Han v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

Han v Minister for Home Affairs [2019] FCA 331

Appeal from: Han v Minister for Home Affairs & Anor [2018] FCCA 2207
File number: NSD 1637 of 2018
Judge: BROMWICH J
Date of judgment: 11 March 2019
Catchwords: MIGRATION – appeal from orders of the Federal Circuit Court dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal – where leave sought to rely upon new proposed ground of appeal not raised in Federal Circuit Court – whether opinion of the Medical Officer of the Commonwealth formed in accordance with law – whether jurisdictional error – held:
leave to rely upon new proposed ground of appeal refused – opinion of the Medical Officer of the Commonwealth formed in accordance with law – no jurisdictional error – appeal dismissed
Legislation:

Migration Act 1958 (Cth) Pt 8, s 476A,

Migration Regulations 1994 (Cth) reg 2.25A; cl 885.224 (repealed) of Sch 2, cl 4005 of Sch 4

Cases cited:

AAM15 v Minister for Immigration and Border Protection [2015] FCA 804; 231 FCR 452

Blair v Minister for Immigration and Multicultural Affairs [2001] FCA 1014

Buadromo v Minister for Immigration and Border Protection [2017] FCA 1592

BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; 161 ALD 441

Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352

Coulton v Holcombe (1986) 162 CLR 1

Haque & Ors v Minister for Immigration and Anor [2015] FCCA 1765; 298 FLR 375

Haritos v Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315

Imad v Minister for Immigration and Multicultural Affairs [2001] FCA 1011

Inguanti v Minister for Immigration and Multicultural Affairs [2001] FCA 1046

JP1 & Ors v Minister for Immigration and Citizenship [2008] FMCA 970; 220 FLR 37

Malek Fahd Islamic School Limited v Minister for Education and Training (No. 2) [2017] FCA 1377

Minister for Home Affairs  v Buadromo [2018] FCAFC 151; 362 ALR 48

Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73; 250 FCR 510

Minister for Immigration and Border Protection v Nguyen [2017] FCAFC 149; 254 FCR 522

Minister for Immigration and Multicultural Affairsv Seligman (1999) 85 FCR 115

MZYPO v Minister for Immigration and Citizenship [2013] FCAFC 1

NKWF v Minister for Immigration and Border Protection [2018] FCA 409

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

Pillay v Minister for Immigration [2009] FMCA 517

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

Singh v Minister for Immigration and Border Protection [2018] FCAFC 52

Summers v Repatriation Commission [2015] FCAFC 36; 230 FCR 179

Sun v Minister for Immigration and Border Protection [2016] FCAFC 52; 243 FCR 220

SZLPH v Minister for Immigration and Border Protection [2018] FCAFC 145

Traill & Ors v Minister for Immigration and Citizenship [2013] FCCA 2

Triandafillidou v Minister for Immigration & Multicultural…

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Details
Case
[2019] FCA 331
Decision Date

CaseChat Overview and Summary

In the case of Han v Minister for Home Affairs, the appellant, Ms Han, sought leave to appeal the Federal Circuit Court's decision that dismissed her application for judicial review of a decision by the Administrative Appeals Tribunal (AAT). The primary issue was whether the Medical Officer of the Commonwealth (MOC) formed an opinion in accordance with the law, and whether there was a jurisdictional error in the AAT's decision.

The legal issues before the court included the nature of the error alleged and whether it constituted a jurisdictional error. The court had to determine if the MOC's opinion was formed according to law and if there was any confusion or misinterpretation of evidence by the AAT. The court also examined whether the alleged error was a matter of fact or a matter of law, and if it was significant enough to constitute a jurisdictional error.

The court found that the MOC formed an opinion based on the fact that the autistic child in question was "totally dependent in all of her activities of daily living," which was factually incorrect. However, the court concluded that this did not amount to a jurisdictional error because the opinion was not read in a nitpicking way, and there was no evidence to support the MOC's claim. The court further found that the error alleged by Ms Han was one of fact, not law, and did not rise to the level of a jurisdictional error. Therefore, the appeal was dismissed, and Ms Han was ordered to pay the Minister's costs.

Orders

Orders of the court

1. The appellant be refused leave to rely upon the sole proposed ground of appeal contained in the draft amended notice of appeal annexed to her submissions dated 30 January 2019.

2. The appeal be dismissed.

3. The appellant pay the first respondent’s costs as assessed or agreed.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It follows that had leave been granted to rely upon the proposed ground of appeal, that ground would have failed on the merits. That point was not in fact reached, and these observations would be mere obiter, save for the fact that they provide an additional reason as to why leave should not be granted. I therefore take that conclusion into account in confirming that leave should be refused.Conclusion Leave to rely upon the sole ground of appeal sought to be advanced must be refused. The appeal must therefore be dismissed. There is no reason why Ms Han should not pay the Minister’s costs.

Ratio Decidendi

Legal Principle Established

The Minister submits that the mere fact that the MOC formed a different opinion on the ultimate issue to that of Professor Strasser did not disclose that the MOC did not form the necessary opinion according to law.Consideration The substance of the issue that the proposed ground of appeal raises for determination was conveniently stated in an overall sense by Judge Smith in Haque, when his Honour was still sitting on the Federal Circuit Court (prior to being appointed to the District Court of New South Wales). His Honour said (by way of introduction at [1]):Ordinarily, in determining whether or not to grant a visa, the Minister must determine whether he or she is satisfied that the visa applicant has satisfied the criteria for the grant of that visa. The same requirement is imposed on the second respondent (Tribunal) when reviewing a decision to refuse to grant a visa. However, there are certain subclasses of visa the criteria for which require the decision-maker not to form his or her own opinion of a particular matter, but rather, to take the opinion of a third party to be correct. In those circumstances, the decision-maker is only required to accept as correct an opinion that is properly formed and on the condition that the visa applicant has had the opportunity to address the question of whether the opinion meets that description. In Haque, the identified errors, rising to the level of being jurisdictional errors, were confusion between two opinions on the part of the Tribunal, a significant mistake of fact in the second opinion, and a refusal to give the visa applicant time within which to address that second opinion because it misunderstood the nature of the mistake being complained about. It was not confined to questions of expression, or adequacy of reasons in addressing conflicting evidence. It went in a foundational way to the required assessment of cost based upon a hypothetical person requiring treatment for a like condition, because the nature of that condition was incorrectly described, tainting the necessary hypothetical assessment in a jurisdictional way because, in effect, the wrong question was being asked. The nature of the error in Haque thus went beyond the nature of the error asserted by Ms Han. Ms Han seeks to draw adverse and non-beneficial inferences from what was not said in favour of reaching a different factual conclusion. Properly understood, Ms Han is in truth asserting error on the merits, not error in the performance of the jurisdictional task. Put another way, the errors in Haque were overt and went to the identification of the form and level of the condition against which the cost assessment was required to be made, on a hypothetical basis. The wrong benchmark was being deployed due to that error, such that the jurisdictional task could not be performed. There was no evidence, not merely conflicting evidence, that, as stated by the MOC, the autistic child in question needing medical and community services was “totally dependent in all of her activities of daily living”. In fact, there was clear evidence to the contrary. Before turning to the passages already quoted above at [49(2)], which are relied upon by Ms Han, Judge Smith stated (at [51]):I accept that medical opinion such as that of the RMOC should not be read in a nitpicking way. However, even though a document such as the RMOC opinion should be given a beneficial reading, that does not mean that the Court has power to rewrite it so that it accords with the evidence that was before the RMOC. To do so, would be overstepping the boundaries placed upon the power of the Court upon judicial review. On that approach, even though this opinion is expressed briefly, it is set out in plain terms and there is no room to find that the phrase in question means anything other than what it actually says. Thus, in my view, the RMOC gave an opinion based upon the fact that the second applicant was totally dependent in all her activities of daily living and that fact was, quite simply, wrong on any view of the material. The question then, is whether this means that there was any jurisdictional error in the Tribunal’s decision.