for Emilia.  In support of that request, the visa applicant provided an affidavit from Emilia’s biological mother[1] who deposed that Emilia’s current condition made an assessment impossible, and that the child was still recuperating in hospital at the time.  The mother’s concern was that an assessment could cause stress to Emilia that might jeopardise her recovery.  Given her health problems, a medical assessment would likely prove exhausting to Emilia.  The review applicant wrote to the Department on 18 December 2013 confirming that the child was unfit to travel for the purpose of an assessment, emphasising that it was not intended that the child migrate to this country and asking that the assessment be waived on a compassionate ground.[2]

   [1]     Court Book (‘CB’) p 206.

   [2]     CB p 220.

2. The Department indicated that an assessment would be required,[3] notwithstanding the fact that Emilia was a non-migrating dependant.  Ultimately, the visa applicant conceded and Emilia was the subject of a medical assessment on 29 October 2014.  The assessment established that Emilia was a nine year old child with severe cerebral palsy and, as a result, had severe functional and cognitive impairment.  The child suffered from epilepsy and, as a consequence, required gastrostomy and tracheostomy.  Her condition was assessed as likely to be permanent.[4]

   [3]     CB p 224.

   [4]     CB p 258.

3. The Medical Officer of the Commonwealth (‘MOC’) concluded that Emilia did not meet PIC 4007(1)(c) and that the likely cost to the Australian community for providing disability and education services would be approximately $2.6 million.  That assessment was made against the requirements of a hypothetical person with the same condition and of the same severity as the child Emilia.[5]

   [5]     CB, ibid.

4. In August 2015, the delegate refused to grant the visa because it was concluded that the visa applicant could not satisfy the requirements of cl.309.228 of the Regulations.[6]  The Tribunal hearing in this matter took place on 18 January 2017 with the review applicant appearing in person and the visa applicant attending by way of telephone link.

   [6]     CB p 311.

5. The Tribunal published its reasons in January 2017 and, inter alia, made the following findings:

   a)That the non-migrating child was a member of the relevant family unit being a dependent child of the family head pursuant to rr.1.12 and 1.03 of the Regulations.

   b)As a result of the decision of the Minister for Immigration and Multicultural Affairs v Ma (1998) 82 FCR 455, it was not open to the Tribunal to be satisfied that it would be unreasonable to require the child to undergo a medical assessment as that assessment had already been completed.

   c)The non-migrating family members were required to be assessed under PIC 4007 due to the operation of cl.308.228.

   d)That in circumstances where an opinion of a MOC is required, the Tribunal must take that opinion as being correct.  The Tribunal was satisfied that the MOC had applied the correct legal test in this matter.

   e)That PIC 4007(1)(c) can be waived if the Tribunal was satisfied that granting the visa would be unlikely to result in undue costs to the Australian community or undue prejudice to the access to healthcare or services of Australian citizens or permanent residents.

   f)There was a lack of evidence to support the contention that the child would not be able to travel to Australia and accordingly it was not persuaded that she was not capable of doing so.

   g)The review applicant had not worked since August 2016 and had very limited funds available to her which would directly affect her ability to offset any care costs for the child in the event that she entered Australia.

   h)In 2010, the review applicant failed to declare her pre-existing relationship with the visa applicant at the time of her migration to Australia and this reflected poorly on her credit.

   i)Notwithstanding the contentions of the review applicant to the contrary, the Tribunal was not satisfied that the child would not be brought to Australia and was concerned about the proposed future care arrangements for the child and was not persuaded that she could not travel to Australia.

   j)It was not satisfied that granting a visa to the visa applicant would be unlikely to result in undue cost or undue prejudice as set out in PIC 4007(2) and accordingly PIC 4007(1)(c) could not be waived.  As a consequence, the visa applicant could not satisfy PIC 4007 and the decision had to be affirmed.

Consideration

Ground 1.1

1. The review applicant asserts that the Tribunal fell into jurisdictional error because it focused only on matters concerning the non-migrating child rather than taking into account other primary and secondary criteria. I accept the submission of the first respondent that this submission is misconceived. Part of the mandatory primary criteria for the grant of the visa that had to be satisfied at the time of the decision was that pursuant to cl.309.228(2) every member of the family unit who was not an applicant for the visa had to satisfy PIC 4007. Unless that requirement was waived by the Minister, it had to be met. If it could not be met, it was irrelevant that the visa applicant may have satisfied other criteria. As the first respondent has submitted, the Tribunal was required to consider the basis for the refusal of the visa and determine if it was correct or preferable. For that reason, the delegate’s basis for rejecting the visa was the central issue for the Tribunal. The correctness or otherwise of the delegate’s decision centred on whether the non-migrating child in question was a ‘dependant’ of the visa applicant. If she was, then it was necessary that she satisfy PIC 4007 and unless the requirement was waived, she was required to be medically assessed. The Tribunal correctly identified those issues and did not misapprehend the relationship between PIC 4007 and cl.309.228. I dismissed ground 1.1.

Ground 1.2

1. Ground 1.2 is also misconceived.  The MOC was not required to consider whether a hypothetical person with the same conditions and symptoms as the non-migrating child would be able to travel to or from Australia and thus potentially incur significant cost to the Australian community.  The complaint of the review applicant imports a requirement on the MOC that did not exist under the PIC.  The MOC was required to make an assessment of the child’s condition and then consider how that condition would affect a hypothetical person.  From there, it was required to consider whether such condition would require care and services.  The requirement that the MOC consider the impact of the conditions on a hypothetical person of itself demonstrates that the question of whether a non-migrating dependent child would be able to travel to this country is not part of the pathway to identifying the potential cost implications for the purpose of the PIC.

2. In any event, there was no error in the way in which the Tribunal approached the opinion of the MOC.  It identified the relevant statutory considerations[7] and was required by the Regulations to accept the MOC assessment as being correct.[8]  I dismiss ground 1.2.

   [7]     CB, p 386 at [35]-[36].

   [8]     Regulation 2.25A.

Ground 1.3

1. As to ground 1.3, I reject the submission of the applicant that the Tribunal failed to give proper consideration to “the real state of the child’s medical condition”.  The Tribunal had before it the opinion of the MOC which described in detail the nature of the medical condition in question.  The Tribunal referred to the opinion in its decision record and summarised the diagnosis in a manner that suggests that it understood the opinion.  Further, the Tribunal did not rely on the decision in Bui v Minister for Immigration & Multicultural Affairs[9] for the purpose of comparing the medical condition of the relevant person in that matter with the child, Emilia, in order to ascertain whether the medical costs to the Australian community or prejudice to others was undue.  In referring to Bui’s case, all the Tribunal was doing was, as the first respondent submits, identifying the nature of the evaluative judgment required to determine if the cost or prejudice could be regarded as “undue”.  That is clear from its reasons.[10]  The Tribunal did not reason by way of weighing the nature and extent of the medical condition in Bui’s case against the medical condition of the child in this matter.  I dismiss ground 1.3.

   [9] (1999) 85 FCR 134.

   [10]    CB p 387 at [40]-[41].

Ground 1.4

1. As to ground 1.4 of the application, it is complained that the Tribunal took into account an irrelevant consideration when considering whether there should be a waiver of PIC 4007(1)(c), because it deliberated on the question of the likely commercial success or otherwise of the review applicant’s business venture.  The Tribunal correctly identified that the discretionary element of ministerial waiver encompassed compassionate and compelling circumstances.[11]  The Tribunal had regard to the procedures advice manual ‘PAM3’ for guidance on the exercise of that discretion and listed relevant factors from it.  One of those factors was “assets or factors that may mitigate the costs or prejudice to access to care or services involved”.  It was open to the Tribunal to regard the viability of the review applicant’s business ventures when asking itself if there were, for example, any factors that might mitigate any potential costs to the Australian community.  In that context, it was also open to the Tribunal to have regard to the fact, as it did, that the review applicant was not at that time working and was in receipt of Centrelink benefits.  I dismiss ground 1.4.

   [11] CB p 387 at [41].

2. I have considered whether cumulatively the complaints in grounds 1.1-1.4 in some way establish jurisdictional error.  I am not satisfied that they do.

Ground 2

1. With respect to ground 2, the written submissions of the first respondent dealt with the problems inherent in that ground succinctly in this way:

   “Quite apart from the fact that:  (a) the Tribunal was not obliged under the statutory scheme to acquire a further medical assessment;  (b) there was no evidence to indicate that the child’s condition had been incorrectly assessed (indeed, the applicants accepted its accuracy) (CB 389[63]));  and (c) there was no evidence to suggest that there had been a material change in the non-migrating child’s condition to indicate whether such an assessment would give rise to a more beneficial result, the Tribunal did, in fact, consider whether a further opinion was called for given the lapse of time:  CB 386[38].  The Tribunal noted that the oral evidence indicated Emilia’s condition was declining and that given she resided with the visa applicant’s former wife (which presented difficulties with obtaining a further assessment), the Tribunal considered it was not appropriate to request a further MOC opinion.  Clearly enough, that conclusion was open on the material and cannot in any way be considered to be legally unreasonable in the relevant sense.  The ground must be dismissed.”

2. I accept that submission.  I dismiss ground 2.

Ground 3

1. As for ground 3, the Tribunal’s decision dealt with the question of waiver of PIC 4007(2). By the time of the Tribunal hearing, the medical assessment referred to in subparagraph (3.1) of this ground had already been undertaken. No question of whether the requirement for a medical assessment should have been waived was before the Tribunal for precisely that fact. As the first respondent has submitted, the exempting power under cl.309.228(2)(b) does not exist for the purpose of undoing a medical assessment that has already been conducted.[12] As I have already observed, the Tribunal hearing was concerned with whether the child was caught by cl.309.228, whether a valid medical assessment had been undertaken, and whether PIC 4007(1)(c) should be waived. The Tribunal correctly determined that the child did come within cl.309.228 and that the medical assessment complied with the statutory requirements. With respect to the waiver of PIC 4007(1)(c), the reasoning of the Tribunal was considered, extensive, and clearly involved an evaluative judgment. The decision it reached was open to it, it did not lack an “evident and intelligible justification”[13] and no unreasonableness in that decision has been identified.  I dismiss this ground.

   [12]    Ma at [460].

   [13]    Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76].

2. I make the orders to be found at the beginning of these reasons.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Date: 30 October 2018