Mai v Minister for Immigration
[2016] FCCA 2901
•11 November 2016
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 |
| Cases cited: Blair v Minister for Immigration & Multicultural Affairs [2001] FCA 1014 Imad v Minister for Immigration & Multicultural Affairs [2001] FCA 1011 JP1 & Ors v Minister for Immigration & Citizenship & Anor [2008] FMCA 970; (2008) 220 FLR 37 Minister for Immigration & Multicultural Affairs v Seligman [1999] FCA 117; (1999) 85 FCR 115; (1999) 164 ALR 173; (1999) 55 ALD 374 Pillay v Minister for Immigration & Anor [2009] FMCA 517 Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1; (2003) 77 ALJR 699; (2003) 195 ALR 502; (2003) 72 ALD 613 Singh v Minister for Immigration & Border Protection [2015] FCCA 533 Robinson v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1626; (2005) 148 FCR 182 Triandafillidou v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 20; (2004) 181 FLR 302 X v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 429 |
| 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 Residence Visa”) under the Migration Act.
Background to the Judicial Review Application
The background to the Judicial Review Application is as follows:
a)the applicant, a citizen of Vietnam, lodged an application for the Skilled Residence Visa on 14 February 2009: CB 1-16;
b)on 4 December 2012 a Form 26 was completed by the applicant and an examining physician that indicated that the applicant had been diagnosed as HIV positive approximately one year prior: CB 69-78;
c)in an opinion by a Medical Officer of the Commonwealth (“MOC Opinion”) dated 8 February 2013 it was considered that the applicant did not satisfy cl.4005(1)(c)(ii)(A) (“PIC 4005”) of Schedule 4 to the Migration Regulations 1994 (Cth) (“Migration Regulations”) as “a hypothetical person with the same disease or condition, at the same severity as the applicant, would be likely to require health care or community services…” and that those services would likely include medical services and pharmaceuticals: CB 101-102;
d)a further MOC opinion was completed on 24 December 2013 (“Further MOC Opinion”). It was again considered, after taking into account relevant information including further medical reports submitted by the applicant, that the applicant did not satisfy PIC 4005(1)(c)(ii)(A) of Schedule 4 to the Migration Regulations: CB 136-137;
e)on 21 February 2014 the Delegate refused to grant the applicant a Skilled Residence Visa on the basis that the applicant did not satisfy the criteria in cl.885.224 of Schedule 2 to the Migration Regulations as he had failed to satisfy PIC 4005 of Schedule 4 to the Migration Regulations: CB 139-148;
f)on 8 March 2014 the applicant lodged an application for review of the Delegate’s Decision with the Tribunal: CB 149-150, an application for review which the Tribunal acknowledged on 14 March 2014: CB 151-154 (“Tribunal Acknowledgment Letter”);
g)on 6 August 2014 the applicant was invited to request a further MOC opinion: CB 155-157, and the applicant submitted a request for a further MOC opinion on 20 August 2014 along with a further medical report from an infectious diseases consultant with the Department of Clinical Immunology at Royal Perth Hospital dated 15 August 2014: CB 161 and 165-166 (“Consultant’s Report”). The Court notes that the Consultant’s Report observes that:
Son Mai was last reviewed in the Royal Perth Hospital outpatient clinic on l5th July 2014 and remains completely asymptomatic from his HIV infection and free of opportunistic infections. He continues to act responsibly with regard to his HIV management, engaging with clinical HIV services, maintaining a high level of compliance, voluntarily participating in a clinical trial, taking a responsible approach to safe sex practices and working full time. He does not smoke, drinks minimal alcohol, has a normal blood pressure and is within the healthy weight range. In March 2014, asymptomatic rectal screening demonstrated high risk anal human papilloma virus (HPV) and atypical cells of uncertain significance on cytology for which he will receive routine follow [up] at the local sexual health clinic. The risk of progression of this to pre-malignant changes is very low.
Son Mai's overall prognosis is excellent, given his excellent compliance with therapy, fully suppressed HIV viral load, normal CD4 count and lack of significant co-morbidities. His ongoing HIV care is likely to be uncomplicated and relatively inexpensive given the anti-retroviral regime his [he] is receiving.
CB 165;
h)in the opinion of a review medical officer of the Commonwealth (“RMOC Opinion”) dated 10 September 2014 it was considered that the applicant suffered “asymptomatic HIV infection” and that his condition was “stable and asymptomatic on the current management of antiretroviral therapy”. It was, however, further considered that “a hypothetical person with this condition at the same severity as the applicant would be likely to require specialist health monitoring and management with costly lifelong antiretroviral therapy. This condition is likely to be Permanent”. As such it was considered that the applicant did not satisfy PIC 4005(1)(c)(ii)(A) of Schedule 4 to the Migration Regulations: CB 169-170 and 195 at [17] and [19]; and
i)the Tribunal by letter dated 12 September 2014 invited the applicant to attend a hearing before the Tribunal (“Tribunal Invitation Letter” and “Tribunal Hearing” respectively) on 28 October 2014, with the Tribunal Hearing to be conducted by telephone with the Tribunal sitting in Melbourne: CB 171-174.
Tribunal Decision
In the Tribunal Decision the Tribunal found that:
a)the RMOC Opinion dated 10 September 2014 was valid and that the Tribunal was bound to accept the RMOC Opinion as correct: CB 194 at [13]; and
b)based on the RMOC Opinion, the applicant did not satisfy the requirements of PIC 4005 of Schedule 4 to the Migration Regulations: CB 195 at [19],
and the Tribunal therefore affirmed the Delegate’s Decision not to grant the applicant a Skilled Residence Visa: CB 195 at [20].
The Tribunal Decision provided that:
CONSIDERATION OF CLAIMS AND EVIDENCE
Is 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).
CONCLUSION
20. As the applicant has not satisfied the requirements of PIC 4005, the Tribunal must affirm the decision under review.
DECISION
21. The Tribunal affirms the decision not to grant the applicant a Skilled (Residence) (Class VB) visa.
CB 193-196.
Grounds of the Judicial Review Application
The applicant’s grounds of review in the Judicial Review Application are as follows:
1. The tribunal hearing was conducted in an unfair manner where I did not have a chance to provide further evidences.
2. Despite agreeing with my arguments, the tribunal’s decision conflicted.
3. When I requested access to my case documents held by the tribunal prior to the hearing, my request was not accepted, leaving me in the blind in regard to necessary information to support my arguments.
The applicant did not file written submissions, but made oral submissions at hearing. For practical purposes, the applicant’s submissions repeated the merit submissions made to the Tribunal: see, for example, CB 194-195 at [15]-[18]. The Minister filed written submissions and made oral submissions at hearing. The Minister ultimately submitted that there is no jurisdictional error in the Tribunal Decision, and it is a privative clause decision within the meaning of s.474 of the Migration Act. The submissions in relation to each ground of the Judicial Review Application are set out in more detail below.
Ground 1
Applicant’s submissions
Questioned at hearing concerning the substance of ground 1 the applicant submitted:
a)that had his original application for the Skilled Residence Visa not been delayed during the process of assessment by the Department then the HIV condition that he contracted would not have been an issue and he would not have been denied the Skilled Residence Visa: Transcript at 5-6; and
b)that it was unfair that his personal circumstances, by virtue of which his condition was, or may in the future be, treatable at low cost, and which did not affect his capacity to be an ongoing productive member of Australian society, was not taken into consideration: Transcript at 4 and 6-7.
This aspect of the submission essentially repeated what had been put to the Tribunal by way of merit submission: see CB 194-195 at [15]-[18].
Minister’s submissions
The Minister submits that:
a)ground 1 is not sufficiently particularised to make it meaningful;
b)the applicant was provided with a number of opportunities to provide further documents to the Tribunal, and in that regard:
i)the Delegate’s Decision directly referred to the fact that the applicant did not meet cl.885.224 of Schedule 2 to, or PIC 4005 of Schedule 4 to, the Migration Regulations;
ii)the Tribunal Acknowledgment Letter advised the applicant as follows: “If you wish to provide material or written arguments for the Tribunal to consider, you should do so as soon as possible”: CB 151-154; and
iii)the Tribunal Hearing Invitation Letter advised the applicant as follows: “Please provide all documents you intend to rely on to establish that you meet the criteria for the visa. The decision made by the department to refuse to grant a visa should set out the reasons why you did not meet the criteria, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing”: CB 171-174; and
c)the applicant appeared at the Tribunal Hearing on 28 October 2014 to give evidence and present arguments: CB 181-184.
Consideration – ground 1
The Tribunal Decision is entirely orthodox in its approach to the assessment of fact, the law to be applied and the application of the law and the facts to the relevant criteria in relation to the applicant’s Skilled Residence Visa application: see [4] above.
Because the task of this Court is to determine whether there is jurisdictional error in the Tribunal Decision it is irrelevant to the Court’s task that the applicant’s Skilled Residence Visa application was not assessed more quickly by the Department when initially made. In that regard, no jurisdictional error can arise, because it is not a matter which either affects, or was considered by, the Tribunal, and nor was it a matter which the Tribunal needed to consider in undertaking a fresh merit review of the applicant’s Skilled Residence Visa application.
There was no unfairness, and no jurisdictional error, on the part of the Tribunal in relation to the opportunity to provide evidence to the Tribunal. The applicant was aware of the reasons set out in the Delegate’s Decision which were to be reviewed by the Tribunal, and had ample opportunity to put evidence before the Tribunal prior to the Tribunal Hearing in relation to either the matters referred to in the Delegate’s Decision: see the Delegate’s Decision at CB 143-148, or any fresh evidence that the applicant sought to put forward, and ample opportunity to submit written material or documents by reason of the Tribunal Acknowledgement Letter and the Tribunal Hearing Invitation Letter: see CB 151-154 and CB 171-174 respectively.
The applicant also appeared at the Tribunal Hearing and gave evidence and presented arguments: CB 181-184. There is nothing in the applicant’s oral submissions at hearing before this Court, or otherwise discernible from the Tribunal Decision, which suggests that the Tribunal did not permit, or in some way prevented, the applicant from putting any evidence before the Tribunal. Rather, the contrary appears to have been the case, and, in any event, as the Court observed at [9] above, the Tribunal’s assessment of fact, statement of the law to be applied and application of the law and the facts to the relevant criteria in relation to the applicant’s Skilled Residence Visa application was entirely orthodox.
The Tribunal correctly observed that any unfairness particular to the applicant in relation to his condition and its future treatment was not relevant, because an MOC was required to determine whether or not the applicant met the requirements of PIC 4005(1) of Schedule 4 to the Migration Regulations, which requires assessment not of the applicant’s personal circumstances, but those of the hypothetical person with the applicant’s condition. The Tribunal undertook that task: CB 195 at [17], having regard to the RMOC Opinion.
In relation to the RMOC Opinion the Court observes that:
a)in Minister for Immigration & Multicultural Affairs v Seligman [1999] FCA 117; (1999) 85 FCR 115; (1999) 164 ALR 173; (1999) 55 ALD 374 (“Seligman”) at [48] and [49] per French, North and Merkel JJ the Full Court of the Federal Court made the following observations with respect to the defining and limiting attributes of a medical officer’s opinion:
48 The seeking of an opinion by the Minister takes place " in determining whether an applicant satisfies the criteria for the grant of a visa". This recognises the conceptual distinction between ascertaining whether criteria are satisfied and deciding to grant or refuse the visa. It is the first limb of that two phase process upon which the requirement of reg 2.25A operates. The defining and limiting attributes of what is sought from the Medical Officer are:
1. What is provided must be an opinion.
2. The opinion must be that of the Medical Officer of the Commonwealth who provides it.
3. The subject of the opinion must be " whether a person meets the requirements of the applicable paragraph of Schedule 4".
49 The Minister is required by subreg 2.25A(3) to take the opinion to be “correct". That is subject to three qualifications:
1. The opinion must be the opinion of the Medical Officer "on a matter referred to in subreg (1) or (2)". The matter referred to in subreg 2.25A(1) is whether a person meets the requirements of the relevant paragraph of Schedule 4.
2. The Minister is to take the opinion as correct for the purposes of deciding whether a person meets a requirement or satisfies a criterion.
3. The opinion must address satisfaction of the requirements at the time of the Minister's decision.
b)of the matters of medical and other judgment involved in considering the terms of what was then reg.2.25A(1) of the Migration Regulations the Full Court of the Federal Court in Seligman at [53] per French, North and Merkel JJ said as follows:
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.
c)in relation to taking into account the opinion of a MOC the Full Court of the Federal Court in Seligman at [66] and [68] per French, North and Merkel JJ observed as follows:
…The delegate is only entitled and obliged to take that opinion as correct if it is an opinion of a kind authorised by the regulations and, it may be added, validly so authorised. If it is not or if it travels beyond the limits of what is authorised, then to act upon it as though it is binding is to act upon a wrong view of the law and to err in the interpretation of the law or its application, a ground of review for which s 476 of the Act provides.
and
As to the second ground relied upon by his Honour, relating to the absence of evidence to support the Medical Officer's opinion, an opinion which is unlawful for that reason does not bind the delegate. The fact that the delegate may not have made inquiry or may have been unaware of the deficiency makes it no less an error of law to treat the opinion as provided in accordance with the requirements of the regulations and to be taken as correct.
d)the Full Court of the Federal Court in Seligman therefore determined that there was jurisdiction in the Court “to consider the lawfulness of the medical officer’s opinion as an element of its consideration of the lawfulness of the delegate’s decision”: Seligman at [69] per French, North and Merkel JJ;
e)PIC 4005(1) of Schedule 4 to the Migration Regulations was amended following the decision in Seligman and the relevant criteria are those now set out in PIC 4005(1)(c) of Schedule 4 to the Migration Regulations which are set out in the Tribunal Decision at CB 193 at [7]: see [4] above, and Imad v Minister for Immigration & Multicultural Affairs [2001] FCA 1011 at [12] per Heerey J (“Imad”). PIC 4005(1)(c) of Schedule 4 to the Migration Regulations has been held by the Federal Court to be valid. In Imad the Federal Court at [13]-[14] per Heerey J said 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.
f)in Blair v Minister for Immigration & Multicultural Affairs [2001] FCA 1014 (“Blair”) the Federal Court dealt with an application which alleged that a MOC’s opinion was invalid. The Federal Court in that matter adopted what was said in Seligman at [48]-[49] and [66] per French, North and Merkel JJ, as to the correctness or validity of a MOC’s opinion; Blair at [18]-[19] per Carr J;
g)in X v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 429 at [14]-[15] per Finkelstein J the Federal Court observed as follows:
14 Ground (d) assumes that the assessment required by the clause is not of an entirely hypothetical person with a certain disease, but “involve[s] consideration of the condition or disease of the nature or kind suffered by the applicant.” The prosecutor says that the terms of sub-para 4005(c)(i), in particular “the disease or condition is such that...” … indicate that the decision-maker is required to take into account the nature and extent of the particular symptoms suffered by the prosecutor. In the prosecutor’s submission, this would be the only sensible reading of the provision, being that " [t]here is obviously a wide range of symptomology and different levels of functioning for HIV sufferers". In my view, however, the respondent is correct in saying that para 4005(c) only requires the RMOC to focus upon the position of “a hypothetical person who suffers from HIV” since the terms of the provision focus upon the “disease or condition” generally, not upon the condition of a particular applicant or class of applicants. All the Medical Officer need do is provide an opinion about the likelihood of a hypothetical person with “the disease or condition” requiring health care or community services during the time of the prosecutor’s stay in Australia, and about whether the likely cost to the community of those services would be “significant.” The terms and purpose of the condition mandate no finer distinctions.
15 There is no basis for the conclusion that the RMOC failed to comply with these requirements. It is true that the opinion was expressed in imprecise language, but that is not enough to infer error. The RMOC observed first that the prosecutor was a person with HIV. She then observed that as a person with HIV he would in fact require “management of his condition which is at a significant ongoing cost". This should not be understood as misapplying the statutory criteria, but rather as suggesting that the present case is a typical example of that of a sufferer of HIV and of the type and cost of required treatment. The RMOC thus expressed an opinion that a sufferer of HIV would generally be likely to require health care of the kind and generally at the cost of that required by the applicant, and that that cost was significant. It is for that reason that HIV was a disease to which para 4005(c) applied.
h)in Robinson v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1626; (2005) 148 FCR 182 (“Robinson”) at [43] per Siopis J the Federal Court dealt with the appropriate test to be applied to the construction of the public interest criterion in PIC 4005. The Federal Court observed as follows:
43 … In my view, the applicant’s submission as to the appropriate test to be applied, is to be accepted. A proper construction of Public Interest Criterion 4005 of the Regulations, requires the MOC to ascertain the form or level of condition suffered by the applicant in question and then to apply the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition. It is not the case that the MOC is to proceed to make the assessment at a higher level of generality by reference to a generic form of the condition.
In the Court’s view the RMOC Opinion is an opinion of an MOC, because:
a)it is in the form of an opinion, and is headed up “Opinion of a Medical Officer of the Commonwealth”;
b)it expresses an opinion as to whether the applicant meets the relevant health requirement;
c)considers whether or not a hypothetical person with the applicant’s disease or condition (which it identifies), at the same severity as that of the applicant, would be likely to require health or community services during the period specified, and indicates that that would be the case, and indicates the nature of the services likely to be required;
d)expresses the view that the provision of those health care or community services would be likely to result in a significant cost to the Australian community in the area of health care or community services;
e)indicates that in preparing the RMOC Opinion regard was had to earlier medical reports concerning the applicant; and
f)indicates that the applicant has been assessed against PIC 4005, for the period of a permanent stay in Australia, and expresses the view that the applicant does not satisfy PIC 4005(1)(c)(ii)(A) of Schedule 4 to the Migration Regulations.
Having regard to the foregoing, the RMOC Opinion clearly expresses an opinion on the issue of whether or not the applicant meets the requirements of PIC 4005 of Schedule 4 to the Migration Regulations, and is therefore an opinion on the matter referred to in reg.2.25A(1) of the Migration Regulations.
Having regard to the matters considered the opinion expressed in the RMOC Opinion was one that the RMOC was entitled to form given that the provision of such services would be likely to result in significant cost to the Australian community for a hypothetical person with the applicant’s identified condition: Imad at [14] per Heerey J. These are matters of medical judgment: Seligman at [53] per French, North and Merkel JJ, and in respect of which there was no obligation to specify cost: Blair at [38] and [46] per Carr J; JP1 & Ors v Minister for Immigration & Citizenship & Anor [2008] FMCA 970; (2008) 220 FLR 37 at [15] and [32] per Riley FM; Pillay v Minister for Immigration & Anor [2009] FMCA 517 at [60] per Barnes FM; Triandafillidou v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 20; (2004) 181 FLR 302 at [61] per Bryant CFM.
Having regard to the above matters it is plain that the Tribunal did not conduct the Tribunal Hearing unfairly, nor did it prevent the applicant from providing further evidence. Further, having regard to the RMOC Opinion, and the entirely orthodox manner in which the Tribunal assessed the facts, stated the law and applied the facts and the law to the relevant criteria, it is equally plain that the Tribunal Decision does not evince any jurisdictional error for the reasons set out in ground 1 of the Judicial Review Application.
Ground 2
Applicant’s submissions
At hearing the Court indicated to the applicant that it did not necessarily understand what this ground meant and that he needed to explain it to the Court. In so doing, the applicant suggested that as he had expressed his concerns about the criteria for the Skilled Residence Visa at the Tribunal Hearing the Tribunal had agreed with him. Further, the applicant again suggested that opinions concerning his medical condition were disregarded in favour of the test based upon the hypothetical person: see Transcript at page 7.
Minister’s submissions
The Minister submits that:
a)ground 2 is misconceived, as at no point in the Tribunal Decision did the Tribunal express any agreement with the applicant’s submissions;
b)the Tribunal merely outlined the content of the applicant’s submissions: at CB 195 at [15] and [16], and confirmed that “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 costs to the community”: CB 195 at [17]; and
c)although at CB 195 at [18] the Tribunal noted that it had “sympathy” for the applicant, it said that it was bound to accept the RMOC Opinion as correct and could not go behind it if it was satisfied that it had been properly made, and it was so satisfied: CB 195 at [18]-[19].
Consideration – ground 2
There is no evidence that the Tribunal ever agreed with the applicant’s arguments, and the Tribunal Decision stands as a comprehensive refutation of the applicant’s assertion in this regard. There is no evidence before the Court as to what was said at the Tribunal Hearing, and even if the Tribunal agreed that the applicant’s medical condition and personal circumstances were as described by him, that does not constitute an agreement as to the proper application of the relevant facts and the law to the applicable criteria for the grant of the Skilled Residence Visa. Even if, as may be the case, the Tribunal did agree with the applicant’s description of his medical condition and personal circumstances, or at the very least expressed “sympathy” in relation to them: see CB 195 at [18], that is not inconsistent with the Tribunal then proceeding to refuse to grant the Skilled Residence Visa on the basis that the applicant did not satisfy the relevant criteria. This is what the Tribunal did, as it was obliged to do, and there is no conflict between the Tribunal so doing, and its expressing agreement (if that is what it did) as to the applicant’s actual medical condition and personal circumstances. For reasons set out in relation to ground 1 above: see [13]-[17] above, the Tribunal was correct to apply the hypothetical person test.
For the above reasons, ground 2 is not made out, and it establishes no jurisdictional error in the Tribunal Decision.
Ground 3
Affidavit evidence
In relation to ground 3 the Minister relied upon the affidavit of Claire Amy Campbell (“Campbell Affidavit”) who deposed to a search of the relevant files held by the solicitors instructed for the Minister, and to finding two documents not included in the Court Book, namely:
a)an email from the applicant to the Tribunal attaching a Request for Access to Written Material Held by the Tribunal under s.362A of the Migration Act dated 22 October 2014 (“Written Material Access Request”): Campbell Affidavit, Annexure CAC-1; and
b)the Tribunal’s email response dated 27 October 2014 enclosing a copy of the RMOC Opinion (“Written Material Access Response”): Campbell Affidavit, Annexure CAC-2.
Applicant’s submissions
Although it might be inferred from ground 3 that no documents were provided to the applicant upon request, in oral submissions he conceded that the RMOC Opinion was provided to him prior to the Tribunal Hearing, but that there had been a delay (“quite a long period” as the applicant expressed it: Transcript at page 9) before the RMOC Opinion was provided. In essence, the applicant complains that he was not given enough time to consider the RMOC Opinion before the Tribunal Hearing.
Minister’s submissions
The Minister submits that:
a)it cannot be maintained that the Tribunal failed to provide the applicant with documents concerning his case. The applicant requested a copy of the RMOC Opinion by telephone on 15 September 2014 and was advised that the request was required to be submitted in writing: CB 175;
b)in Singh v Minister for Immigration & Border Protection [2015] FCCA 533 at [56] per Judge Lloyd-Jones, this Court held that neither the Migration Act nor the Migration Regulations require that an application for written material be made to the Tribunal by a specific form. In this matter:
i)the Tribunal did not request that the application be made on any specific form but simply that it be in writing; and
ii)even if the application was not required to be in writing the applicant was provided with access to the RMOC Opinion prior to the Tribunal Hearing. The Written Material Access Request to the Tribunal was not made until 22 October 2014, and the Written Material Access Response provided the RMOC Opinion to the applicant on 27 October 2014, three days before the Tribunal Hearing: Campbell Affidavit, Annexures CAC-1 and CAC-2; and
c)there was no breach of procedural fairness in relation to the provision of the RMOC Opinion because:
i)section 357A of the Migration Act states that Part 5, Division 5 of the Migration Act is an exhaustive statement of the requirements of the natural justice hearing rule, and the Tribunal put the information contained in the RMOC Opinion to the applicant for comment pursuant to s.359AA of the Migration Act: CB 194 at [14]; and
ii)if the applicant considered he was “blind in regard to necessary information to support my arguments” he could have requested further time to place documents before the Tribunal, however, there is no evidence to suggest that such a request was made.
Consideration – ground 3
The Tribunal wrote to the applicant, via his registered migration agent, on 6 August 2014 indicating that the Delegate’s Decision to refuse to grant a Skilled Residence Visa was based upon the Further MOC Opinion that the applicant did not meet the relevant health criterion, and enclosing a copy of the Further MOC Opinion: CB 156-157. The Tribunal further advised that it considered that another opinion from a MOC should be obtained by the applicant and provided the appropriate forms to enable the applicant to seek another MOC opinion: CB 157.
On 20 August 2014 the applicant sent to an officer at the Tribunal the relevant request form for another MOC opinion, a receipt for payment, and additional supporting documents from the applicant’s treating doctor to accompany the file and documents provided by the Department to the Tribunal for the purposes of the review by the Tribunal: CB 160.
On 25 August 2014 the Tribunal wrote to a MOC seeking another MOC opinion as to whether the applicant satisfied the requirements of PIC 4005 of Schedule 4 to the Migration Regulations, and requested that that MOC opinion (which would become the RMOC Opinion) be received at the Tribunal by 8 September 2014: CB 167-168.
The RMOC Opinion is dated 10 September 2014: CB 169-170. It is not apparent as to when the RMOC Opinion was actually provided to the Tribunal. The Tribunal Hearing Invitation was, however, sent to the applicant on 12 September 2014: CB 172-174.
On 15 September 2014 the applicant contacted the Tribunal and spoke to a Tribunal officer about the location of the Tribunal Hearing, the nomination of another person to give evidence, and he also:
… requested a copy of the MOC letter, to which I replied he should send in a written request for the letter. When asked whether he had contacted his agent about such correspondence he says he had little contact with his agent and this is why he is calling the tribunal.
CB 175.
On 19 September 2014 the applicant sent to the Tribunal the Response to Hearing Invitation form, but made no request for access to any documents (the Court observes that the Response to Hearing Invitation form does not specifically provide for a request for access to documents to be made by an applicant): CB 176-178.
On the evening of 22 October 2014 the applicant sent the Written Material Access Request to the Tribunal, and therein stated the description of the written material requested as follows:
I require the result of review MOC on my health status please, that i responded to invitation to obtain a further opinion from a review MOC, from MRT
Campbell Affidavit, annexure CAC-1.
On 24 October 2014 a Tribunal officer called the applicant concerning the address on the Written Material Access Request because it was different to the existing address in the Tribunal’s CaseMate system. The applicant took the opportunity to enquire as to his Written Material Access Request. That enquiry, and the Tribunal officer’s response, is recorded in a casenote as follows:
He asked how long until he gets access to his documents. I said I couldn’t say for sure but more than likely next week. He said he has a hearing on Tuesday so can he have them by then. I said that may not be possible and that the Case Officer who is processing this is aware of the hearing date, but it may take more time.
CB 179.
On 27 October 2014 the Tribunal sent the RMOC Opinion to the applicant by email: Campbell Affidavit, annexure CAC 2 and CB 180 (CB 180 is the covering email only).
The Tribunal Hearing was three days later on 30 October 2014: CB 181-184.
The applicant was on notice that the issue before the Tribunal was whether he satisfied PIC 4005(1)(c)(ii)(A) of Schedule 4 to the Migration Regulations. The applicant was on notice that this was the issue by reason of:
a)the MOC Opinion (of 8 February 2013): CB 101-102;
b)the Further MOC Opinion (of 24 December 2013): CB 136-137; and
c)the Delegate’s Decision (of 21 February 2014): CB 139-148.
Whilst it is difficult to understand why it is that an applicant is not given a copy of any opinion of a MOC as a matter of course in the lead up to any Tribunal hearing, in this case (and it may be different in other cases) the circumstances were such that the failure to provide the RMOC Opinion until three days before the Tribunal Hearing made no practical difference to the Tribunal Decision. Essentially, that is because the RMOC Opinion was no different to the MOC Opinion and Further MOC Opinion in determining that the applicant did not meet the requirements of PIC 4005(1)(c)(ii)(A) of Schedule 4 to the Migration Regulations, and for the same reasons as expressed in the MOC Opinion and the Further MOC Opinion. In addition to being on notice as to the relevant issue, the Court notes that:
a)the applicant did receive the RMOC Opinion three days prior to the Tribunal Hearing;
b)the relevant content of, and outcomes arising from, the RMOC Opinion were put to the applicant by the Tribunal for the purposes of s.359AA of the Migration Act;
c)there appears to have been no complaint at the Tribunal Hearing concerning the late provision of the RMOC Opinion; and
d)there appears to have been no request for an adjournment of the Tribunal Hearing to deal with any issues arising from the late provision of the RMOC Opinion.
Even if the RMOC Opinion had been provided to the applicant earlier the Court considers that it would have made no difference to the ultimate outcome of the Tribunal Decision.
In the above circumstances there was no denial of procedural fairness for the purposes of s.357A of the Migration Act. Put differently, there was no practical injustice to the applicant, essentially for reasons set out at [36]-[37] above: Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1; (2003) 77 ALJR 699; (2003) 195 ALR 502; (2003) 72 ALD 613 at [37] per Gleeson CJ.
In the circumstances, ground 3 is not made out, and does not establish any jurisdictional error in the Tribunal Decision.
Conclusions and orders
The applicant has failed:
a)to make out any of his grounds of review; and
b)to establish jurisdictional error in the Tribunal Decision.
It follows that the Judicial Review Application must be dismissed, and there will be an order accordingly.
The Court will also order that name of the second respondent be changed to “Administrative Appeals Tribunal”: Tribunals Amalgamation Act 2015 (Cth), s.3, Sch.2.
The Court will hear the parties as to costs.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 11 November 2016
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