FEDERAL COURT OF AUSTRALIA
Han v Minister for Home Affairs [2019] FCA 331
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- Case
- [2019] FCA 331
- Decision Date
CaseChat Overview and Summary
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
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.