Kaur v Minister for Immigration

[2016] FCCA 2275

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2275

Catchwords:
MIGRATION – Skilled visa – review of Migration Review Tribunal (“Tribunal”) decision.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error because the exercise of the Tribunal’s discretion to proceed to a decision miscarried and because the Tribunal and the Review Medical Officer of the Commonwealth relied on an incorrect version of cl.4005 of sch.4 to the Migration Regulations 1994.

Legislation:

Migration Act 1958, ss.351, 474, 476

Migration Regulations 1994, reg.2.25A, cl.886.227 of sch.2, cl.4005 of sch.4
Migration Amendment Regulation 2012 (No.2), items 26, 29 of sch.2

Migration Amendment Regulations 2011 (No.6), reg.5, item 1 of sch.3

Migration Legislation Amendment Regulations 2011 (No.1), items 2, 3, 4, 5 and 6 of sch.4

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Robinson v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 148 FCR 182
Ramlu v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 195 FLR 203
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332

First Applicant: SATVEER KAUR

Second Applicant: GURJEET SINGH DHALIWAL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1269 of 2014

Judgment of: Judge Cameron

Hearing date: 18 August 2016

Date of Last Submission: 18 August 2016

Delivered at: Sydney

Delivered on: 2 September 2016

REPRESENTATION

Solicitors for the Applicants: Mr D. Harvey of David Harvey Law

Counsel for the First Respondent: Mr T. Reilly

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1269 of 2014

SATVEER KAUR

First Applicant

GURJEET SINGH DHALIWAL

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicants, who are citizens of India, applied for Skilled (Residence) (Class VB) subclass 886 visas on 29 December 2009.  The first applicant, Ms Kaur, was the primary visa applicant on the application whilst her husband and the second applicant, Mr Dhaliwal, was included in the application as a member of Ms Kaur’s family unit.  On 8 March 2013 a delegate of the first respondent (“Minister”) refused the applicants’ application on the basis that Mr Dhaliwal did not meet Public Interest Criterion (“PIC”) 4005 because he had a medical condition which would be likely to result in significant costs to the Australian community.  The applicants then applied to the second respondent (“Tribunal”) for a review of the delegate’s decision.  They were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court cannot rehear the applicants’ applications for visas. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Relevant legislation

1. The criteria for the grant of subclass 886 visas were found in pt.886 of sch.2 to the Migration Regulations 1994 (“Regulations”). Part 886 was omitted from the Regulations on 1 July 2013 but it continued to apply to visa applications made before that date: items 26 and 29 of sch.2 to the Migration Amendment Regulation 2012 (No.2). 

2. One of the criteria which the applicants had to satisfy at the time a decision was made on their application was cl.886.227. At all relevant times it required each member of the family unit of a primary applicant included in the visa application to satisfy PIC 4005. At the time of the delegate and Tribunal decisions PIC 4005, which is found in sch.4 to the Regulations, relevantly provided:

   (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)…

   (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; ...

   ...

3. At all material times reg.2.25A of the Regulations relevantly provided:

   2.25AReferral 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) ...

   ...

   (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.

Background facts

Visa application

1. As already noted, the applicants lodged their application on 29 December 2009.  In order to satisfy the health requirements for the visas they sought, the applicants underwent medical examinations.  On 2 August 2012 a Medical Officer of the Commonwealth (“MOC”) expressed the opinion that Mr Dhaliwal did not meet the health requirements for the grant of a subclass 886 visa found in PIC 4005(1)(c)(ii)(A) or 4005(1)(c)(ii)(B).  The MOC’s opinion stated:

   The applicant is a 28 year old person with:
   – Asymptomatic chronic renal disease with renal transplant

   This condition is likely to be Progressive.

   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 [permanent stay in Australia].

   These services would be likely to include:

   Medical services
   Pharmaceuticals
   Medical services
   Pharmaceuticals
   Surgical services
   Medical services

   Organ Transplants

   Provisions of these health care and/or community services would be likely to result in a significant cost to the Australian community in the areas of health care and/or community services, and prejudice the access of an Australian citizen or permanent resident to health care or community services.

2. In assessing Mr Dhaliwal the MOC had regard to a report by his treating doctor, Dr Grant Luxton, a specialist in renal medicine at the Prince of Wales Hospital.  Dr Luxton’s report dated 17 April 2012 stated:

   Mr Dhaliwal presented in end-stage renal failure in June 2009 due to hypertension-related thrombotic microangiopathy.  He commenced haemodialysis then received a live-related renal transplant in India in August 2009.  He had a couple of early episodes of rejection which responded to treatment.

   His kidney function has been stable and he is on long-term immunosuppression ... His compliance with treatment is good.  Complications from his treatment have been limited to minor infections.

   He is being seen every three months in the transplant clinic ...

   He is in excellent health with normal exercise tolerance and no limitation in his ability to work even in physically demanding positions.  The prognosis for his transplant is good and he is likely to remain in good health.  He will need ongoing specialist review and continuation of his immunosuppressant medication.

3. On 8 August 2012 the Minister’s department wrote to the applicants inviting them to comment on the MOC’s report.  The delegate noted in his decision that after being granted an extension to respond to the invitation to comment, the applicants ultimately did not provide a response or any new information.  The delegate relied on the MOC’s opinion to find that Mr Dhaliwal did not meet PIC 4005 and refused the applicants’ application on that ground.

Tribunal proceedings

1. On 27 March 2013 the applicants filed an application with the Tribunal seeking review of the delegate’s decision.  By letter dated 2 August 2013 the Tribunal invited the applicants to comment on the MOC’s opinion that Mr Dhaliwal did not meet PIC 4005.  The letter also advised the applicants that if they requested it, the Tribunal could arrange for a further opinion to be obtained from a Review Medical Officer of the Commonwealth (“RMOC”).  In a response from the applicants’ representative dated 30 August 2013, the applicants requested that the Tribunal arrange for a further opinion from the RMOC.  The applicants’ representative provided two additional reports from Dr Luxton dated 12 September 2012 and 13 November 2012 and asked that those reports be considered by the RMOC.

2. Dr Luxton’s report of 12 September 2012 stated that Mr Dhaliwal had a good medical prognosis and in the medium term was unlikely to be a large burden on the Australian medical system.  Dr Luxton estimated that the costs of Mr Dhaliwal’s medication would amount to between $5,000 to $10,000 a year and opined that Mr Dhaliwal’s tax bill would more than cover those costs.  In his report dated 13 November 2012 Dr Luxton stated in relation to Mr Dhaliwal’s costs for his medication and clinic visits:

   I have listed his medication below and I do not anticipate a significant change in the treatment over the next five years. ... as stated in my previous letter Mr Dhaliwal’s health has been stable and I do not anticipate that he is likely to need much extra treatment.

   I have provided two inventories: the first is for that with clinic visits every three months as occurs currently and the second for clinic visits every three [recte: two?] months which he would be able to move to if he remains stable over the next year. 

   The estimates are somewhat higher than I anticipated and are accounted for mainly by the cost of his immunosuppressive medication.  They are $19,279.62 for a year with clinic visits every two months and $18,970.92 for a year with visits every three months.  There are significantly cheaper immunosuppressants however these may not be appropriate for him presently on grounds of clinical efficacy though may be considered so in future years.

   On 6 February 2014 the applicants provided to the Tribunal, for the RMOC’s consideration, a further report from Dr Luxton dated 4 February 2014.  The report essentially repeated Dr Luxton’s earlier opinions and noted that without treatment Mr Dhaliwal would probably reject his transplanted kidney.

3. On 14 February 2014 the Tribunal wrote to the RMOC seeking a further opinion on whether Mr Dhaliwal satisfied the requirements of PIC 4005.  The Tribunal provided to the RMOC the MOC opinion and Dr Luxton’s four medical reports.  In an opinion dated 24 February 2014 the RMOC found that Mr Dhaliwal did not satisfy PIC 4005(1)(c)(ii)(A).  The RMOC’s opinion read:

   The applicant is a 30 year old person with:
   – Stable chronic renal disease with renal transplant

   A person with this condition is likely to require ongoing immunosuppressive therapy.  This condition is likely to be Permanent.

   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 [permanent stay in Australia].

   These services would be likely to include:

   Medical services

   Pharmaceuticals

   Provisions of these health care and/or community services would be likely to result in a significant cost to the Australian community in the areas of health care and/or community services.

4. By letter dated 28 February 2014 the applicants were invited to attend a Tribunal hearing on 1 April 2014.  At the hearing the applicants stated that they would pay for Mr Dhaliwal’s treatment themselves and, if necessary, would arrange for him to obtain treatment from India.  They stated that Mr Dhaliwal successfully ran a business in Australia and had paid a lot of taxes in Australia.

The Tribunal’s decision and reasons

1. The Tribunal referred to the decisions in Robinson v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 148 FCR 182 and Ramlu v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 195 FLR 203 and was satisfied that the RMOC had not applied the wrong test. Specifically, the Tribunal was satisfied that the RMOC opinion had identified Mr Dhaliwal’s condition to which PIC 4005 applied, ascertained the form or level of the condition and applied the statutory criteria by reference to a hypothetical person who suffered from that form or level of the condition. The Tribunal noted that by virtue of reg.2.25A(3) it was bound to accept the opinion of the RMOC to be correct for the purposes of deciding whether Mr Dhaliwal satisfied the relevant health criterion. Accordingly, based on the RMOC’s opinion dated 24 February 2014, it found that Mr Dhaliwal failed to meet PIC 4005 and consequently also failed to meet cl.886.227. The Tribunal noted that there was no provision for the waiver of PIC 4005 for subclass 886 visas and therefore affirmed the delegate’s decision.

2. The Tribunal went on to note that at the end of its hearing the applicants and their representative had requested that it refer the matter to the Minister for consideration under s.351 of the Act. It noted that the representative submitted that the fact that the RMOC had found that Mr Dhaliwal’s condition was stable in 2014 indicated that his condition had improved and therefore the costs to the Australian community arising out of his condition would be significantly lower. The applicants’ representative also stated that the applicants had the capacity to contribute financially to Mr Dhaliwal’s care, which would reduce the burden on the Australian community. The Tribunal noted that it granted the applicants’ representative until 3 April 2014 to make further written submissions on the proposed Ministerial referral but by the time it made its decision on 16 April 2014 no such submissions had been received. The Tribunal noted that it had considered the applicants’ case and the guidelines on referring matters to the Minister and decided not to refer the matter. It noted that the applicants could still make a request directly to the Minister.

Proceedings in this Court

1. In their amended application the applicants alleged:

   1.The Tribunal failed to exercise its discretion in relation to an issue material to the outcome of the case.

   Particulars

   (a)The Tribunal refused the applicant’s request to defer taking a decision to enable further submissions to be made and further medical evidence to be submitted to the RMOC. See Minister for Immigration v Li (2013) HCA 18.

2. An application at the hearing of this matter to amend the application further was unsuccessful.

Allegation in amended application

1. The particular of the allegation that the exercise of the Tribunal’s discretion to proceed to a decision miscarried, as set out in the amended application, was incorrect. The facts as recorded by the Tribunal, the accuracy of which record was not challenged, are as summarised above at [15]. It may be that the applicants’ allegation was based on a handwritten notation to the Tribunal’s hearing record which appeared on p.313 of the Court Book and which suggested that the applicants had been given until 3 April 2014 to make a submission that the RMOC’s opinion was “defective” and that the Minister should intervene in their case. However, the Tribunal’s decision did not record that the applicants asked the Tribunal to delay making its decision and, as already noted, they did not challenge the accuracy of that decision record.

2. It was conceded by the applicants at the hearing of this application that they had been represented before the Tribunal and had not, at that time, sought more than two days to present further material.  The applicants also conceded that they had not, between the Tribunal hearing and the publication of the Tribunal’s decision, sought an extension of the time which the Tribunal had given them to proffer additional material.  The applicants also submitted that the two days they had been allowed to present further material was unreasonably brief.  However, that was not a relevant issue.  The relevant issue was whether the Tribunal’s decision to allow the applicants the time it did allow them represented a manifestly unreasonable exercise of discretion in the sense discussed in Minister for Immigration & Citizenship v Li (2013) 249 CLR 332. No evidence was adduced from which it could be concluded that no reasonable decision-maker would have imposed that time limit. In circumstances where no request was made to the Tribunal that it consider allowing the applicants further time to supply additional material, there is no basis to conclude that its decision to proceed to a decision, which was published nearly a fortnight after the deadline it had set, manifested a miscarriage of discretion.

Allegation in written submissions

1. In their written submissions, the applicants alleged that the Tribunal’s decision was flawed because it, and the RMOC’s opinion on which it was based, had themselves been based on an incorrect version of PIC 4005 and so the Tribunal and the RMOC were misdirected as to the law. 

2. The version of PIC 4005 which applied to the applicants was the one in place following amendments effected by items 2 to 6 of sch.4 to the Migration Legislation Amendment Regulations 2011 (No.1).  The version of PIC 4005 relied on by the Tribunal and the RMOC reflects those amendments.  Subclause (3) of PIC 4005 was further amended later in 2011 but that change did not affect the applicants:  Migration Amendment Regulations 2011 (No.6), reg.5 and item 1 of sch.3.  Consequently, the Tribunal and the RMOC did not apply the wrong version of PIC 4005.  

3. The applicants’ written submissions also made various criticisms of the delegate’s decision. This Court can only review the Tribunal’s decision and has no power to review the delegate’s decision: s.476 of the Act. Those criticisms are therefore not relevant to this proceeding.

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 2 September 2016