HAN v Minster for Home Affairs
[2018] FCCA 2207
•15 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HAN v MINSTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 2207 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – alleged invalidity of PIC4005(1)(c)(ii)(A) of Schedule 4 to the Migration Regulations 1994 (Cth) which required that an applicant be “free from a disease or condition in relation to which the provision of the health care or community services would be likely to result in a significant cost to the Australian community in the areas of health care and community services” – application for a Skilled visa which required satisfaction of PIC4005(1)(c)(ii)(A) – application for judicial review of decision of Administrative Appeals Tribunal to affirm a decision of a Delegate of the Minister for Home Affairs to refuse to grant Skilled visa because the applicant did not satisfy PIC4005(1)(c)(ii)(A) – argued on behalf of applicant that PIC4005(1)(c)(ii)(A) insofar as it referred to “significant cost” was not a valid exercise of the regulation making power provided by s.505 of the Migration Act 1958 (Cth) because the measure of “significant cost” provided an arbitrary and non-objective standard – Public Interest Criterion 4005 found not to be invalid because of the use of the phrase “significant cost” – no other grounds for judicial review raised – no jurisdictional error – application for judicial review dismissed. |
| Legislation: Evidence Act 1995 (Cth), s.97 Migration Act 1958 (Cth), ss.65, 360, 505 Migration Regulations 1994 (Cth) |
| Cases cited: Blair v Minister for Immigration and Multicultural Affairs [2001] FCA 1014 | ||
| Applicant: | YUELIN HAN | |
| First Respondent: | MINSTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 51 of 2018 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 3 August 2018 |
| Delivered at: | Sydney |
| Delivered on: | 15 August 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr L. Karp of Counsel |
| Solicitors for the Applicant: | Proactive Legal |
| Counsel for the First Respondent: | Ms A. Douglas-Baker of Counsel |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
The Application filed in this Court on 8 January 2018 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 51 of 2018
| YUELIN HAN |
Applicant
And
| MINSTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this proceeding is a female citizen of China aged 34 years, having been born on 11 February 1984.
By Application filed in this Court on 8 January 2018 she seeks to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 6 December 2017 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Home Affairs (Minister), dated 4 March 2015 refusing to grant to her a Skilled (Residence) (Class VB) Skilled-Independent (Subclass 885) visa (Skilled visa).
Background
The Applicant arrived in Australia on 23 January 2007 on a Vocational Education and Training Sector (Subclass 572) visa. Her vocation in Australia has been as a pastry cook.
On 21 December 2009 the Applicant applied for the Skilled visa. Then in 2011 she became very unwell and received a liver transplant at a major Sydney hospital which was successful and she decided she would study nursing. It was common ground between the parties in this proceeding that the Applicant was required to satisfy Public Interest Criterion 4005 (PIC4005) of Sch.4 to the Migration Regulations 1994 (Cth) (Regulations) as required by cl.885.224(a) of Sch.2 to the Regulations, which provided as follows:
885.22 Criteria to be satisfied at time of decision
885.224 The applicant:
(a) satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4010 and 4020; and
(b) if the applicant had turned 18 at the time of application — satisfies public interest criterion 4019.
PIC4005(1) relevantly provided as follows:
4005(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) 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 (2); 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.
(emphasis added)
Accordingly, relevantly to this proceeding PIC4005(1)(c)(ii)(A) required that the Applicant be “free from a disease or condition in relation to which the provision of the health care or community services would be likely to result in a significant cost to the Australian community in the areas of health care and community services”.
Section 65(1)(c)(i) of the Migration Act 1958 (Cth) (the Act) provides that the Minister cannot grant a visa unless satisfied (amongst other criteria) that the health criteria for the relevant visa, as prescribed by the Act or the Regulations, have been satisfied.
Regulation 2.25A(1) of the Regulations requires that the Minister, in determining whether an applicant satisfies the criteria for the grant of a visa, seek the opinion of a Medical Officer of the Commonwealth on whether the applicant for a visa or another person meets the requirements of PIC4005. This regulation was made under s.505 of the Act which permits the Regulations to provide that the Minister, when required to decide whether an applicant for a visa of the relevant class satisfied the criterion, is to get a specified person to give an opinion on a specified matter, and is to take that opinion to be correct for the purposes of deciding whether the applicant satisfies the criterion.
Decision of the Delegate
In her Decision Record dated 4 March 2015 the Delegate refused to grant a Skilled visa to the Applicant as she had been assessed as not satisfying PIC4005 because in two separate Opinions dated respectively 22 January 2013 and 25 February 2015 a Medical Officer of the Commonwealth (MOC and MOC Opinions) had given the opinion that the medical and pharmaceutical services likely required to be provided to the Applicant as a result of her liver transplant “would be likely to result in a significant cost to the Australian community in the areas of health care and / or community services”.
Decision of the Tribunal
The Applicant applied to the Tribunal on 13 March 2015 for merits review of the Delegate’s decision. On 21 April 2016, in response to a request by the Applicant, a Review Medical Officer of the Commonwealth (RMOC) provided an Opinion (RMOC Opinion) which again stated that as a result of the asymptomatic previous liver transplant the “provision of services to a hypothetical person with the applicant’s condition would include ongoing specialist medical review and immunosuppressive medication” on a permanent basis, and that the provision of these medical and pharmaceutical services “would be likely to result in a significant cost to the Australian community in the areas of health care and / or community services”.
By its decision dated 9 May 2016 the Tribunal affirmed the Delegate’s decision under review, but on 22 May 2017 this decision of the Tribunal was set aside by consent in this Court for breach of a requirement of s.360 of the Act to invite the Applicant to a further hearing to give evidence and present arguments on the RMOC Opinion and the review application was remitted back to the Tribunal for further hearing.
On 5 December 2017 the Applicant appeared at a hearing before a differently constituted Tribunal together with her registered migration agent. The Applicant had by this time finished a Bachelor of Nursing degree. By its Decision Record dated 6 December 2017 the Tribunal again affirmed the Delegate’s decision under review not to grant to the Applicant a Skilled visa. The Tribunal referred to the unanimous view of the MOC Opinions and RMOC Opinion that the likely medical and pharmaceutical services required for the Applicant would be likely to result in a significant cost to the Australian community in the areas of health care and / or community services and that consequently the Applicant did not satisfy the requirements of PIC4005 and therefore the Tribunal affirmed the decision of the Delegate not to grant a Skilled visa to the Applicant.
Grounds of Attack on Tribunal Decision in this Court
The single Ground of attack in the Application filed in this Court is as follows:
1.Reports of Medical Officers of the Commonwealth, upon which the Tribunal relied is affirming the decision under review, were affected by jurisdictional error in that they purported to apply clause 4005(1)(c)(ii)(A) of Schedule 4 of the Migration Regulations which was invalid.
Particulars
(a) The words “significant cost to the Australia community” in that provision are incapable of objective ascertainment or calculation, and Clause 4005(1)(c)(ii)(A) of Schedule 4 of the Migration Regulations is therefore invalid
for uncertainty.At the hearing Mr Karp of Counsel appeared for the Applicant and Ms Douglas-Baker of Counsel appeared for the Minister. At Mr Karp’s request I granted leave to amend the Ground by deleting the last two words of the Particulars to it. Mr Karp also confirmed at the hearing that if his argument that PIC4005(1)(c)(ii)(A) was invalid failed, the Application filed in this Court must necessarily be dismissed, and that he did not contend that the RMOC Opinion was otherwise invalid or that the decision of the Tribunal was otherwise affected by jurisdictional error.
Mr Karp submitted that PIC4005(1)(c)(ii)(A) is not a valid exercise of the regulation making power provided by s.505 of the Act, or indeed of any other regulation making power, in that it does not guide, define or answer for a MOC or a RMOC the following matters:
a)what is a “significant cost”;
b)how does it differ from a cost which is not “significant”?;
c)how or by what method is it to be ascertained, calculated or assessed, or how, or on what basis is the relevant opinion to be formed?; or
d)how is the “significant cost” in the context of a permanent visa different from that in the context of a temporary visa? Specifically, is the cost to be estimated on an annual basis for the duration of the visa, or in some other way?
In other words, Mr Karp argues that PIC4005(1)(c)(ii)(A) is arbitrary with respect to the measure of “significant cost” in that it is entirely unrestrained by any objective standard, method of calculation or determination and is incapable of ascertainment or assessment because there is no objective standard upon which to base a finding of fact. Accordingly, it fails to meet the requirements of a valid regulation pursuant to the regulation making power provided by s.505 of the Act and is invalid, although severable from the balance of PIC4005.
At the hearing Mr Karp supported his argument by reference to the decisions of the High Court, with respect to national price-fixing regulations made during the Second World War, in King Gee Clothing v The Commonwealth (1945) 71 CLR 184 (King Gee) and Cann’s Pty Ltd v The Commonwealth (1946) 71 CLR 210 (Cann’s) and also the decision of the Full Court of the Supreme Court of New South Wales in Ex Parte Ryan; Re Bellemore (1945) 46 SR (NSW) 152 (Ryan). I will deal with these three cases below.
I note that Mr Karp properly drew to my attention the decision of Heerey J in Imad v Minister for Immigration and Multicultural Affairs [2001] FCA 1011 (Imad) which might, so he said, be regarded as against his argument, but which was distinguishable because the specific argument now put by Mr Karp was not argued before Heerey J in Imad. Further, Mr Karp submitted that Imad was wrongly decided because the opinion of the MOC is unconstrained by anything other than his or her subjective opinion and a regulation which so provides cannot possibly comply with s.505 of the Act. Nevertheless, Mr Karp accepted at the hearing that if Imad was not distinguishable I was bound by it.
In response to this argument Ms Douglas-Baker, on behalf of the Minister, contended that the phrase “significant cost to the Australian community” bears its ordinary meaning having regard to the context and legislative purpose of PIC4005. That context and purpose was the protection of the interests of the Australian community in preserving and prioritising for existing members of the Australian community public medical and community resources and the ensuring that visas to enter and stay in Australia are not issued to individuals who have medical needs which will occasion “significant cost” to the Australian community and that what constitutes “significant cost” is a matter for medical judgement, which is the opinion called for by PIC4005 and authorised by s.505 of the Act. Here PIC4005, properly construed, required the MOCs and the RMOC to take into account the category of the medical and community services to be provided (here, medical and pharmaceutical services in the nature of specialist medical review and immunosuppressive medication), the frequency with which they are to be provided (here, ongoing), and the period of time or duration for which those services would likely be required (here, on a permanent basis), and to apply the statutory criteria to determine whether or not providing those medical or community services would constitute “significant cost”.
In these circumstances, Ms Douglas-Baker submitted that it cannot be said that PIC4005 calls for an opinion based on criteria which are not ascertainable or which are, in context, otherwise imprecise or uncertain. The objective question of whether there would be a “significant cost” to the Australian community was therefore one for the MOCs in the exercise of their medical judgement having regard to criteria which are not uncertain or imprecise.
Consideration
In my view, for the reasons that follow Mr Karp’s argument fails and PIC4005(1)(c)(ii)(A) is not invalid.
First, in my view the decision in Imad is not distinguishable and I am bound to follow it. In that case the applicant was a widowed Lebanese citizen aged 72 years who suffered from severe cardiac dysfunction. The conditions of the visa for which she had applied included satisfaction of PIC4005 and pursuant to reg.2.25A(1) and (3) of the Regulations the Tribunal obtained an adverse medical opinion from an MOC which the Tribunal accepted as correct and led it to be satisfied that the applicant did not satisfy PIC4005. The applicant then sought judicial review of the decision of the Tribunal in the Federal Court of Australia and it was argued on behalf of the Applicant that PIC4005 was invalid.
Heerey J at [11] of Imad recorded the argument put to him as follows:
[11]On the hearing before me, counsel for the applicant submitted that cl 4005 was invalid because it was “incapable of meaning or application”. It imposed, he said, an impossible task and that rendered the opinion of the medical officer invalid. Thus the Tribunal had no valid opinion on which to base its decision.
However, Heerey J rejected this argument. His Honour stated at [13] – [14] as follows:
[13]In my opinion the regulation is not invalid. The criterion in cl 4005(c) requires the applicant to be not a person who has a disease or condition of a kind described in paragraphs (i) and (ii). The “person” referred to in (i) is not the applicant but a hypothetical person who suffers from the disease or condition which the applicant has. The criterion requires assessment as to whether or not a disease or condition is such that it would be likely to require health care or community services and that provision of health care or community services would result in a significant cost to the Australian community. The assessment of the likelihood of health care or community services is a qualification or characterisation of the kind of disease or condition in question, just like saying “this is a surgical procedure which usually requires general anaesthetic”. It is not a prediction of whether the particular applicant will, in fact, require health care or community services at significant cost to the Australian community. This meaning is rendered, in my view, clear beyond argument by the concluding words beginning with “regardless”.
[14]The intention behind this regulation is understandable, particularly in the light of reg 2.25A. One would expect that a medical officer would be able to assess the nature of a disease or condition and its seriousness in terms of its likely future requirement for health care. On the other hand, one would not expect a medical officer to inquire into the financial circumstances of a particular applicant or any family members or friends or other sources of financial assistance.
[15] Accepting, as I do, that cl 4005 is valid…………
At the time of the decision in Imad PIC4005 was not materially different from the text of PIC4005 under consideration in this case. The decision in Imad has found that PIC4005 is valid and I must follow it and so find similarly.
Mr Karp also relied in support of his argument on the decisions in King Gee, Cann’s and Ryan (price-regulation cases) but even if I was of the view that these cases were inconsistent with Imad I must still give effect to Imad as it is my duty to follow the subsequent decision of the Federal Court of Australia on the basis of the principle stated by Lord Simon of Glaisdale in Miliangos v George Frank (Textiles) Ltd [1976] AC 443 at 478, as follows:
It is the duty of a subordinate court to give credence and effect to the decision of the immediately higher court, notwithstanding that it may appear to conflict with the decision of a still higher court. The decision of the still higher court must be assumed to have been correctly distinguished (or otherwise interpreted) in the decision of the immediately higher court ... Any other course is not only a path to legal chaos but in effect involves a subordinate court sitting in judgment on a decision of its superior court. That is contrary to law.
However, I do not consider that the price-regulation cases are relevant to the determination of the present proceeding.
In Ryan, the price-fixing regulation under consideration was held to be invalid for uncertainty and obscurity. Jordan CJ speaking for the Full Court said in Ryan at 157 as follows:
I am unable to agree with this. Clauses 7 and 8 fix, as the maximum retail selling price for bananas, a sum which it would be impossible for a retailer to ascertain without obtaining data which it would be impossible for him to get as a matter of practical business, and, if he neglected his business in order to try to obtain them, could not be got with certainty and it provides, in unintelligible language, for the addition of cost of transport to be ascertained with no greater degree of certainty than is provided by the adverb “properly”. Clause 7 falls ludicrously short of enabling those to whom it is addressed to know the nature and extent of the legal duty which it imposes on them, and, in my opinion, is therefore invalid. I find it difficult to understand how any responsible person could have promulgated such an impractical, unintelligible jumble as a price-fixing measure…
The present case is a far cry from the position in Ryan. The word “significant” is an ordinary English word and its common understanding is “important”, “notable” or “of consequence”: see the decision of McGregor J in Willarra v McVeigh (1984) 54 ALR 65 at 108 (cited with evident approval on appeal by the Full Court of the Federal Court of Australia comprised of Toohey, Wilcox and Spender JJ in McVeigh v Willarra (1984) 6 FCR 587 at 596) and the judgment of Mortimer J in Tasmanian Aboriginal Centre Inc v Secretary, Department of Primary Industries (2016) 337 ALR 96 at 154 [240]. Further, I note that the adjective “significant” is used in the expression “significant probative value” in s.97(1)(b) of the Evidence Act 1995 (Cth) and has been given the sense of “important” or “of consequence”: IMM v R (2016) 257 CLR 300 at 314 [46] per French CJ, Kiefel, Bell and Keane JJ. There has been no suggestion in the cases which have considered s.97 that there is any uncertainty or lack of objectivity resulting from the use of the word “significant”, or to the effect that it is thereby rendered incapable of rational application.
The cases of King Gee and Cann’s were considered by the Full Court of the Federal Court of Australia in Comcare v Lilley (2013) 216 FCR 214 (Lilley). At first instance the primary judge had considered that these two cases supported the conclusion that the criteria for 5% and 10% whole of person impairment in Table 9.7 of Comcare’s Guide to the Assessment of Degree of Impairment (Guide) did not set an objective standard that could be applied with certainty and thereby created an uncertainty of result which rendered them invalid: see Lilley v Comcare (2013) 209 FCR 275. However, the Full Court comprised of Kerr, Farrell and Mortimer JJ found to the contrary and that the criteria for 5% and 10% whole of person impairment in Table 9.7 of the Guide applied objective standards and were not invalid for uncertainty. The Full Court in Lilley at 229 – 230 [64] – [65] contrasted the primary judge’s view with its own, as follows:
[64]The learned primary judge’s opinion was that Table 9.7 did not fix an objective standard for the number of stairs or characteristics of the ramp that a claimant must be unable to negotiate without the use of an external aid, and instead left the decision-maker with an unfettered power “to determine whether more than three steps will suffice, and then how many or what particular ramp must be negotiated”: Lilley v Comcare (2013) 209 FCR 275 at [40]. His Honour characterised this as an “ad hoc power” left to the decision-maker from case to case.
[65]We do not agree with his Honour that there is invalidating uncertainty in the sense set out in King Gee Clothing Company Pty Ltd v Commonwealth (1945) 71 CLR 184; Cann’s Pty Ltd v Commonwealth (1946) 71 CLR 210; Herald-Sun TV Pty Ltd v Australian Broadcasting Tribunal (1985) 156 CLR 1; Television Corporation Ltd v Commonwealth (1963) 109 CLR 59, or that the power is of an “ad hoc” kind in a way which renders it invalid.
The Full Court then proceeded in Lilley at 234 – 235 [84] – [86] to point out that King Gee and Cann’s had to be read in their own context by reference to the statutory language and the factual circumstances under consideration. The Full Court concluded at [87] as follows:
[87]The point is, uncertainty (which may often be a synonym for lack of precision) is not some kind of freestanding criterion for invalidity. Uncertainty will only invalidate because one can derive from the text, context and purpose of the statute an intention by Parliament that the power be confined in a way which requires a high level of certainty (or precision). That will not always be the case, and in our opinion it is not the case in respect of the Guide.
The fact of the matter is that the price-regulation cases dealt with the calculation and setting of specific and particular prices by way of the input of specific price integers which the relevant regulations failed to intelligibly and coherently set out and prescribe, such that no certain calculation would result. The statutory context and subject matter of the price-regulation cases have no meaningful relationship with the construction of the statutory regime established by the Act and PIC4005.
Finally, I note that in my view the validity of PIC4005(1)(c)(ii)(A) is supported by two further decisions in the Federal Court of Australia.
The first is the decision of the Full Court comprised of French J (as he then was), North and Merkel JJ in Minister for Immigration & Multicultural Affairs v Seligman (1999) 85 FCR 115 (Seligman), when the Court said of an almost identical provision (that is sub-paragraph (c)(i) of PIC4005 in the form in which it then stood) as follows at 128 [53]:
[53]The issue raised by subpars (c)(i) and (c)(ii) will also involve matters of medical judgment about the nature of the disease or condition which is identified. Whether a disease or condition has characteristics that require ongoing health care or support services for the person suffering from it is a matter of medical judgment. And in a broad sense a medical practitioner can assess whether the provisions of such health care or support services involves a significant cost. Indeed the use of the word "areas" in the collocation "areas of health care or community services" suggests a judgment about the nature of the disease or condition rather than an attempt to relate it to precise health care provisions or particular community services.
The second is the decision of Carr J in Blair v Minister for Immigration and Multicultural Affairs [2001] FCA 1014 (Blair) in which the son of the visa applicant had failed to satisfy PIC4005 because a MOC had given an Opinion that the son was a person who had a disease or condition that would be likely to result in a significant cost to the Australian community in the areas of health care or community services. One of the arguments that was put to Carr J was that the Opinion of the MOC was vitiated by legal error in that it had failed to consider, analyse, measure or explain the word “significant”. His Honour responded to this argument at [38] and [46] in the following terms:
[38] ... I do not think that this complaint has been made out either. Dr Pincus identified various matters which, in the opinion he expressed, would make Michael Courey eligible for the disability support pension on medical grounds. He made a further reference to this pension as being “long-term income support”. In my view, in those circumstances, it was open to Dr Pincus to form the view that such a pension would be at a significant cost to the Australian community. I do not think that he was obliged, to analyse, measure or explain why such a cost would be significant, nor did he err in law or fail to exercise any "jurisdiction" in reaching that opinion.
[46] The next step was for Dr Pincus to form an opinion about whether the provision of such health care or community services would be likely to result in significant cost to the Australian community in the areas of health care and community services…… The applicant submitted that by failing to quantify the cost, Dr Pincus had exercised his opinion-forming power in an arbitrary manner. In my view, that is not so. His task was to form a view whether the cost was likely to be significant. I think that Dr Pincus…… was entitled to form the opinion that the provision of… a pension would result in significant cost, without quantifying that cost.
In my view the passages from Seligman and Blair cited above support the view that the expression “significant cost” in the context of PIC4005 provides a meaningful yardstick which is not arbitrary or uncertain and does not lack objectivity in a legal sense.
Conclusion
It follows from the above reasons that the Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error and the Application filed in this Court is to be dismissed.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 15 August 2018
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