FEDERAL CIRCUIT COURT OF AUSTRALIA
| ISLAM & ORS v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2210 |
| Catchwords: STATUTORY INTERPRETATION – Power to make regulations – specific regulation making power – whether regulation requiring administrative decision-maker to accept medical officer’s opinion as correct is valid. |
| Legislation: Acts Interpretation Act 1901 (Cth), ss.19, 19A, 19B Legislative Instruments Act2003 (Cth), ss.5, 13(1) and (2) Migration Act 1958 (Cth), Part 5, Division 5, ss.29, 65, 348(1), 349(1), 359(1), 359A, 363(1), 476, 504, 505 Migration Laws Amendment Bill (No. 2) 1992 (Cth) |
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Details
- Case
- [2015] FCCA 2210
- Decision Date
CaseChat Overview and Summary
The applicant, Islam, sought judicial review of a decision by the Minister for Immigration concerning a Skilled (Residence) (Class VB) visa. The core of the dispute revolved around the validity and application of a regulation that required an administrative decision-maker to treat the opinion of a Medical Officer of the Commonwealth as correct when assessing whether an applicant met certain visa criteria. The matter came before Judge Antoni Lucev of the Federal Court of Australia.
The legal issues before the Court were whether Regulation 2.25A(3) of the Migration Regulations was a valid exercise of the power conferred by section 505 of the Migration Act, and whether this regulation, which mandated that a Medical Officer's opinion be taken as correct, bound not only the initial decision-maker but also the Migration Review Tribunal when it reviewed the delegate's decision. The applicant also contended that the Tribunal failed to conduct a proper, genuine, or realistic inquiry and did not take into account relevant considerations, thereby committing jurisdictional error.
The Court found that section 505 of the Migration Act specifically empowers the Minister to make regulations requiring that opinions from specified third persons, such as a Medical Officer, be either had regard to or treated as correct for the purposes of assessing visa criteria. The Court held that Regulation 2.25A(3), by providing that the opinion of the Medical Officer is to be taken as correct, was a valid use of the power under section 505(b)(ii) and did not exceed the regulation-making power. Furthermore, drawing on the Full Court of the Federal Court's decisions in *Maman* and *Blair*, the Court determined that the Tribunal was also bound by Regulation 2.25A(3) to treat the Medical Officer's opinion as correct, just as the delegate was. This interpretation meant that the Tribunal could not obtain a further opinion or disregard the existing one, even if it conflicted with other medical evidence.
Consequently, the Court concluded that the applicant's argument that the Tribunal ought to have had regard to other medical opinions was without merit, as the regulation specifically directed that the Medical Officer's opinion be taken as correct. The Court's reasoning, based on the statutory interpretation of section 505 and established case law, disposed of the applicant's primary grounds for judicial review.
The legal issues before the Court were whether Regulation 2.25A(3) of the Migration Regulations was a valid exercise of the power conferred by section 505 of the Migration Act, and whether this regulation, which mandated that a Medical Officer's opinion be taken as correct, bound not only the initial decision-maker but also the Migration Review Tribunal when it reviewed the delegate's decision. The applicant also contended that the Tribunal failed to conduct a proper, genuine, or realistic inquiry and did not take into account relevant considerations, thereby committing jurisdictional error.
The Court found that section 505 of the Migration Act specifically empowers the Minister to make regulations requiring that opinions from specified third persons, such as a Medical Officer, be either had regard to or treated as correct for the purposes of assessing visa criteria. The Court held that Regulation 2.25A(3), by providing that the opinion of the Medical Officer is to be taken as correct, was a valid use of the power under section 505(b)(ii) and did not exceed the regulation-making power. Furthermore, drawing on the Full Court of the Federal Court's decisions in *Maman* and *Blair*, the Court determined that the Tribunal was also bound by Regulation 2.25A(3) to treat the Medical Officer's opinion as correct, just as the delegate was. This interpretation meant that the Tribunal could not obtain a further opinion or disregard the existing one, even if it conflicted with other medical evidence.
Consequently, the Court concluded that the applicant's argument that the Tribunal ought to have had regard to other medical opinions was without merit, as the regulation specifically directed that the Medical Officer's opinion be taken as correct. The Court's reasoning, based on the statutory interpretation of section 505 and established case law, disposed of the applicant's primary grounds for judicial review.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
The Explanatory Memorandum to the Migration Laws Amendment Bill (No. 2) 1992 (Cth) which introduced the predecessor of what is now s.505 of the Migration Act provided as follows at page 3:Part 4 also inserts a new power to make regulations concerning the use in the decision making process of certain opinions, findings, assessments or decisions by specified third persons or agencies.(Underlining added). Section 505 of the Migration Act represents the Commonwealth Parliament’s specific enactment of a specific power invested in the Minister to make regulations which specifically provide:a)that the question of whether particular criteria are met in relation to a visa may be answered by an opinion obtained from a person (such as an MOC); and b)for:i)having regard to that opinion; orii)treating that opinion as correct,for the purposes of the application of the relevant criteria in relation to the visa. The manner in which s.505 of the Migration Act now provides for “the use in the decision making process of certain opinions” is twofold: that is, firstly that regard may be had to them, or secondly that they may be taken to be correct. Section 505 distinguishes between these two options by the use of “or” between placitas (i) and (ii) of paragraph (b), and makes it apparent that in framing a regulation it is lawful to utilise the power vested by one of the alternatives alone. This is what has been done in making reg.2.25A(3) of the Migration Regulations, which is a use of the power in s.505(b)(ii) to provide for an opinion to be taken to be correct for the purposes of whether an applicant satisfies a visa criterion. The making of reg.2.25A does not therefore exceed the regulation-making power under s.505 of the Migration Act: Tanner. Section 505(b) of the Migration Act distinguishes between the power to make regulations which have regard for an opinion and the power to make regulations which provide for an opinion to be taken to be correct. This is sufficient to dispose of the applicants’ argument that the Tribunal therefore ought to have had regard to other medical and allied health opinion. The Court is therefore of the view that it was within power for reg.2.25A(3) of the Migration Regulations to be made providing that: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. A further question raised by the applicant is whether reg.2.25A(3) of the Migration Regulations binds only the Minister (in context the Delegate) and not the Tribunal. For this Court that question has been answered by the Full Court of the Federal Court in Maman and the Federal Court in Blair. In Maman the majority of the Full Court of the Federal Court observed as follows:22. The potential utility of any “review” does not assist in resolving the question whether the Tribunal can or should itself get a further opinion. The utility in a visa applicant seeking “review” in circumstances where the Minister has obtained an adverse opinion may be limited. The Minister and the Tribunal are equally bound to treat the opinion as “correct”. Senior Counsel for the Minister could not assist in identifying what could usefully be said by such a visa applicant to persuade the Tribunal to set aside the delegate’s decision. Even if the Tribunal were required to obtain a further opinion, any further opinion would also have to be taken to be “correct”. The prospect of two conflicting opinions could not be discounted. A legislative regime may seem open to question if it merely encouraged unsuccessful applicants to seek review on the chance that a subsequent opinion may be more favourable. Maman at [22] per Flick and Foster JJ (underlining added).The minority justice made it clear that, following the reasoning in Applicant VEAL of 2002 vMinister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88; 222 ALR 411; (2005) 80 ALJR 228; (2005) 87 ALD 512 at [9] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ, s.349(1) of the Migration Act would bind the Tribunal to take as correct the independent expert’s opinion: Maman at [87] per Katzmann J.
Ratio Decidendi
Legal Principle Established
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