Minister for Immigration v Schoeman
[2008] FMCA 671
•23 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MINISTER FOR IMMIGRATION v SCHOEMAN & ANOR | [2008] FMCA 671 |
| MIGRATION – Review of Migration Review Tribunal decision – Migration Regulation Schedule 2 subclass 309 – public interest criterion 4007 – application allowed. |
| Migration Act 1958 (Cth) Migration Regulations 1994 (Cth) |
| Applicant: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| First Respondent: | LIESL SCHOEMAN |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 672 of 2007 |
| Judgment of: | Hartnett FM |
| Hearing date: | 15 April 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 23 May 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms S.E. Moore |
| Solicitors for the Applicant: | Australian Government Solicitor |
| For the First Respondent: | Mrs Hawtrey (mother of Respondent) |
ORDERS
The application is allowed.
The decision of the Migration Review Tribunal handed down on 26 April 2007 be quashed.
There be no order as to costs against the respondents.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 672 of 2007
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Applicant
And
| LIESL SCHOEMAN |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
These reasons relate to an application for review by the Minister for Immigration and Citizenship ("the Minister") of a decision of the Migration Review Tribunal ("the tribunal") handed down on 26 April 2007.
The tribunal considered an application made by the first respondent for review of a decision of a delegate of the Minister. On 22 March 2006 the delegate had refused the first respondent's husband, Mr Andrew John Schoeman, a Partner (Provisional) (Class UF) visa because he failed to meet certain requirements of the visa.
The tribunal determined to remit Mr Schoeman's visa application to the Department of Immigration and Multicultural Affairs (as it then was) for reconsideration with a direction that he satisfied specific visa criteria.
On 24 May 2007 the Minister filed an application for review of the tribunal's decision. Subsequently, an amended application was filed, that amended application being filed on 3 December 2007. The ground on which the application is based is as follows:
The decision of the tribunal is vitiated by jurisdictional error because the tribunal exceeded its powers in the interpretation and application of the Regulations made pursuant to the Act.
PARTICULARS
The tribunal misconstrued the mandatory requirements to be satisfied by a visa applicant for a Partner (Provisional) (Class UF) visa when it waived the requirement for the visa applicant to meet clause 309.225 of Schedule 2, public interest criterion 4007.
The applicant seeks that the decision of the Migration Review Tribunal handed down on 26 April 2007 be quashed. The applicant does not seek an order for costs against the respondents.
HISTORY
Ms Schoeman was born in South Africa. She is a permanent resident of Australia, having emigrated to Australia with her parents on 2 September 1998. She married Mr Schoeman in South Africa on 31 August 1998 after being in a relationship with him since 1994. In May 2001 a daughter was born to Mr and Mrs Schoeman in Australia.
Prior to the birth of their daughter Mrs Schoeman spent most of her time in Australia and made trips to South Africa, and Mr Schoeman would also make trips to Australia. Since the birth of their daughter the Schoeman family have resided in South Africa. Mrs Schoeman's parents, Mr and Mrs Hawtrey continue to reside in Australia.
On 7 January 2003 Mr Schoeman applied to the minister's department for a visa. His wife was his sponsor. On 6 May 2003 the Australian High Commission in Pretoria (the high commission) wrote to Mr Schoeman and asked him to provide further information, including full health examinations and an assurance of support, by 27 June 2003.
On our about 26 June 2003 the high commission received a medical report relating to Mr Schoeman dated 26 May 2003. The conclusion reached in that report was:
PTB not entirely excluded, though felt unlikely.
The report was forwarded to the Australian Government Health Service ("AGHS").
On 7 July 2003 the high commission wrote again to Mr Schoeman and advised him that the AGHS had requested tuberculosis culture results, to enable them to make a recommendation concerning his health. The high commission asked Mr Schoeman to provide the information by 8 August 2003.
On or about 8 August 2003 the high commission received TB culture tests from the applicant, which were referred to the AGHS. On 14 August 2003 Mr Schoeman was found to meet the health requirement, with a health undertaking.
On 15 August 2003 the high commission sent another letter to Mr Schoeman advising him that the AGHS required him to complete and sign a health undertaking. The undertaking was to report to a health authority in the state or territory of intended residence in Australia for a follow‑up medical assessment. Such an undertaking is required for visa applicants who have evidence of exposure to tuberculosis or other diseases that may be of concern at their medical examination for an Australian visa.
On 8 September 2003 the high commission received the undertaking from Mr Schoeman. However, it had not been fully completed by him. It had not given the required undertaking by signing the form.
On or about 16 November 2003 the high commission assessed some of the paperwork provided by Mr Schoeman, which included a Form 28A - Discretionary Assurance of Support by his father‑in‑law, Hilton Craig Hawtrey. This paperwork was not correctly completed, and on 19 November 2003 the high commission sent Mr Schoeman a letter advising him that two questions on the form needed to be completed by Mr Hawtrey and that a certified copy of Mr Hawtrey's Australian citizenship certificate was required. A response was required by 9 January 2004.
No response was received. So on 22 July 2004 the high commission wrote again to Mr Schoeman asking him if he wished to proceed with the application. It advised him that if he intended to proceed it required in addition to the information requested in its 19 November 2003 letter, current police clearance certificates and current health examinations. The high commission advised Mr Schoeman in that letter that the police clearance and medicals previously provided to it had expired. The high commission required the information by 20 August 04. No health examination or any other outstanding information was received from Mr Schoeman.
On 22 December 2004 the principal migration officer at the high commission phoned Mr Schoeman and asked whether he still wished to continue with his application. According to a case note of this conversation, Mr Schoeman stated that he did not know why he had to do the medicals again, and he was advised that certain requirements had validity dates and where they had expired, there had to be a re-request of certain things. Further, the case note recorded that Mr Schoeman was advised he could either consider withdrawing his application or, if he wished to continue, a final request for information would be sent to him, which would have to be provided within the time frame; otherwise refusal was likely. The note also recorded that Mr Schoeman undertook to contact the officer the following day. The following day, having received no call from Mr Schoeman, the officer telephoned Mr Schoeman and left a message for him to call.
On 22 March 2006 the delegate found that Mr Schoeman had not met the requires of the visa and therefore refused the visa. The high commission sent Mr Schoeman a copy of that decision.
On 23 June 2006 Mrs Schoeman applied to the tribunal for review of the delegate's decision. A hearing was held on 29 January 2007 and Mr and Mrs Schoeman appeared via a telephone link‑up. Mrs Schoeman's parents, Mr and Mrs Hawtrey, attended in person and gave evidence. Mr Schoeman gave evidence that the reason he did not undergo another medical examination was because he did not receive notification that he was required to do so.
The above background was accurately and succinctly set out by counsel in her Contentions provided to the Court.
LEGISLATION
Section 31(1) of the Migration Act 1958 (Cth) ("the Act") provides that there are to be prescribed classes of visas. Section 31(3) provides that the Migration Regulations 1994 (Cth) ("the Regulations") may prescribe criteria for a visa or visas of a specified class.
Section 65(1)(a) of the Act provides that, after considering a valid application for a visa, if satisfied that the health criteria and other criteria prescribed by the Act and the Regulations have been satisfied, the minister is to grant the visa. Section 65(1)(b) provides that if the minister is not so satisfied, he is to refuse to grant the visa.
At the time the applicant applied for the visa the criteria were prescribed by the Regulations Schedule 2 subclause 309. They provided that at the time of decision the applicant was to satisfy the criteria at subclause 309.225. Clause 309.225 required that an applicant "satisfies public interest criteria 4001, 4002, 4003, 4004, 4007 and 4009".
This application concerns criterion 4007. The requirements of that criterion are set out in Schedule 4 of the Regulations. They are cumulative.
Criterion 4007 states that:
(1) The applicant:
(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)subject to subclause (2), is not a person who has a disease or condition to which the following subparagraphs apply:
(i) the condition is such that a person who has it would be likely to:
A.meet the require health care or community services; or
B.meet the medical criteria for the provision of a community service;
during the period of the applicant's proposed stay in Australia;
(ii) provision of the health care or community services relating to the disease or condition would be likely to:
A.meet the require health care or community services; or result in a significant cost to the Australian community in the areas of health care and community services;
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)if the applicant is a person from whom a medical officer of the Commonwealth 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 assessment, the applicant has provided such undertaking.
(2)The Minister may waive the requirements of paragraph (1)(c) if:
(a)the applicant satisfies all other criteria for the grant of the visa applied for; and
(b)the Minister is satisfied that the granting of a visa would be unlikely to result in:
(i) undue cost to the Australian community; or
(ii) undue prejudice to the access to health care or community services of an Australian citizen or permanent resident.
Regulation 2.25A provides that 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 meets the requirements of paragraphs 4007(1)(a), 4007(1)(b) and 4007(1)(c).
CONSIDERATION
The issue before the court is not whether or not the couple have a mutual commitment to a shared life as husband and wife. They clearly do. The tribunal found the evidence by the visa and review applicants to be frank, consistent and credible and accepted all of their material claims. This finding of the tribunal is accepted by the applicant.
The basis of the delegate's decision was that Mr Schoeman had not provided outstanding information and therefore the delegate was not able to determine that Mr Schoeman satisfied criterion 4007.
The tribunal made findings that Mr Schoeman did not undergo another medical examination because he did not receive the notification that he was required to get such an examination. The tribunal said in its decision (page 5):
I am satisfied that the reason that the visa applicant did not undergo another medical examination was because he did not receive notification that he was required to do so. In light of the fact that the visa applicant underwent such an examination in September 2003 and on doing so met the health criteria, I waive the requirement for the visa applicant to meet PIC (public interest criterion) 4007.
The tribunal further said:
The visa for which the visa applicant is applying is temporary in nature; there is no information indicating that he may not meet any of the health criteria (in fact his most recent health assessment indicates to the contrary) and in the circumstances it would be unreasonable to require another health examination prior to granting the visa. There is no evidence that waiving this criteria in the case of the visa applicant would result in an undue cost to the Australian community or undue prejudice to the access to health care of people in Australia.
Thus, the tribunal remitted the application to the department with a direction that Mr Schoeman did satisfy clause 309.225 of Schedule 2 of the Regulations.
This court finds that the tribunal did commit a jurisdictional error in its decision when it waived the requirement for Mr Schoeman to meet criterion 4007. The structure of the Act is such as to give a central role to the prescription of criterion necessary to be satisfied for the grant of a visa. Sections 31 and 65 of the Act, to which I have referred, reflect that.
Mr Schoeman had not satisfied either the health criteria or the other criteria, namely clause 309.225, of the visa. Clause 309.225 required that he satisfy public interest criterion 4007. He had not satisfied that criterion. He was not able to do so in the absence of current health examination results. There was no power in the tribunal to waive the requirements of 4007(1)(a), 4007(1)(b) or 4007(1)(d). Only the requirements of 4007(1)(c) may be waived by the decision-maker. Even if the tribunal had confined its waiver to the requirements of 4007(1)(c), and it clearly did not, it would still have fallen into error as it failed to make any assessment as required by criterion 4007(2). It did not have any current health assessment to allow it to do so.
It was for Mr Schoeman to provide all the material to the tribunal that he wished to rely on to show that he satisfied the criteria for the grant of the visa. The tribunal was then required to assess whether that material was sufficient to satisfy it that those criteria had been met.
By waving the requirements of 4007, the tribunal did not carry out mandatory steps in the process of assessing the visa criteria. In taking that approach, the tribunal committed a jurisdictional error by exceeding its powers. The court will accede to the application before it and grant the relief sought by the Minister.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Deputy Associate: Kate Gray
Date: 23 May 2008
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