Mitra v Minister for Immigration

[2016] FCCA 3043

FEDERAL CIRCUIT COURT OF AUSTRALIA

MITRA & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3043

Catchwords:
MIGRATION – Application for review of decision of Migration Review Tribunal (Tribunal) affirming decision to cancel Subclass 475 (Skilled – Regional Sponsored) visa on the ground that the visa holder failed to comply with s.104 of the Migration Act 1958 (Cth) (Act) by failing to inform an officer of the Department of Immigration and Border Protection of a change in circumstances that rendered incorrect answers given in the application for visa – whether the Tribunal acted unreasonably in not granting the applicant further time to obtain medical opinion – whether the Tribunal failed to consider the circumstances in which the applicant failed to comply with s.104 of the Act – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.101, 102, 103, 104, 104(1), 105, 107, 109(1), 348, 353, 360(1), 363(1)(b)
Migration Regulations 1994 (Cth), reg.2.41

Cases cited:
Minister for Immigration and Border Protection v Eden [2016] FCAFC 28
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332

First Applicant: SIMA MITRA

Second Applicant: ARUP KUMAR RAHA

Third Applicant: SHREYA RAHA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2709 of 2014

Judgment of: Judge Manousaridis

Hearing date: 29 October 2015

Delivered at: Sydney

Delivered on: 25 November 2016

REPRESENTATION

Solicitors for the Applicant: Mr M Jones of Parish Patience Immigration Lawyers

Counsel for the Respondents: Mr T Reily

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The second and third applicants are removed as parties.

2. The Administrative Appeals Tribunal is substituted for the Migration Review Tribunal as the second respondent.

3. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2709 of 2014

SIMA MITRA

First Applicant

ARUP KUMAR RAHA

Second Applicant

SHREYA RAHA

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. Two issues arise on this application for judicial review. The first is whether the second respondent (Tribunal) acted unreasonably in refusing the applicant further time to obtain a medical opinion before making its decision. The second is whether, in affirming the decision of a delegate of the first respondent (Minister) to cancel, pursuant to s.109(1) of the Migration Act 1958 (Cth) (Act), a Subclass 475 (Skilled – Regional Sponsored) visa (Visa) that was issued to the first applicant (applicant), the Tribunal confused the question whether it had power to cancel the Visa with the question of whether, assuming it did have power, it should have affirmed the delegate’s decision to cancel the Visa.

Background

1. The applicant, who is a national of Bangladesh, applied for the Visa on 16 August 2010. On 1 August 2013, before the Visa was granted, the applicant was medically assessed in Bangladesh as “A Grade”. The Visa was granted on 11 September 2013. The applicant, together with her husband and their child (who, the parties agree, have been incorrectly made parties to this application) entered Australia on 29 March 2014.

2. Shortly after her entry into Australia, the applicant presented to Liverpool Hospital in Sydney for a one-off dialysis treatment. The applicant then travelled to Albury-Wodonga. On 3 April 2014 the applicant presented to Albury Hospital and indicated she expected to undergo dialysis regularly by the local renal dialysis service. That led Dr Mah, who I infer was the Chief Executive Officer of Albury Wodonga Health (CEO) to inform the Minister of a number of concerns he had about the applicant’s case.

3. On 26 May 2014 a delegate of the Minister sent by email to the applicant a letter (Notice) which had as its subject “Notice of intention to consider cancellation of Skilled (Provisional) (class VF) Skilled – Regional Sponsored (subclass 475) visa under section s109 [sic] (Incorrect Information) of the Migration Act 1958”.[1] In broad terms, s.109(1) of the Act provides that the Minister may cancel a visa if, after considering a response of the visa holder to a notice the Minister has issued under s.107 of the Act giving particulars of the visa-holder’s possible non-compliance with ss.101, 102, 103, 104 or 105 of the Act, the Minister decides there was non-compliance by the visa holder in the manner prescribed by the notice. The Notice was intended by the delegate to be a notice pursuant to s.107 of the Act.

   [1] CB10-19

4. Relevant to the proceedings before me is s.104(1) of the Act which provides:

   If circumstances change so that an answer to a question on a non-citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.

   The Notice the delegate issued to the applicant alleged the applicant breached s.104 of the Act because the applicant failed to inform an officer of the Department of changes in her health.

5. The Notice alleged, among other things, that the applicant breached s.104 of the Act because the applicant failed to inform an officer of the Department of changes to her health after the day she lodged her application for the Visa. The delegate referred to the applicant’s having presented herself for a medical examination on 30 July 2013 in Bangladesh; that the outcome of that medical examination was that the applicant met the health requirements for the Visa; that the applicant was granted the Visa on 11 September 2013; and that the applicant had informed the delegate that the applicant had become aware of her medical condition on 27 October 2013. The delegate also set out what the “CMO AWH Dr Mah” said the applicant said, namely, that “from one week after 30 July 2013” the applicant was aware that an answer she gave in her application for the Visa was incorrect due to her new circumstances.[2]

   [2] CB14

6. The applicant responded by email sent on 8 June 2014. The applicant said she was unaware of a “Change of Circumstances notifications after the visa grant”; in October 2013, after she was granted the Visa, she suddenly got a high fever and had other symptoms; the applicant was diagnosed with diseased kidneys, and she underwent dialysis; the applicant knew she had to bear treatment expenses in Australia until she obtained permanent residency, so she attempted to gather information on the costs of dialysis in Australia through the Internet, but found no information; and the applicant assumed that the cost of dialysis would be around A$100. The applicant gave details of her and her family’s personal situation; that her husband, a doctor qualified to practice in Bangladesh, intended to sit for all tests to become registered in Australia and work as a rural general practitioner; and that, when that occurs, the applicant will be able to pay her medical bills in relation to her dialysis.

7. By letter dated 14 June 2014 the delegate cancelled the Visa.[3] The delegate found the applicant failed to comply with both s.101 and s.104 of the Act.

   [3] CB22-29

Before the Tribunal

1. The applicant appeared before the Tribunal on 25 July 2014. It appears she did so by telephone. The applicant confirmed she first received dialysis in Bangladesh on 15 October 2013; that, up to the time she left Bangladesh, she received dialysis “once or twice” a week; and that she was aware before she arrived in Australia that she would need to undergo dialysis in Australia.

2. After the Tribunal completed its questioning of the applicant, the applicant’s representative requested more time “for my client to do a proper medical assessment on her present medical conditions”.[4] The basis of that request was that, although there was before the Tribunal a letter written by Dr Mah, it was biased because Albury Wodonga Health had a significant financial interest in the matter. The representative said he requested “more time for my client to have a proper . . . unbiased medical assessment . . . [a]bout her present medical conditions so we know exactly how much – at least an unbiased view on how much the costs [are] going to be or on what sort of treatment she may require in the future”.[5]

   [4] T13.15. A transcript of the hearing before the Tribunal is annexure “A” to the affidavit of W David, 15.10.2015.

   [5] T13.15-40

3. When asked how much time was required, the representative could not say, but suggested the Tribunal could be updated. The Tribunal member stated:[6]

   I’ll have to consider that. You can find out perhaps and let me know how much time it will take to do an assessment. I wouldn’t expect it will take longer than a week really. Her condition is probably quite obvious . . . And she’s had medical treatment all along . . . She should have some up to date medical reports . .  . Well you’ll need to let me know what the situation is because her visa cancellation, it’s quite critical for me to ensure that it’s dealt with in a timely manner.”

   [6] T14.20-35

4. By letter dated 30 July 2014, the applicant’s legal representative forwarded to the Tribunal a number of documents.[7] One was a document confirming an appointment by the applicant to see a consultant nephrologist on 29 October 2014.[8] In his covering letter, the applicant’s representative said “it is very difficult to obtain medical specialist’s appointments and please do allows a reasonable period of time for Ms Mitra to obtain full and unbiased medical report from Dr Auwardt”.[9]

   [7] CB63

   [8] CB64

   [9] CB63

5. By letter dated 31 July 2014 the Tribunal purported to provide particulars of information which, subject to the applicant’s comments, it considered would be the reason, or part of the reason, for affirming the decision under review.[10] The information consisted of the following:

   [10] CB91

   a)Information contained in notes of a discussion between a Senior Medical Officer of the Department of Immigration and Border Protection (Department) and Dr Mah in April 2014. The notes recorded the following:

   i)The applicant said she was well until a week after the immigration health examination on 30 July 2013, and a diagnosis of renal failure was made and the applicant underwent ongoing dialysis in Bangladesh.

   ii)The applicant informed nursing staff that she travelled to Australia because the standard of care in Dhaka for renal failure was not good.

   iii)The applicant would likely require further care at a tertiary referral centre in Melbourne, and will require a transplant soon.

   iv)Medical opinion was that the applicant had symptoms of renal failure at the time of the applicant’s immigration health examination in July 2013.

   v)The estimated cost for treatment is more expensive in rural areas due to outsourcing pathology and visiting medical officers are not specialists, and the applicant had already stated she could not pay the bills.

   b)According to a letter dated 12 May 2014 from the CEO of Albury Wodonga Health to the Minister, the applicant presented at Albury Hospital on 3 April 2014 indicating she was expecting to be dialysed regularly by the renal dialysis service.

   c)Because the applicant is not eligible for Medicare, the cost per treatment is conservatively estimated to be $1,000 per treatment, and that the applicant was currently requiring twice weekly dialysis, but the applicant said she can only pay $50 a month.

   d)The CEO had raised the following concerns:

   i)The cost of the applicant’s treatment is considered exorbitant for the health service because the applicant has indicated she has no capacity to pay or intent to meet her financial obligations.

   ii)The estimated annual cost of care is $120,000, which will place a drain on the established budget, and there potentially will be a multiple number of local residents who will not receive elective surgery.

   iii)The applicant did not provide a detailed clinical history to Albury Hospital.

6. The letter noted the information is relevant because it may lead the Tribunal to find the applicant was aware of a serious health condition before she entered Australia, which meant that answers the applicant gave in her visa application were no longer correct, and therefore the applicant may not have complied with s.104 of the Act.

7. The Tribunal’s letter also addressed the applicant’s request for an adjournment. The Tribunal said:[11]

   At the hearing, it was requested that additional time be allowed to obtain a medical assessment from a specialist. The Tribunal notes that you have made an appointment with a nephrologist in Wodonga, Dr Russel Auwardt, for 29 October 2014. The Tribunal has considered your request but has decided not to adjourn the review to allow you to obtain a specialist opinion as to the likely costs involved in your care.

   [11] CB93

8. The letter stated the applicant had until 14 August 2014 to respond. And the applicant did so by her legal representative’s letter dated 14 August 2014.[12] The representative stated, among other things, that there is no indication the CEO of Albury Wodonga Health who had given the cost estimate is a nephrologist or a medical officer. The representative further stated that, given the CEO’s costs estimate was given on its behalf, Albury Wodonga Health “has vested financial interests”, and that “it is probable that his assessment is far from accurate and biased”.

   [12] CB94

9. By letter dated 20 August 2014 the Tribunal invited the applicant’s representative to provide submissions why “it is necessary for these medical assessment(s) and how it is relevant by 22 August 2014”.[13] The applicant’s representative responded by letter dated 22 August 2014.[14] The letter stated:

   In reply to the Tribunal’s letter dated 20 August 2014, we once again reiterate that the fact there is no current independent medical assessment done by a nephrology expert nor a medical officer of the commonwealth on Ms Mitra’s condition as the only assessment was done by Albury Wodonga Health which is obviously biased against Ms Mitra and should not be relied upon.

   [13] CB98

   [14] CB99

10. On 25 August 2014 the applicant’s representative was informed the Tribunal had considered the representative’s request contained in his letter dated 22 August 2014, but the Tribunal would be proceeding to a decision. The Tribunal made its decision on 1 September 2014.

Tribunal’s decision

1. The Tribunal was satisfied the delegate had reached the state of mind necessary for him have issued the Notice under s.107 of the Act, and that the Notice complied with s.107 of the Act. The issue the Tribunal considered it had to decide was whether there was non-compliance in the manner alleged in the Notice.

2. After noting the respects in which the Notice alleged the applicant had failed to comply with s.101 and s.104 of the Act, the Tribunal referred to the applicant’s evidence that she only became aware of her kidney disease in October 2013, and that she had commenced dialysis after she became so aware. The Tribunal also referred to the applicant’s evidence that, before she came to Australia, she knew she had to bear her own treatment expenses until she obtained permanent residency, and that she believed it would only cost $100 per treatment.[15] The Tribunal was satisfied the applicant failed to comply with s.104 of the Act, but it found there was insufficient evidence to make a finding about whether there had been non-compliance with s.101 of the Act.[16]

   [15] CB106, [21]

   [16] CB107, [25]-[26]

3. The Tribunal then considered the applicant’s representative’s submission that the cost of care estimated by Albury Wodonga Health was biased, and request for additional time to obtain a nephrologist’s opinion. The Tribunal said it did not consider it to be necessary or relevant to be provided with a specialist’s opinion in this case. That was so because:[17]

   a)There was no dispute that the applicant has renal failure and requires dialysis, currently two times a week.

   b)The applicant’s own evidence was to the effect that she was aware before arriving in Australia of her condition, and she did not inform the Department of this before or after she arrived in Australia. Whether or not the nephrologist “would be in a position to ascertain the likely date on which the symptoms may have first appeared is of no direct relevance to s.104, which is the ground of cancellation”.

   c)The hospital in which the applicant is receiving her dialysis treatment for her kidney disease is in the best position to advise of the costs involved in providing these services to her; there was, therefore, no basis for the submission that the hospital is biased about the costs.

   d)There appeared to have been no basis for the submission that Albury Wodonga Health is biased as to costs, it having been noted the applicant was charged $2,200 for the dialysis treatment she received in Liverpool Hospital.

   [17] CB107, [27]

4. The Tribunal also referred to the applicant’s request for time to obtain an opinion from a Medical Officer of the Commonwealth. The Tribunal said it did not consider that relevant to the issue it had to determine because the issue was not whether the applicant satisfied the health criterion for the grant of the Visa; the issue was whether the grounds for cancellation had been made out.[18]

   [18] CB107-CB108, [27]

5. The Tribunal then considered whether, having found the applicant did not comply with s.104 of the Act, the Tribunal should, in the exercise of its discretion, affirm the delegate’s decision to cancel the Visa. The Tribunal referred to the necessity of having to consider the applicant’s response to the Notice, and to any prescribed circumstances. Such circumstances have been prescribed under reg.2.41 of the Migration Regulations 1994 (Cth), although the Tribunal noted that those circumstances do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case.[19] The Tribunal also referred to that part of the Department’s Procedural Advice Manual that concerns the exercise of visa cancellation powers. In particular, the Tribunal noted the relevance of considering whether the Visa would have been granted had the correct information been given, and whether there are persons in Australia whose visa would or may be automatically cancelled under s.140 of the Act if the visa in question is cancelled.[20]

   [19] CB108, [30]

   [20] CB109, [31]

6. The Tribunal then made the following findings:

   a)Had the applicant informed the Department of what she became aware of her condition before she arrived in Australia, the applicant would not have been immigration cleared. It is likely the Visa would have been cancelled before the applicant’s entry into Australia.[21]

   b)The applicant chose not to inform the Department of what she became aware about her illness because it was likely that she and her family would not be permitted to enter Australia.[22]

   c)The applicant has not made any contribution to the community, but has rather placed a strain on the regional health system by seeking ongoing treatment from Albury Hospital in circumstances where she has been unable or unwilling to pay the costs involved in her treatment.[23]

   d)The Tribunal was not satisfied the applicant’s husband will be unable to find work in Bangladesh because of his age or ethnicity, because the applicant’s husband was working up to the time the applicant and her husband left Bangladesh.[24] Nor did the Tribunal accept the applicant would be unable to work because of her age and ethnicity. On her evidence, the applicant had been working in Bangladesh before she arrived in Australia.[25] The Tribunal did not accept the applicant would be unable to obtain dialysis in Bangladesh; dialysis is available in Bangladesh, and the applicant received dialysis before she came to Australia. The Tribunal accepted it was likely that the treatment in Bangladesh is not of the same standard as in Australia, but that consideration did not outweigh the reasons for cancelling the Visa.[26]

   e)The Tribunal considered the interests of the applicant’s daughter, who would be affected by the cancellation of the Visa. Although the Tribunal noted the applicant’s daughter has been attending school in Albury, and appears to have settled into the school, the Tribunal considered that the best interests of the daughter would be to return to Bangladesh where she had spent most of her life attending school regularly, and had developed friendships as well as having the support of her extended family.[27]

   f)The Tribunal did not accept assertions made, for the first time at the hearing, about the plight of Hindus in Bangladesh. The Tribunal noted that the circumstances of the applicant and her husband were not depressed, and that they had lived comfortably in Dhaka where the daughter went to school and had both been employed.[28]

   [21] CB109, [32]

   [22] CB109-110, [33]

   [23] CB110, [36]

   [24] CB110, [37]

   [25] CB110-111, [37]

   [26] CB111, [37]

   [27] CB111-112, [38]

   [28] CB112, [39]

1. The Tribunal, therefore, affirmed the delegate’s decision to cancel the Visa.

Unreasonably refusing adjournment

1. The first ground of application is as follows:

   The Tribunal acted unreasonably in refusing to wait for a further medical report before making its decision.

   Particulars

   A major issue in the case was whether the estimated cost of care for the First Applicant was exaggerated. The Applicant gave evidence of an appointment to see and [sic] independent specialist and requested the Tribunal to await the specialist’s report before making a decision. The Tribunal unreasonably declined to do so.

2. In her written submissions, the applicant makes a number of points. The first is that the applicant’s intention in seeking a further medical opinion was to obtain expert opinion about both the precise nature of the applicant’s condition, and the range of costs in the circumstances.[29] Second, although the applicant’s representative claim that the CEO was biased may have been an overstatement, it was clear the CEO was not happy about the situation, and therefore would have had a “vested interest” in not providing an unbiased opinion about the likely costs. In those circumstances “a second opinion with respect to the costs from an expert in the field who might have had knowledge of other available services could not have reasonably been discarded before it had been provided”.[30] Third, the proceeding was undertaken in “remarkably short order”.[31] The applicant relies on the Tribunal member’s having stated during the hearing that it was “quite critical” for the Tribunal member “to ensure that it’s dealt with in a timely manner”,[32] and to published statistics of the Tribunal which shows that the average time taken by the Tribunal to dispose of matters was 255 days, whereas the Tribunal in this case disposed of the matter within 74 days.[33]

   [29] Outline of submissions for the Applicant, [18]

   [30] Outline of submissions for the Applicant, [18]

   [31] Outline of submissions for the Applicant, [19]

   [32] Outline of submissions for the Applicant, [19]

   [33] Outline of submissions for the Applicant, [19]

3. The Minister, on the other hand, submits there is no rational basis to suggest that the CEO’s assessment of the likely costs of the applicant’s treatment was inaccurate; nor is there any rational basis for suggesting that a second opinion from a specialist would be likely to afford a more accurate assessment. Further, the costs of the dialysis were not a “major issue” for the Tribunal, as claimed in the particulars to ground 1.[34]

   [34] First Respondent’s Written Submissions, [6]

4. Whether or not, in any given case, the exercise of a power is unreasonable “will depend on the application of the principles which emerge from” Minister for Immigration and Citizenship v Li,[35] “and the earlier authorities discussed in it”.[36] Assessing whether a decision is legally unreasonable requires an evaluation of the decision with a view to determining whether, having regard to the subject matter, scope, and purpose of the relevant statutory power, the decision possesses one or more of the qualities conveyed by such words or expressions as ““plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, and “obviously disproportionate””.[37] If the court concludes the decision possesses one or more of these attributes, the decision will be held to be legally unreasonable.[38] Where the decision which it is claimed to be unreasonable is supported by reasons, reasonableness should be assessed both by reference to the actual reasoning the decision-maker adopted in reaching the decision, and the outcome of the decision.[39] In those circumstances, the decision will be unreasonable if it lacks an intelligible justification; and the intelligible justification “must lie within the reasons the decision-maker gave for the exercise of the power”.[40]

   [35] [2013] HCA 18; (2013) 249 CLR 332

   [36] Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 at [42]

   [37] Minister for Immigration and Border Protection v Eden [2016] FCAFC 28 at [65]

   [38] Minister for Immigration and Border Protection v Eden [2016] FCAFC 28 at [65]

   [39] Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 at [47]

   [40] Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 at [47]

5. In applying these principles, I must first identify the subject matter, scope, and purpose of s.363(1)(b) of the Act. The subject matter is the adjournment of the review from time to time. The scope and purpose of that power must be assessed at least in the context of Part 5 of Division 5 of the Act. Three provisions are of particular relevance. Fundamental is the power conferred by s.348 of the Act, which requires the Tribunal to review an application for review that has been properly brought before it. Next is s.360(1) of the Act, which requires the Tribunal to invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. Finally, there is s.353 of the Act which, at the time the Tribunal determined the application, required that the Tribunal, in carrying out its functions under the Act, “pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick”.

6. Next, there are the reasons (Relevant Reasons) the Tribunal gave for not granting the applicant additional time to enable her to obtain an opinion from a nephrologist. These are the absence of any issue about whether the applicant had renal failure that required dialysis two times a week, the absence of any issue that the applicant was aware of her need for dialysis before she entered the country, the view that the CEO of Albury Wodonga Health, being the organisation that would be providing dialysis, was in the best position to assess the costs of providing the service, and there not appearing to be any basis for submitting Albury Wodonga Health’s assessment of costs was biased, given that the applicant had been invoiced $2,200 for the dialysis provided to her by Liverpool Hospital.

7. In my opinion, it was reasonably open to the Tribunal, when considering whether to grant the applicant time to obtain an expert opinion of a nephrologist, to consider whether such opinion was relevant or necessary; and, when considering whether a nephrologist’s opinion was relevant or necessary, it was reasonably open to the Tribunal to consider each of the Relevant Reasons relevant to whether an opinion from a nephrologist was either relevant or necessary to the issues it had to determine. The Tribunal’s conclusion that such opinion was not necessary or relevant was one that was within the range of decisions it was reasonably open to the Tribunal to make having regard to those matters. Stated another way, the Relevant Reasons on which the Tribunal relied for not granting the applicant further time to obtain a nephrologist’s opinion manifest an intelligible justification for not granting the applicant further time. Each of the Relevant Reasons on which it relied was relevant to the proper exercise of the power conferred by s.363(1)(b) of the Act. It was reasonably open to the Tribunal to conclude, as I find it did conclude, on the basis of the Relevant Reasons, that the opinion of a nephrologist was neither necessary nor relevant.

8. That the Tribunal made this decision within a time that appears to have been substantially shorter than the average time cases before it were then disposed is, in my opinion, irrelevant. It is not reasonably open to me to infer from the time within which the Tribunal made its decision on the applicant’s case that the Tribunal was unduly influenced by a desire to dispose of the matter quickly and, for that reason, failed to give weight or proper weight to matters to which it ought to have given. Further, there is nothing in the material before me to indicate the average time for disposing of a matter before the Tribunal offers any meaningful criterion for measuring whether the Tribunal acted with due or undue haste.

9. Ground 1, therefore, fails.

Ground 2

1. The second ground of application is as follows:

   The Tribunal confused the question of whether it had power to cancel the visas with the question of whether it should exercise that power.

   Particulars

   The Tribunal considered that question of when the First Applicant became aware of her condition was not relevant to s104 of the Act, which it incorrectly referred to as “the ground for cancellation”, because she had admitted that she was aware of it before arriving in Australia. The Tribunal failed to consider that the date of becoming aware of the condition was also relevant to its discretion whether to cancel the visa.

2. This ground relies on one of the reasons on which the Tribunal relied for not granting the applicant further time to obtain a nephrologist’s opinion, that reason being that “whether or not the nephrologist would be in a position to ascertain the likely date of when symptoms may have first appeared is not of direct relevance to s.104, which is the ground of cancellation”.[41] The applicant submits this indicates the Tribunal did not consider relevant when the applicant became aware of her true condition and that, for that reason, the Tribunal did not consider the circumstances in which the applicant’s non-compliance with s.104 of the Act occurred.

   [41] CB107, [27]

3. The Tribunal did consider when the applicant became aware of the change in her medical condition, and the reasons why the applicant did not communicate those changes in circumstances to the Department. The Tribunal did so in paragraph 33 of its reasons for decision. In that paragraph, the Tribunal first identified the applicant’s evidence that she had become aware she would require dialysis in Australia. Having already, in effect, accepted that the applicant became aware of that matter after she underwent a medical examination on 1 August 2013 in Bangladesh,[42] the Tribunal recorded the applicant’s evidence that she did not know she had to inform the Department of the change to her medical condition. The only conceivable reason the Tribunal recorded this part of the applicant’s evidence is that it considered it relevant to the circumstances of the applicant’s not having informed the Department of what she knew, contrary to s.104 of the Act. The issue the Tribunal then considered is why the applicant did not communicate the changes in her medical condition of which she said she had become aware. The applicant said she was not aware of her obligation to do so. The Tribunal, for reasons which the applicant does not challenge, did not accept the applicant’s explanation, but instead found the applicant did not inform the Department of the changes in her medical condition, not because she was unaware of her obligation to do so, but because “it was likely that she and her family would not be permitted to enter Australia”. [43]

   [42] CB107, [25]

   [43] CB109-110, [33]

4. That is a finding relating to the circumstances in which the applicant failed to inform an officer of the Department of changes in circumstances that occurred after the applicant applied for the Visa which rendered incorrect an answer the applicant gave to a question in her application for the Visa. It is a finding to the effect that the applicant wilfully decided not to provide information she ought to have provided to the Department.

5. Ground 2, therefore, fails.

Conclusion and disposition

1. I propose to order that the application be dismissed. I also propose to order that the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent, and that the second and third applicants be removed as parties. As I have already noted, the applicant and the Minister agreed the second and third applicants ought not to have been joined as applicants.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 25 November 2016