Minister for Immigration and Multicultural Affairs v Ma, Sharon
[1998] FCA 285
•31 MARCH 1998
FEDERAL COURT OF AUSTRALIA
MIGRATION - visa application - health criterion to be satisfied by member of visa applicant’s family unit - requirement to undergo assessment in relation to that criterion - whether such a requirement may be dispensed with after assessment actually undergone.
Migration Regulations, Sched 2, cl 103.227.
Nand v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 52 followed.
Minister for Immigration and Multicultural Affairs v Sharon Ma
Whitlam J
31 March 1998
Sydney (Heard at Melbourne)
| IN THE FEDERAL COURT OF AUSTRALIA | |
| VICTORIA DISTRICT REGISTRY | VG 450 of 1997 |
BETWEEN: | MINISTER FOR IMMIGRATION AND | |
AND: | SHARON MA | |
JUDGE: | WHITLAM J | |
DATE OF ORDER: | 31 MARCH 1998 | |
WHERE MADE: | SYDNEY (Heard at Melbourne) | |
THE COURT ORDERS THAT:
The decision of the Immigration Review Tribunal made on 14 July 1997 is set aside.
The refusal to grant visas to Khoo Aik Seng and Low Ah Hoon is referred to the Immigration Review Tribunal for further consideration.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
| IN THE FEDERAL COURT OF AUSTRALIA | |
| VICTORIA DISTRICT REGISTRY | VG 450 of 1997 |
BETWEEN: | MINISTER FOR IMMIGRATION AND |
AND: | SHARON MA |
JUDGE: | WHITLAM J |
DATE: | 31 MARCH 1998 |
PLACE: | SYDNEY (Heard at Melbourne) |
REASONS FOR JUDGMENT
This is an application by the Minister under s 476 of the Migration Act 1958 (“the Act”) to review a decision of the Immigration Review Tribunal (“the Tribunal”) made on 14 July 1997 remitting two applications for Parent (Migrant) (Class AX) visas for reconsideration in accordance with a direction that the applicants must be taken to have satisfied certain criteria for the visas. The essential background to the Tribunal’s decision may be briefly outlined.
Khoo Aik Seng, his wife Low Ah Hoon and their dependent daughter Dorothy Khoo are citizens of Singapore. On 22 December 1994 they applied to migrate to Australia. They were sponsored by the respondent, and Mr Khoo was the main visa applicant.
The criteria for a Class AX visa were set out in Part 103 of Schedule 2 to the Migration Regulations. Division 103.22 dealt with the criteria to be satisfied by Mr Khoo at the time of the decision whether to grant or to refuse to grant him such a visa. Clause 103.227 provided:
“103.227 (1) Each member of the family unit of the applicant who is an applicant is a person who:
(a)satisfies public interest criteria 4001 to 4006, 4009 and 4010; and
(b)if he or she has previously been in Australia, satisfies:
(i)in the case of an applicant who is an aged parent - special return criteria 5001, 5002, 5004, 5006 and 5008 to 5010; and
(ii)in the case of an applicant other than an aged parent - special return criteria 5001, 5003, 5005 and 5007 to 5010.
(2) Each member of the family unit of the applicant who is not an applicant is a person who:
(a)satisfies public interest criteria 4001 to 4004; and
(b)satisfies public interest criteria 4005 and 4006, unless the Minister is satisfied that it would be unreasonable to require the person to undergo assessment in relation to those criteria.”
The expression “member of the family unit” was relevantly defined by reg. 1.12 of the Migration Regulations as follows:
“1.12. (1) . . . a person is a member of the family unit of another person (in this subregulation called “the family head”) if the person is:
(a)a spouse of the family head; or
(b)a dependent child of the family head or of a spouse of the family head; or
(c)a dependent child of a dependent child of the family head or of a spouse of the family head; or
(d)a relative of the family head or of a spouse of the family head who:
(i)does not have a surviving spouse or any other relative (other than the family head) able to care for that relative in the relevant country; and
(ii)is usually resident in the family head’s household; and
(iii)is dependent on the family head; or
(e)a relative of the family head or of a spouse of the family head who:
(i)has never married or is widowed, divorced or separated; and
(ii)is usually resident in the family head’s household; and
(iii)is dependent on the family head.”
As a dependent child who was herself a visa applicant, Dorothy Khoo was covered by subclause 103.227(1). The public interest criteria referred to in clause 103.227 are set out in Schedule 4 to the Migration Regulations. This case is concerned with clause 4005 of that Schedule, which provided:
“4005. The applicant:
(a) both:(i)is free from tuberculosis or any other communicable disease of a fatal or serious nature that, in the opinion of a Commonwealth medical officer, is a threat to public health in Australia, and is not suspected of having contracted such a disease; and
(ii)if the applicant is a person from whom a Commonwealth medical officer 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 examination, has provided such an undertaking; and
(b)is free from any other disease or condition that, in the opinion of a Commonwealth medical officer, would be a danger to members of the Australian community; and
(c)is free of any disease or condition that, during the applicant’s proposed period of stay in Australia, would, in the opinion of a Commonwealth medical officer:
(i)require significant care or significant treatment (or both); or
(ii)require care or treatment (or both) involving the use of community resources in short supply; or
(iii)prevent the applicant from pursuing the applicant’s intended occupation (if any) in Australia; or
(iv)result in the applicant becoming a significant charge on public funds.”
That criterion itself falls within the definition of a “health criterion” in s 5(1) of the Act.
Dorothy Khoo was medically examined, and the opinion of a Commonwealth medical officer was that she did not meet the requirements of par 4005(c). The visa applications of all three family members were accordingly refused on 4 September 1995.
On 5 December 1995 the respondent applied for internal review of the decision to refuse to grant the visas. She gave the review officer two additional reports in respect of Dorothy Khoo, one from a consultant cardiologist dated 15 January 1996 and the other from an orthopaedic surgeon dated 25 January 1996. This material was referred for assessment to a migrant medical review officer, whose opinion dated 24 September 1996 was that Dorothy Khoo did not meet the requirements of par 4005(c). On 31 January 1997 the review officer affirmed the primary decision to refuse the visas because Dorothy Khoo failed to satisfy criterion 4005.
On 12 March 1997 the respondent’s solicitors lodged an application for review with the Tribunal. In their covering letter the solicitors informed the Tribunal that Dorothy Khoo withdrew her application for a visa to migrate to Australia. This meant that she was now covered by subclause 103.227(2).
The Tribunal made its decision without taking oral evidence. The relevant part of its statement required by s 368(1) of the Act may conveniently be set out in full:
“EVIDENCE
The visa applicant’s migration application included his spouse and his dependent daughter Dorothy Khoo. Whilst the visa applicant and his spouse were found to meet prescribed health criteria, Dorothy Khoo was found not to and for this reason the family’s application to migrate failed.
Dorothy Khoo is 32 years old and suffers from an intellectual disability and associated congenital health problems.
On 6 March 1997, the Tribunal was advised by the visa applicant’s representative that the visa applicant wished to withdraw Dorothy Khoo from the application to migrate to Australia.
Following a telephone preliminary meeting with the visa applicant’s representative on 8 July 1997, a further submission was made to the Tribunal on 9 July 1997. The submission confirmed that the Khoo family fully understood the implications of removing Dorothy from the migration application, namely, that she would not obtain permanent residence in Australia and further, that the family was making appropriate arrangements for Dorothy’s long term care. Essentially, the family intend to have Dorothy reside in Australia with them as a temporary resident under a medical treatment long stay visa.
The Tribunal notes that Dorothy Khoo meets the criteria for the grant of a medical treatment visa.
FINDINGS
The Tribunal acknowledges that Dorothy Khoo has been withdrawn from the application to migrate to Australia. However, subregulation 103.227(2)(b) requires non migrating members of a family unit to satisfy health criteria unless the Minister is satisfied that it would be unreasonable to require the person to undergo assessment in relation to that criterion.
The word ‘unreasonable’ is not defined in the Act or Regulations, nor in Departmental Policy.
The Macquarie Dictionary, 2nd revised edition, defines ‘unreasonable’ as: not reasonable; not endowed with reason; not guided by reason or good sense; not agreeable to or willing to listen to reason or sound judgment; exceed the bounds of reason; immoderate; exorbitant.
In the circumstances of this case, the Tribunal can not see any good sense or reason to require Dorothy Khoo to undergo assessment and therefore cause her parent’s migration application to fail.
Accordingly, the Tribunal finds that subregulation 103.227(2)(b) is satisfied.
Having regard to the evidence in the Departmental file, the Tribunal finds that Aik Khoo and his spouse satisfy all relevant criteria for the grant of a subclass 103 (parent) visa with the exception of those relating to assurance of support and health charges.
DECISION
The Tribunal remits this application with the direction that the applicant and his spouse satisfy all the criteria for the grant of a subclass 103 (parent) visa with the exception of those criteria in relation to assurance of support and health charges.”
The Tribunal’s finding “that subregulation 103.227(2)(b) is satisfied” sounds very odd. As a matter of construction, I do not see how it could be found under par 103.227(2)(b) that a person “satisfies” the specified public interest criteria unless that person has undergone assessment. Yet in this case the Tribunal purports to have dispensed with such an assessment. This means that the question whether that person meets the requirements of those criteria would not arise.
In fact, Dorothy Khoo had undergone assessment in relation to criteria 4005 and 4006, not once but twice. No consideration was given to the power available under par 103.227(2)(b) until she withdrew her application to migrate and the respondent’s application for review came before the Tribunal. At this stage the Tribunal did not ignore the adverse assessments but relied on the very fact that Dorothy Khoo did not meet the requirements of par 4005(c) in order to find that it “can not see any good sense or reason to require Dorothy Khoo to undergo assessment”.
The word “assessment” in par 103.227(2)(b) is not defined. Having regard to the contents of criterion 4005, it seems apt to cover an evaluation by a Commonwealth medical officer. The notion of requiring a person “to undergo assessment” suggests a step in the consideration of a visa application that necessarily takes place before the “assessment” under s 64(1) of the Act that the health criteria for the visa have been satisfied.
The flaw in the Tribunal’s approach in the present case emerges, in my opinion, if it is appreciated that the exempting power under par 103.227(2)(b) may only be exercised prospectively. To put it another way, once a member of the visa applicant’s family unit has actually undergone assessment in relation to criteria 4005 and 4006, the occasion cannot arise for the review officer or the Tribunal, stepping into the shoes of the Minister, to be “satisfied that it would be unreasonable” to require that person to undergo assessment. It cannot matter that here the assessment occurred because subclause 103.227(1) applied at an earlier stage in the consideration of Mr Khoo’s visa application. If there had been no such assessment, then the exempting power would still have been available on the review by the Tribunal. But that is not this case. The exempting power does not exist to undo the assessment. The conditional use of the subjunctive phrase “would be” may relate to the present or the future, but not to the past.
If I am wrong and it was open to the Tribunal in the circumstances of this case notionally not to require Dorothy Khoo to undergo assessment, then, in my opinion, the exercise of that power involved an error of law. Subclause 103.227(2) prescribes criteria for the grant of a visa to Mr Khoo. In doing so, it picks up the health criterion in clause 4005 and requires Dorothy Khoo to meet its requirements, unless the exempting power is exercised. The object of par 4005(c) appears plainly enough from its contents. Faced with the opinions of the two Commonwealth medical officers that Dorothy Khoo did not meet those requirements, the conclusion of the Tribunal was manifestly perverse. The primary importance of health criteria is acknowledged in the provisions of s 65(1) of the Act. The power under par 103.227(2)(b) does not exist to be exercised when it is known that a person is unable to satisfy the specified health criteria. A contrary construction would render the paragraph nugatory. The construction I favour accords with that adopted in Nand v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 52 by Moore J (at 55 and 56) in respect of a similar power under the Migration (1989) Regulations.
The Migration Regulations were amended with effect from 1 November 1995 by the insertion of a new Division 2.5A containing special provisions relating to health criteria. These amendments made the opinion of the medical officer decisive in determining whether a visa applicant or another person meets the requirements of those criteria. At the same time the language of clause 4005 was changed and consequential amendments were made to Part 103. However, the opinion of a Commonwealth medical officer always controlled the question whether a person met the requirements of par 4005(a) as in force at the time of Mr Khoo’s application. It was not open to the Tribunal to overcome the adverse assessments of Dorothy Khoo by purporting not to require her to undergo such an assessment.
Counsel for the respondent also submitted that par 4005(c) could have no operation in relation to Dorothy Khoo because there was “no proposed period of stay in Australia” in the case of a member of the family unit such as she was who, under subclause 103.227(2), was not an applicant. This point was not considered by the Tribunal. Miss Khoo was, of course, such an applicant on the two occasions when she was assessed by Commonwealth medical officers. I think that criteria 4005 must be given some meaning in the context of subclause 103.227(2). It is not necessary now, however, to consider what that is because, despite what the Tribunal said in its statement, it plainly never proceeded to consider whether Miss Khoo, in fact, satisfied criterion 4005, as required by par 103.227(2)(b). The submission may throw up facts for investigation before the Tribunal. It does not provide a basis for the Court in the exercise of its discretion under s 481 of the Act to refuse relief to the Minister in the light of the demonstrated error of law on the part of the Tribunal.
Accordingly, I shall make orders setting aside the decision of the Tribunal and referring the matter to the Tribunal for further consideration.
| I certify that preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam |
Associate:
Dated: 31 March 1998
| Counsel for the applicant: | A L Cavanough QC and S McLeish |
| Solicitor for the applicant: | Australian Government Solicitor |
| Counsel for the respondent: | K H Bell QC and L W Maher |
| Solicitor for the respondent: | Baker & Armstrong |
| Date of hearing: | 4 March 1998 |
| Date of judgment: | 31 March 1998 |
If the respondent opposes the award of costs against her, she is to serve written submissions in opposition to such award upon the applicant by 9 April 1998.
The applicant is to serve any written submissions in reply upon the respondent by 17 April 1998.
After 20 April 1998 the parties are to approach my Associate to have the matter re-listed for hearing on the question of costs.