Mai v Minister for Immigration - [2016] FCCA 2901

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAI v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 2901

Catchwords:
MIGRATION – Judicial review application – decision of former Migration Review Tribunal – Skilled (Residence) (Class VB) visa – opinion of a Medical officer of the Commonwealth – public interest criteria – assessment in relation to hypothetical person not actual circumstances of the applicant – whether jurisdictional error.

Legislation:

Migration Act 1958 (Cth), Pt.5, Div.5, ss.357A, 359AA, 362A, 474, 476

Migration Regulations 1994 (Cth), reg.2.25A(1), Sch.2, cl.885.224, Sch.4, cl.4005
Tribunals Amalgamation Act 2015 (Cth), s.3, Sch.2

Applicant:

SON TUNG MAI

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 368 of 2014

Judgment of:

Judge Antoni Lucev

Hearing date:

24 April 2015

Date of Last Submission:

24 April 2015

Delivered at:

Perth

Delivered on:

11 November 2016

REPRESENTATION

For the Applicant:	In person
Counsel for the First Respondent:	Ms L Gallagher

For the second respondent:	Submitting appearance, save as to costs
Solicitors for the Respondents:	Sparke Helmore

ORDERS

The name of the second respondent be amended to “Administrative Appeals Tribunal”.
The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 368 OF 2014

SON TUNG MAI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This proceeding commenced on 19 November 2014 by the applicant filing an application (“Judicial Review Application”) seeking review under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the then Migration Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively). The Tribunal Decision made on 30 October 2014 is at Court Book (“CB”) 192-196. The Tribunal Decision affirmed a decision made by a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”), made on 21 February 2014 to refuse the applicant a Skilled (Residence) (Class VB) visa (“Skilled…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] FCCA 2901
Decision Date: 11 November 2016

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the case of Mai and the Minister for Immigration, Citizenship and Multicultural Affairs. The applicant sought review of the Minister's decision to refuse him a Skilled (Residence) (Class VB) visa. The refusal was based on the applicant failing to meet Public Interest Criterion (PIC) 4005, specifically PIC 4005(1)(c), which requires an applicant to be free from a disease or condition that would likely require health care or community services resulting in significant cost to the Australian community or prejudice access for citizens and residents.

The primary legal issue before the Tribunal was whether the applicant satisfied PIC 4005(1)(c). This required the Tribunal to determine if a Medical Officer of the Commonwealth (MOC) opinion, which indicated the applicant did not meet the criterion, was valid and correctly applied. The Tribunal was bound to accept a valid MOC opinion as correct, provided it applied the correct legal test.

The Tribunal reasoned that, as there was information suggesting the applicant might not meet PIC 4005, it was required to seek a MOC opinion under regulation 2.25A. A Review Medical Officer of the Commonwealth (RMOC) provided an opinion on 10 September 2014, assessing the applicant against PIC 4005 for permanent residency. This opinion identified the applicant's medical condition as asymptomatic HIV infection and concluded that a hypothetical person with this condition, at the same severity, would likely require health care or community services that would result in significant cost to the Australian community. The RMOC outlined the basis for this opinion, including various medical reports and previous MOC assessments. The Tribunal found this RMOC opinion to be valid and therefore binding. Despite the applicant's submissions regarding his personal circumstances, his contributions to the community, and the potential risks of returning to Vietnam, the Tribunal held that the RMOC's assessment of a hypothetical person was determinative and that the applicant's individual circumstances were not relevant to the question of cost to the community.

Consequently, based on the binding RMOC opinion, the Tribunal found that the applicant did not satisfy PIC 4005. As this was a mandatory visa requirement, the Tribunal affirmed the decision under review, meaning the applicant was not granted the Skilled (Residence) (Class VB) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Tribunal Decision provided that:CONSIDERATION OF CLAIMS AND EVIDENCEIs the applicant free from the relevant diseases or conditions (PIC 4005(1)(a), (b), (c))?7. Clause 885.224 requires that the applicant satisfies various Public Interest Criteria (PIC), including PIC 4005. In the applicant's case, the relevant PIC 4005 sub-paragraph is 4005(1)(c) which requires the applicant be free from a disease or condition which would be likely to require health care or community services or which would meet the medical criteria for provision of a community service during the specified period; and provision of the health care or community services (regardless of whether it will actually be used in connection with the applicant) would be likely to: result in a significant cost to the Australian community in the areas of health care and community services; or prejudice access of an Australian citizen or permanent resident to health care or community services.8. In determining whether a person meets PIC 4005(1 )(a), (b) or (c), r.2.25A requires the Tribunal to seek the opinion of a Medical Officer of the Commonwealth (MOC) unless: the application is for a temporary visa and there is no information known to Immigration to the effect that the person may not meet those requirements; or the application is for a permanent visa and made from a specified country and there is no information known to Immigration to the effect that the person may not meet those requirements.9. At the visa application stage a Medical Officer of the Commonwealth (MOC) had assessed the applicant's medical information and finalised his health assessment with an outcome that he does not meet the health requirement on 8 February 2013. A second MOC opinion was sought and the outcome, dated 24 December 2013, reflected the same result as the first.10. In these circumstances, given there is information known to Immigration to the effect that the applicant may not meet PIC 4005(1)(a), (b) or (c), the Tribunal is required to seek a MOC opinion: r.2.25A(1). The Tribunal must take the MOC opinion as correct, but must first be· satisfied the MOC has applied the correct test in forming the opinion: Robinson v MIMIA (2005) 148 FCR 182 and Ramlu v MIMIA [2005] FMCA 1735. That is, the opinion must identify the medical condition to which the public interest criterion has been applied, and the form or level of the condition suffered by the applicant, and the MOC must have applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition.11. The Tribunal notes that during the review stage a RMOC opinion was sought and the results provided to the Tribunal by the relevant health provider. In that opinion, dated 10 September 2014, it is stated that:The applicant has been assessed against Public Interest Criterion (PIC) 4005 for the period of a permanent stay in Australia.The applicant does not satisfy sub-subparagraph PIC 4005(1)(c)(ii)(A) in Schedule 4 to the Regulations.12. In that opinion the RMOC outlines the applicant's medical history, identifies the applicant’s medical condition as asymptomatic HIV infection, concludes 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, and lists what those services would be likely to include. The RMOC also lists the information they had had regard to in preparing the opinion [Immigration medical dated 4 December 2012, previous MOC opinions dated 8 February 20 I 3 and 24 December 2013, immunology registrar Dr Bourke's report dated 20 December 2012, specialist immunologist Dr Nolan's report dated 19 April 2013 and infectious diseases specialist Dr Ingram 's report dated 15 August 2014.]13. The Tribunal is satisfied that the RMOC opinion dated 10 September 2014 is valid and the Tribunal is bound to accept it as correct.14. A copy of that opinion was sent to the applicant on 27 October 2014 (following a request by the applicant under section 362A of Act). Pursuant to section 359AA of the Act, the Tribunal put the information contained in that opinion to the applicant at the hearing on 28 October 2014 and explained the consequence of the information to the applicant in the following terms:•Subject to any comments you may have, it indicates that a (Review) MOC has assessed that you do not meet the requirements under PIC 4005(1)(c)(ii)(A) which relate to the provision of health care or community services likely to result in a significant cost to the Australian community in the areas of health care and community services.•Further, the Tribunal must consider a valid opinion to be correct.•If the Tribunal so finds, this would mean that you do not satisfy PIC 4005 for the purposes of cl.885.224, which is a mandatory visa requirement.•If so, this would be the reason or part of the reason for affirming the decision under review.15. At the hearing, in response to information contained in the RMOC opinion, the applicant said that whilst he understands the law in this matter in relation to a hypothetical person with his condition, he feels personally that there is an unfairness to the decision given he has been a productive and contributing member of the Australian community (and economy) for the last 11 years. He stated that no matter how well he has maintained and invested in his health over the years since his diagnosis, the RMOC opinion is based on a generalised case. Furthermore, it would not matter what he has done or is able to do to mitigate the cost of his care, which he considers is unfair.16. The applicant stated further that whilst he is not questioning the validity of the RMOC opinion, he questions their regard for the expert opinions of Dr Nolan and Dr Ingram, both well-known and experienced immunologists. He said that the treatment of the condition, including the availability and costs of medicine, have come a long way and will continue to do so. He said that he was advised by the Immunology Department at Perth hospital that his current health care costs totalled around $12,000 per annum. The applicant said that in the United States and Canada, where there are alternative options to buy some medicines online, the costs are as low as $2000 per annum.17. The Tribunal has had regard to these submissions by the applicant, and the recent report from his treating physician confirming his excellent health status and the fact that he is currently receiving anti-retroviral therapy without cost to the Australian community (through participating in a trial). However, as explained to the applicant at the hearing, the RMOC takes the level and degree of the disease and applies it to a hypothetical person. As such the applicant's personal circumstances are not relevant to the question of the cost to the community, for example.18. The applicant also stated at the hearing that he has been in Australia since he was 17 years old (he is now 28), and has effectively grown up here, both personally and professionally. There will be risks to his health and personal safety if he has to return to Vietnam, facing discrimination because of his sexual preference and limited access to treatment. Whilst the Tribunal has sympathy for the applicant in this respect, as noted above (and discussed at the Tribunal hearing), if satisfied that the RMOC is properly made, the Tribunal is bound to accept it as correct, and cannot go behind that opinion.19. Accordingly, based on the opinion of the RMOC dated 10 September 2014, the Tribunal finds that the applicant does not satisfy public interest criterion 4005(1)(c).CONCLUSION20. As the applicant has not satisfied the requirements of PIC 4005, the Tribunal must affirm the decision under review.DECISION21. The Tribunal affirms the decision not to grant the applicant a Skilled (Residence) (Class VB) visa.CB 193-196.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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