Haque v Minister for Immigration
[2015] FCCA 1765
•2 July 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HAQUE & ORS v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1765 |
| Catchwords: ADMINISTRATIVE LAW – Migration Review Tribunal – whether the Tribunal acted unreasonably in the manner and conduct of review – whether the Tribunal erred in relying on a medical opinion that did not conform to legislative requirements – whether the Tribunal failed to comply with the requirements of section 360 of the Migration Act 1958 – Tribunal’s decision affected by jurisdictional error – Tribunal erred by taking as correct a decision based on a serious mistake of fact – jurisdictional error in refusing the applicants’ request for an adjournment – writs issued. |
| Legislation: Migration Act 1958 (Cth), ss.359A, 359C, 360, 363A Migration Regulations 1994 (Cth), reg.2.25A, cl.886.227 of sch.2, cl.4005 of sch.4 |
| Blair v Minister for Immigration & Multicultural Affairs [2001] FCA 1014 Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413 House v R (1936) 55 CLR 499 Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 Minister for Immigration & Citizenship v SabaBros Tiling Pty Ltd (2011) 194 FCR 11 Minister for Immigration & Citizenship v SZKTI (2008) 238 CLR 489 Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99 Re Minister for Immigration & Multicultural Affairs; ex parte Applicant S20/2002 (2003) 77 ALJR 1165 Sok v Minister for Immigration & Citizenship (2008) 238 CLR 251 |
| First Applicant: | NASRIN HAQUE |
| Second Applicant: | SUMAYA SARAH BHUIYAN |
| Third Applicant: | SAKIR SIMON BHUIYAN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 323 of 2015 |
| Judgment of: | Judge Smith |
| Hearing date: | 2 June 2015 |
| Date of Last Submission: | 2 June 2015 |
| Delivered at: | Sydney |
| Delivered on: | 2 July 2015 |
REPRESENTATION
| Solicitor for the Applicants: | Mr M. Jones, Parish Patience Immigration Lawyers |
| Counsel for the First Respondent: | Mr T. Reilly |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
A writ of certiorari issue directed to the Migration Review Tribunal (“Tribunal”) quashing the decision of the Tribunal dated 15 January 2015.
A writ of mandamus issue directed to the Tribunal requiring it to determine the application made to it for review of the decision of a delegate of the first respondent dated 1 May 2014.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 323 of 2015
| NASRIN HAQUE |
First Applicant
| SUMAYA SARAH BHUIYAN |
Second Applicant
| SAKIR SIMON BHUIYAN |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As Corrected)
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.
This case involves one of those subclasses of visa. Here, the decision-maker was required to accept as correct the opinion of the Medical Officer of the Commonwealth (“MOC”). There were in fact two opinions of the MOC. As will be seen, the Tribunal’s reasons reveal some confusion between the two reports. Further, the second report, was based on a significant mistake of fact. Finally, the Tribunal refused to give the first applicant time within which to address the second opinion because it misunderstood the first applicant’s complaint about that mistake of fact. Each of those reasons infected the Tribunal’s decision with jurisdictional error and, as a consequence, its decision must be set aside and the Tribunal must determine the review of the delegate’s decision according to law.
Background
The applicants are citizens of Hungary. The first applicant (“applicant”) is the mother of the second and third applicants. On 24 June 2010 the applicant lodged an application for a Skilled Sponsored subclass 886 visa. The second and third applicants were included in that application as dependents of the first applicant.
The criteria for the visa for which the application was made were contained in cl.886 in sch.2 of the Migration Regulations 1994 (“Regulations”). At the time the applicants made their visa application cl.886.227 required that, at the time of the decision:
Each person who is a member of the family unit of the applicant, and who is also an applicant for a Subclass 886 visa, is a person who:
(d)satisfies public interest criteria 4001, 4002, 4003, 4004, 4005 and 4010; and …
Public interest criterion 4005 (“PIC 4005”) is contained in sch.4 to the Regulations. It relevantly provides that:
(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
…
(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.
(2) For subparagraph (1)(c)(i), the period is:
(a)for an application for a permanent visa-the period commencing when the application is made; or
(b)for an application for a temporary visa:
(i) the period for which the Minister intends to grant the visa; or
(ii) if the visa is of a subclass specified by the Minister in an instrument in writing for this subparagraph—the period commencing when the application is made.
(3) If:
(a)the applicant applies for a temporary visa; and
(b)the subclass being applied for is not specified by the Minister in an instrument in writing made for subparagraph (2)(b)(ii);
the reference in sub‑subparagraph (1)(c)(ii)(A) to health care and community services does not include the health care and community services specified by the Minister in an instrument in writing made for this subclause.
Regulation 2.25A of the Regulations relevantly provided:
2.25A Referral to Medical Officers of the Commonwealth
(1)In determining whether an applicant satisfies the criteria for the grant of a visa, the Minister must seek the opinion of a Medical Officer of the Commonwealth on whether a person (whether the applicant or another person) meets the requirements of paragraph 4005(1)(a), 4005(1)(b), 4005(1)(c), 4006A(1)(a), 4006A(1)(b), 4006A(1)(c), 4007(1)(a), 4007(1)(b) or 4007(1)(c) of Schedule 4 unless:
(a)the application is for a temporary visa and there is no information known to Immigration (either through the application or otherwise) to the effect that the person may not meet any of those requirements; or
(b)the application is for a permanent visa that is made from a country (whether Australia or a foreign country) specified in a legislative instrument made by the Minister for the purposes of this paragraph and there is no information known to Immigration (either through the application or otherwise) to the effect that the person may not meet any of those requirements.
…
(3)The Minister is to take the opinion of the Medical Officer of the Commonwealth on a matter referred to in subregulation (1) or (2) to be correct for the purposes of deciding whether a person meets a requirement or satisfies a criterion.
On 23 May 2013, a delegate of the first respondent (“Minister”) wrote to the applicants, stating, amongst other things, that the applicants were required to undergo health assessments by an approved panel doctor to determine whether they met the health requirements for the visa. Relevantly, the second applicant attended an assessment with a panel doctor on 18 June 2013. On that date a form entitled “Form 26 Medical examination for an Australian visa” was completed by both the first applicant and the panel doctor. In the Form, the first applicant, on behalf of the second applicant, checked the “Yes” box against the question “Do you have a physical or intellectual disability that makes it difficult for you to function (for example, to move around or learn) or to work full-time”. The answer was elaborated on in handwriting: “Language delay. Learning difficulties”.
On 18 June 2013, the panel doctor wrote to the second applicant’s treating doctor stating: “Before I can make a recommendation to DIAC, a current assessment and report will be required from a paediatrician”. On 9 August 2013, a MOC wrote to the Department of Immigration indicating that the second applicant’s health assessment had been deferred pending a report from a specialist paediatrician and/or a clinical psychologist.
The second applicant’s treating paediatrician, Dr Hong, compiled a written medical report on 30 September 2013. In that report, Dr Hong included the following summary:
In summary, [the second applicant] is a 12-year-old girl who suffers from autistic spectrum disorder with moderate developmental delay and behavioural problem. She is functioning fairly well and attending to all her personal hygienes and activities of daily living. However, she still requires supervision and is not safe to be left alone by herself.
(Emphasis added)
On 7 November 2013 the MOC gave the following opinion about the second applicant:
The applicant does not satisfy sub-subparagraph PIC 4005(1)(c)(ii)(A) in Schedule 4 to the Migration Regulations.
The applicant is a 12-year old person with:
- Moderate-to-Severe developmental delay
Moderate to severe autistic spectrum disorder with significant developmental delay. This condition is likely to be Stable.
I consider that a hypothetical person with this disease or condition, at the same severity as the applicant, would be likely to require health care or community services during the period specified above.
…
In preparing this opinion, I have had regard to the information to date concerning the applicant, including, but not limited to Form 26 Report from Dr Peter Hong dated 30/9/2013.
By letter dated 9 January 2014 the applicant was sent a copy of the MOC report for comment. Although the applicant requested, and obtained, an extension of time within which to respond to that invitation, no response was provided to it. In light of that, the delegate made a decision on 1 May 2014. The delegate accepted as correct the MOC opinion and for that reason found that the applicants did not satisfy the criteria for the grant of the visa. The applicants subsequently applied to the Tribunal for review of that decision.
The applicants were invited by the Tribunal to attend a hearing to be held on 23 July 2014. The applicant attended that hearing and in the meantime provided the Tribunal with a number of documents including a report from a consultant paediatrician, Dr Shanker, dated 30 June 2014. The report concluded that a cognitive assessment would help determine the level of the second applicant’s functioning.
After the hearing, the Tribunal offered the applicant an opportunity to obtain another MOC opinion, stipulating that the request had to be made by 14 August 2014. The applicant sent the Tribunal a report from another paediatrician, Dr Parle, who noted that it was difficult for her to make a diagnosis let alone prognosis without further information and so requested time to obtain such information from the school attended by the second applicant. The applicant attended the Tribunal in person and asked for a further month to obtain medical reports on the basis of Dr Parle’s request. The Tribunal agreed to grant an extension until 15 September 2014.
On 15 September 2014 the applicant wrote to the Tribunal explaining what she had done in order to obtain medical reports and requested a further extension of time. The Tribunal granted another extension until 17 October 2014. However, on 16 October 2014 the applicants’ representative called the Tribunal requesting a further extension, explaining that the second applicant was undertaking counselling sessions in order for the paediatrician to be able to provide her report and that the counselling sessions had not yet been completed. An extension was also sought in writing accompanied by a brief report from a consultant paediatrician, Dr Iskander, to the effect that the second applicant had a mental age of a six-year-old child but was otherwise well physically and with no need for substantial medical intervention.
The Tribunal granted an extension until 15 November 2014. On 14 November 2014 the applicants’ representative sent the Tribunal a psychological evaluation prepared by an educational and developmental psychologist, Patrick Bruneau. This report was, to some extent, inconsistent with that of Dr Iskander. It included the opinion that the second applicant required full-time supervision and was not capable of participating in mainstream schooling and required ongoing support and physical assistance.
On 20 November 2014, after a request from the applicant, the Tribunal requested a further MOC opinion. Amongst the documents sent to the MOC for that purpose were the reports from Mr Bruneau, Dr Iskander, Dr Parle, Dr Shanker, and the first MOC report together with the report of Dr Hong. A further MOC opinion (“RMOC opinion”) was given on 2 December 2014. That opinion included the following:
… The applicant does not satisfy sub-subparagraph PIC 4005(1)(c)(ii)(A) in Schedule 4 to the Migration Regulations.
The applicant is a 13-year-old person with:
• Severe cognitive impairment
Form and Severity of the applicant’s condition: the applicant has severe cognitive impairment due to Autistic Spectrum Disorder and is totally dependent in all of her activities of daily living. Provision of services to a hypothetical person with the applicant’s condition: a hypothetical person with this condition, at the same severity as the applicant, would be likely to require long term community support services. This condition is likely to be Stable.
…
In preparing this opinion, I have had regard to the information available to date concerning the applicant, including, but not limited to the reports provided by the Panel Physician dated 18 June 2013 and by Dr Peter Hong dated 30 September 2013. This opinion is provided following reports provided by Dr Julie Parle dated 12 August 2014, Dr Mary Iskander dated 14 November 2014 and Mr Patrick N. Bruneau dated 13 November 2014. These reports have been received following the opinion of 7 November 2013. The previous opinion should be disregard for the purposes of visa decision, as this opinion is based on the most up to date information provided.
(Emphasis added)
On 4 December 2014 the Tribunal wrote to the applicants’ representative providing them with particulars of information that it considered would be the reason or part of the reason for its decision and inviting their response. The information in question was the RMOC opinion. The letter indicated that the response was required to be received by 29 December 2014 unless extended pursuant to a request made before that date. On 10 December 2014 the applicant called the Tribunal as, although her representative had received the letter, she had not yet received a copy of it. She was told that the response to the letter was due on 2 January 2015 (which, I infer, was the date mentioned in the letter adjusted to take into account the days on which the Tribunal’s registry was closed during that period).
On 2 January 2015 an officer of the Tribunal telephoned the applicant to “inform her that the due date to respond to the letter from the Tribunal is 2/1/2015 and the member will proceed to a decision on her case next week.”
On 4 January 2015 the representative emailed the Tribunal indicating that the applicant disagreed with the assessment in the RMOC opinion and, in particular, that the second applicant did not need total supervision and that she “is very capable to do her basic daily activity, without – or a minimal supervision!” The email requested further time in order to get a specialist opinion to “prove her daughter’s condition”.
On 14 January 2015 the applicant emailed the Tribunal asking it to remove her representative and saying:
…
As you mentioned that if I want to submit any document should be submitted by 15th of this month. Unfortunately I didn’t get any booking by this time. It will take a few more weeks to see the specialist. According to RMOC my daugher (sic) is totally dependent in her all activities of daily living. But she is not. So I would like to take further opinion.
On 15 January 2015 an officer of the Tribunal telephoned the applicant in response to that email to say that the member did not intend to pursue another MOC opinion and that it would be proceeding to make her decision on that day. True to that indication, the Tribunal made its decision on 15 January 2015 affirming the decision of the delegate to refuse to grant the applicants a visa.
Tribunal’s decision
The Tribunal found that the second applicant was a dependent child of the first applicant and a member of her family unit. For that reason it found that the second applicant had to meet the health requirements in PIC 4005 for the purpose of cl.886.227.
The Tribunal then purported to set out the RMOC opinion, although it may be noted that, in fact, it set out an extract from the MOC report. The consequence of this is considered further below.
The Tribunal then stated:
[13]The review applicant requested the Tribunal to obtain a further medical opinion and to provide additional medical evidence relating to her daughter’s condition for the purpose of such an opinion. The Tribunal has considered the request but determined not to pursue another opinion. The Tribunal is mindful that two opinions have been obtained in the past 12 months and there is nothing to suggest that the child’s condition had significantly changed from the time the most recent opinion was obtained. The applicant has not established that the RMOC opinion was invalid or incorrect or based on incorrect information. Rather, her dispute is with the outcome. In such circumstances, the Tribunal has decided not to arrange another MOC opinion.
(Emphasis added)
The Tribunal then considered the MOC opinion, not the RMOC opinion, and, having found that it applied the correct test in forming the opinion, accepted it to be correct and so concluded that the applicants did not satisfy the criteria for the grant of the visa.
Consideration
The applicants raised three grounds in these proceedings: first, that the Tribunal acted unreasonably in the manner and conduct of the review in that it refused the applicant an opportunity to provide further medical evidence; secondly, the Tribunal erred in relying on a medical opinion that did not conform with the requirements of the legislation because that opinion did not accurately specify the period of time to which it referred; and thirdly, the Tribunal failed to comply with s.360 of the Act. It is convenient to deal with the second and third grounds first and then to return to the first ground.
Ground 2
As noted above, the Tribunal is required to accept as correct the opinion of the MOC as to whether each of the applicants satisfied the criterion in PIC 4005 in sch.4 to the Regulations. One of the questions in PIC 4005 is whether the relevant person is free from a disease or condition in relation to which a person who has it would be likely to require healthcare or community services during the period described in sub-cl.(2): sub-cl.4005(1)(c)(i)(A). Subclause (2) relevantly provides that the period for an application for a permanent visa is “the period commencing when the application is made”.
In both the MOC and RMOC opinions the relevant period was dealt with as follows:
The applicant has been assessed against Public Interest Criterion (PIC) 4005 [see attached extract] for the period of a permanent stay in Australia.
…
I consider that a hypothetical person with this disease or condition, at the same severity as the applicant, would be likely to require healthcare or community services during the period specified above.
The applicants argue that in order to assess the needs a person might have during a period commencing at a certain time, one must consider the likely duration of that period. This, in turn, requires at least an assessment of the likely life expectancy of the person with the relevant condition. They argue that no such assessment was made in these opinions. The Minister argued that the MOC is not required to expressly form an opinion on the life expectancy of an applicant in every case. He argued that here, the MOC (meaning, I infer, the RMOC) noted that the second applicant was 13 years-old and that her condition was likely to be stable. Thus, the opinion that a person with that condition would be likely to require health or community services during the period of a permanent stay in Australia complied with the statutory requirement.
I accept the Minister’s submissions in respect of this argument. It may be that the conditions suffered by an applicant are likely to resolve within a short time so that it is necessary to determine with some accuracy the relevant period for the purposes of PIC 4005. Here however, the relevant condition was assessed as permanent and stable. Further, the RMOC gave the opinion that a person with that condition would be “likely to require long-term community support services”. Those factors taken together suggest that the opinion was that the person with that condition would require the relevant services for their entire life.
For those reasons, I reject the second ground.
Ground 3
The third ground is that the Tribunal breached s.360 of the Migration Act 1958. That section provides:
360 Tribunal must invite applicant to appear
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a)the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c)subsection 359C(1) or (2) applies to the applicant.
(3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
This ground is based upon the assertion that one of the issues that arises in relation to the decision under review is whether or not an opinion of the MOC is one formed according to the requirements of the legislation. The Minister argued that there was no obligation in this case for two reasons: first, that the underlying assertion was incorrect and that the RMOC opinion did not raise any new issue but was only additional evidence about an extant issue before the Tribunal, namely whether the second applicant satisfied PIC 4005; and secondly, that, in any event the applicants would not be entitled to a further hearing because they did not respond in time to the Tribunal’s s.359A letter. In light of that, by reason of the operation of ss.359A, 359C(2), 360(2)(c) and 363A of the Act the Tribunal did not even have the power to grant a further oral hearing: Hasran v Minister for Immigration & Citizenship (2010) 183 FCR 413 at [25] to [32].
In my view, the first of the Minister’s arguments is wrong and should be rejected. First, I note that it is inconsistent with one of the arguments raised by the Minister in the High Court in Sok v Minister for Immigration & Citizenship (2008) 238 CLR 251 at 262 [33]. Secondly, his reliance upon the decision in Minister for Immigration & Citizenship v SZKTI (2008) 238 CLR 489 and in particular the passage at 505 [51] is misplaced. The RMOC was not simply additional evidence but an entirely new opinion based upon different evidence that, if formed according to the requirements of the legislation, the Tribunal was required to accept as correct. The document containing the opinion might have been evidence but what was important and raised the relevant issue for the purposes of s.360 of the Act was the opinion itself.
However, the Minister’s second argument is correct and the third ground should be rejected. Section 359A(1) of the Act relevantly requires the Tribunal to give to the applicant clear particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision that is under review. Section 359B(2) provides that where an invitation is given under s.359A the comments on or response to the information must be given within the period specified in the invitation.
The consequence of the failure to respond or comment within the specified period is provided by s.359C(2), namely that the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on information. Further, s.360(3) provides that if the applicant has not responded or commented within the specified period then he or she is not entitled to appear before the Tribunal. Section 363A further provides that:
If a provision of this Part states that a person is not entitled to do something, or to be assisted or represented by another person, then, unless a provision expressly provides otherwise, the Tribunal does not have power to permit the person to do that thing, or to be assisted or represented by another person.
The applicant argued that the Tribunal was not prevented from providing a further oral hearing because she had in fact responded to the s.359A letter. In this respect, she relied upon the following passage in Minister for Immigration & Citizenship v SabaBros Tiling Pty Ltd (2011) 194 FCR 11 at 18 [32]:
Nothing in the context of or purpose underlying the relevant provisions indicates that the word “respond” should be given other than its ordinary and natural meaning of “to answer” or “to reply”. As Saba Bros submitted, the option of responding to (as opposed to commenting on) information under s.359A was inserted into the Migration Act by the Migration Amendment (Review Provisions) Act 2007 (Cth). If, as the Minister contended, a “response” requires an applicant expressly to state a position in relation to the information, the distinction between comment and response introduced by Parliament in 2007 would be rendered redundant.
The response relied upon by the applicant was an email from her to the NSW Skilled Visa Team of the Tribunal dated 2 January 2015. In that email the applicant wrote (formalities omitted):
Could please the copy of report from RMOC.
Thank you
I accept that that is a response to the Tribunal’s letter. However that is not what is required by the Act in order for the right to a hearing to remain alive. What is required is a comment on or response to the “information” in the letter. Thus, it is not sufficient simply to respond to the letter by asking for a copy of the RMOC report.
The applicant accepted that the Tribunal had complied with the formal requirements of s.359A and that there had been no extension of the relevant period from 2 January 2015. The second of those concessions was made in spite of an email written by the applicant on 14 January 2015 in which she said: “As you mentioned that if I want to submit any document should be submitted by 15th of this month.” It could have been inferred from that statement that the period had in fact been extended and, further, if that had been the case, there is little doubt that s.359C(2) would not have applied to the applicant and so there would have remained an obligation to provide a hearing pursuant to s.360. However, that argument was not pursued by the applicant and I leave it to one side.
As the applicant had not responded to or commented upon the information in the Tribunal’s s.359A letter within the time required, the Tribunal was under no obligation to invite the applicant to a further hearing and for that reason the third ground must be rejected.
Ground 1
Before turning to consider the first ground raised by the applicant it is necessary to consider the RMOC opinion and in particular one of the factual bases given for it. This, as emphasised above, is that the second applicant was “totally dependent in all of her activities of daily living”. In arriving at the opinion relied upon by the Tribunal, the RMOC did not personally examine second applicant. Rather, he or she based the opinion on information “available to date concerning the applicant including, but not limited to reports provided by the Panel Physician dated 18 June 2013 and by Dr Peter Hong dated 30 September 2013 as well as the reports of Dr Parle dated 12 August 2014, Dr Iskander dated 14 November 2014 and Mr Bruneau dated 13 November 2014.”
Nowhere in any of that material was there evidence that could support the statement that the second applicant was totally dependent in all of her activities of daily living.
The report provided by the Panel Physician dated 18 June 2013 noted that the physical or intellectual disability that made it difficult for the second applicant to function was language delay and learning difficulties and further noted that she was able to address/undress by herself.
Doctor Hong, who had been looking after the second applicant for three years at the time he wrote his report, noted that the second applicant was eating and drinking well and feeding herself and that she was attending to her own personal hygiene and has no incontinence. He said also that she is able to brush her teeth and comb her hair and dress up. He concluded that she was “functioning fairly well and attending to all her personal hygienes (sic) and activities of daily living.”
Doctor Shanker (whose report was given to the RMOC but not expressly mentioned in the opinion) reported that the second applicant had started her menstruation in February 2014 and was managing that quite well by herself.
Doctor Iskander wrote that the second applicant was independent in day to day activities within the home environment and that she was able to shower and dress herself and make simple meals if needed.
Doctor Parle wrote that she was advised that the second applicant was independent with daily activities, e.g., toileting, dressing, choosing her own clothing and undertaking age appropriate cooking such as making a sandwich, using the microwave or making a cup of tea.
Mr Bruneau referred to a 2009 psychological assessment which noted that, while the second applicant had presented with limited performance across a range of key competencies and behaviours, her personal living skills were her best. He further noted from his own observations that she was able to demonstrate some self-care (toileting) behaviours although no other behaviours in personal care were observed.
The Minister argued that the opinion should not be read literally and that, in any event, even if there were some mistake of fact in the opinion that would mean that the Tribunal’s decision was affected by jurisdictional error.
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.
The Minister’s argument relied upon obiter dicta in a decision by Carr J in Blair v Minister for Immigration & Multicultural Affairs [2001] FCA 1014 at [33]. There, his Honour said:
… Even if the medical and other evidence were (contrary to my view) totally inconsistent with the Opinion, I do not think that would demonstrate “jurisdictional” or other legal error. The Regulations require the respondent to seek the Opinion of a Medical Officer of the Commonwealth. Such Medical Officer must surely be entitled (and in my view is required) to form his or her own opinion, even if it conflicts with the medical evidence submitted on behalf of an applicant.
That passage however does not deal with the present issue. I accept that the RMOC, like the MOC beforehand, was required to form his or her own opinion about whether or not PIC 4005 was satisfied. That is the effect of the Regulations. However, that opinion, like any opinion, in order to be valid in the sense of legally effective, must be based upon material including facts based upon material which are logically probative of that opinion. It must be the case, as the RMOC is exercising statutory power, that he or she is required to act reasonably. That requirement in turn necessitates that there be a logical basis for the opinion. As was the case here, the opinion was based upon a fact for which there was no evidence or any other logical basis, and that opinion was not one formed according to law. That being so, the Tribunal was not bound to accept it and, because it considered that it was bound to accept it, it failed to properly exercise its jurisdiction and thereby fell into jurisdictional error.
It may be noted that the applicant was aware of this flaw in the opinion. As noted above, her basic complaint about the opinion was that her daughter was “very capable to do her basic daily activity, without – or a minimal supervision!” However, the Tribunal misunderstood what the applicant was saying. In explaining why it refused the applicant’s request for further time to obtain material for the purpose of the review, the Tribunal said:
The applicant has not established that the RMOC opinion was invalid or incorrect or based on incorrect information. Rather, the dispute is with the outcome.
That, with respect, was entirely incorrect. The result is that the Tribunal decided to refuse to exercise its power to adjourn the review to enable further information to be obtained on a wrong factual basis. Thus, its discretion erred. In the first ground of the application this error is described by the applicant as being one of unreasonableness. While I accept, in light of the decision in Minister for Immigration & Citizenship v Li (2013) 249 CLR 332, that that description is apt, it is not necessary for the error to be given any particular label before it can be properly described as one that goes to jurisdiction: see Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99. What is important is that the error is sufficiently serious and that it affected the exercise of jurisdiction. Further, the close relationship between judicial review of the exercise of administrative power and appellate review of the judicial exercise of discretionary power has often been noted: see for example Re Minister for Immigration & Multicultural Affairs; ex parte Applicant S20/2002 (2003) 77 ALJR 1165 [68]. In the latter case it is well-established that the decisions based upon mistaken facts may be set aside: House v R (1936) 55 CLR 499 at 505.
For those reasons, the first ground is made out and the applicants are entitled to the issue of constitutional writs.
Further matter
In light of that conclusion, it is not strictly necessary to come to a concluded view as to whether or not the Tribunal in fact addressed the correct opinion. The Minister accepted during argument that once it had sought and obtained a second opinion it was required to take that opinion as correct rather than to have regard to the first opinion. However, he argued that that is precisely what the Tribunal did. I disagree and need only briefly express my reasons for doing so.
First, although the Tribunal referred to the RMOC, it never referred to the correct date of the relevant opinion. Second, the opinion that it set out in its statement of reasons was not that of the RMOC but that of the earlier opinion of the MOC. Critically, that passage did not include the erroneous statement that the second applicant was entirely dependent in all of her activities of daily life. I infer that it is for that reason that the Tribunal did not appreciate that the applicant’s real complaint was with the correctness of that statement. In turn, the most likely scenario was that the Tribunal only had regard to the MOC opinion. That is why it concluded that the “opinion of 7 November 2013 is correct and valid”. The opinion of that date was that of the MOC, not the RMOC. Were it not for the fact that the Tribunal clearly misunderstood the applicant’s complaint I would probably have come to a different view. I would have concluded, as the Minister urged me to do, that the Tribunal’s only mistake was in its proofreading of the statement of reasons. It is easy enough to overlook the difference between opinions when they are written in the same format and probably from a template and express opinions in precisely the same terms. Indeed, it seemed that neither party, although represented by lawyers with significant experience in this field, had appreciated that the Tribunal might have been confused between the two opinions.
Conclusion
In conclusion, the Tribunal’s decision was affected by jurisdictional error because it felt bound to take as correct an opinion that was not formed according to law and further, that it acted unreasonably in refusing to allow the applicant further time to obtain material relevant to the review.
The Minister argued that even if the Tribunal’s decision were affected by error that the Court should exercise its discretion to refuse relief because it was bound to arrive at the decision that it did. That submission, however, overlooked the nature of the errors which I have found. Had, for example, the Tribunal given the applicant further time to address the issue that she saw with the RMOC opinion it was possible that the RMOC might have come to a different conclusion. If that were the case then the Tribunal would not have been obliged to affirm the decision of the delegate and so the outcome would have been different. For that reason, there is no basis upon which to refuse to grant the applicant’s constitutional relief.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 17 September 2015
CORRECTION
Reasons for Judgment: Page 12, Paragraph 32, Extract – replace the words from “Medical examination” to “an examination.” inclusive with:
Tribunal must invite applicant to appear
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a)the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c)subsection 359C(1) or (2) applies to the applicant.
(3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
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