Mohamed Ali v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 34
•17 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mohamed Ali v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 34
File number: PEG 6 of 2024 Judgment of: JUDGE LADHAMS Date of judgment: 17 January 2025 Catchwords: MIGRATION – application for judicial review of a decision made by the Administrative Appeals Tribunal affirming a decision to refuse to grant the applicants employer nomination (permanent) visas – whether the Tribunal misunderstood or misapplied the test in Public Interest Criterion 4007(2) – whether the Tribunal constructively failed to exercise its jurisdiction – jurisdictional error established – writs issued. Legislation: Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth) ss 359AA, 476, 477
Migration Regulations 1994 (Cth) Sch 2 cl 186.224, Sch 4 PIC 4007
Cases cited: Applicant Y v Minister for Immigration and Citizenship (2008) 100 ALD 544; [2008] FCA 367
Bui v Minister for Immigration and Multicultural Affairs (1999) 85 FCR 134
Dang v Administrative Appeals Tribunal (2019) 273 FCR 87; [2019] FCAFC 220
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Division: Division 2 General Federal Law Number of paragraphs: 79 Date of hearing: 7 November 2024 Place: Perth Counsel for the Applicants: Mr M Guo Solicitor for the Applicants: Estrin Saul Lawyers Counsel for the First Respondent: Ms A Martyn Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: MinterEllison ORDERS
PEG 6 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SAFIULLA MOHAMED ALI
First Applicant
SUHANA NASREEN SAFIULLA
Second Applicant
MOHAMED THARIQ ALI SAFIULLA (and another named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
17 JANUARY 2025
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision of the Administrative Appeals Tribunal made on 29 November 2023 (case number 2100408).
2.A writ of mandamus issue directed to the Administrative Review Tribunal requiring it to reconsider the matter according to law.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
The applicants are non-citizens who applied for Employer Nomination (Permanent) visas (employer nomination visas). The first applicant was the primary visa applicant and the second, third and fourth applicants, who are respectively the daughter, son and wife of the first applicant, were included in the visa application as members of the same family unit. A delegate of the Minister refused to grant the applicants employer nomination visas and that decision was affirmed by the Administrative Appeals Tribunal (Tribunal) on 29 November 2023. The applicants seek judicial review of the Tribunal decision in the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth)[1] (Migration Act).
[1] Significant amendments have been made to the Migration Act following the commencement of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth). Unless otherwise stated, all references to the Migration Act in this judgment are references to the provisions of the Migration Act in effect at the relevant time of the events described in this judgment. All references to the Administrative Appeals Tribunal are to the Tribunal as it existed at the time the applicants’ matter was before it for review.
The second applicant, who was four years old at the time of the visa application, has an ongoing medical condition. The Tribunal decision turns on the Tribunal’s findings that:
(a)the second applicant did not meet the requirements of Public Interest Criterion (PIC) 4007(1)(c)(ii)(A) in Sch 4 to the Migration Regulations 1994 (Cth) (Regulations), which relevantly requires each visa applicant to be free from conditions or diseases in relation to which the provision of healthcare or community services would be likely to result in a significant cost to the Australian community in the areas of healthcare and community services; and
(b)the requirements in PIC 4007(2) to waive the requirements of PIC 4007(1)(c) were not met.
The applicants raise two grounds which both relate to the Tribunal’s finding that the requirements of PIC 4007(2) to waive the requirement of PIC 4007(1)(c) were not met and allege that the Tribunal erred by:
(a)misunderstanding or misapplying the test in PIC 4007(2); and
(b)failing to apply the test in PIC 4007(2), or constructively failing to exercise its jurisdiction, to assess the applicants’ future financial capacity.
For the reasons explained below, I have found that the Tribunal made a jurisdictional error by misunderstanding or misapplying the test in PIC 4007(2).
VISA APPLICATION AND ADMINISTRATIVE DECISIONS
The applicants applied for employer nomination visas on 12 November 2019.
On 13 May 2020 the Minister’s department sent a letter to the applicants requesting further information, including requiring the second applicant to undergo further health examinations. The letter enclosed a document dated 10 December 2019 headed ‘Form 884: Opinion of a medical officer of the Commonwealth’, which indicated that the second applicant’s health assessment had been deferred as a Medical Officer of the Commonwealth (MOC) required further information from a specialist paediatrician and/or developmental psychologist. The document set out the further information that was required.
The applicants provided a report from a consultant paediatrician/neonatologist dated 5 June 2020.
By a report dated 11 June 2020, a MOC expressed the view that the second applicant did not meet the requirements of PIC 4007(1)(c)(ii)(A). The MOC estimated that the likely cost to the Australian community for the provision of health services would be $855,600 and that granting a visa to the second applicant would not be likely to prejudice the access of an Australian citizen or permanent resident to health care or community services.
On 10 August 2020 an officer of the Minister’s department invited the applicants to comment on the information in the MOC. The applicants were invited to provide information within 28 days in relation to any claim that the opinion of the MOC was incorrect or in relation to the possible waiver of the health requirements.
The applicants provided further information in response to the invitation to comment on 21 September 2020.
On 7 January 2021 a delegate of the Minister refused to grant the applicants employer nomination visas. The delegate found that the applicants did not meet the requirements of cl 186.224 in Sch 2 to the Regulations, which relevantly required that each applicant satisfy PIC 4007, on the basis that the second applicant did not meet the requirements of PIC 4007(1)(c)(ii)(A) and that exercising the waiver would be likely to result in a significant undue cost to the Australian community in the areas of health care and/or community services.
The applicants applied to the Tribunal for merits review of the delegate’s decision on 13 January 2021.
The applicants provided to the Tribunal a further report from a paediatrician dated 19 November 2021.
On 12 September 2023 the Tribunal offered the applicants an opportunity to obtain a further opinion from a MOC in relation to the second applicant. The applicants accepted this offer and they also provided additional submissions and evidence to the Tribunal on 28 September 2023.
A MOC provided a further opinion dated 2 November 2023 in relation to the second applicant. The MOC expressed the view that the second applicant did not satisfy PIC 4007(1)(c)(ii)(A) and estimated that the provision of health care and/or community service costs to a hypothetical person with the condition of the second applicant to be $1,120,900. A copy of the opinion of the MOC was provided to the applicants by the Tribunal on 23 November 2023.
The applicants provided further evidence and submissions to the Tribunal on or about 27 November 2023.
The applicants attended a hearing convened by the Tribunal on 29 November 2023.
On 29 November 2023 the Tribunal affirmed the delegate’s decision not to grant the applicants employer nomination visas.
SUMMARY OF THE TRIBUNAL DECISION
The Tribunal recorded that the issue in the review was whether the visa applicants satisfied the requirements of PIC 4007.
The Tribunal found that the second applicant did not meet the requirements of PIC 4007(1)(c)(ii)(A). In making this finding, the Tribunal had regard to the opinion of the MOC dated 11 June 2020 and provided to the Department, and to the new MOC assessment provided to the Tribunal on 2 November 2023. The Tribunal was satisfied that the MOC had applied the correct test in forming the opinion and acknowledged that it was required to take the MOC opinion as correct.
The Tribunal said at [25]-[28] of its decision:
25.The Tribunal has carefully considered the information provided in the MOC Report which indicates a considerable cost to the Australian community associated with appropriately supporting the secondary applicant …. It accepts the MOC Report as correct. It notes the assertion by the representative of bias demonstrated by the MOC and does not concur. The MOC is required to consider the costs to the Australian community and whilst the Tribunal acknowledges that this is in some part undertaken by the parents of the secondar applicant at this time, it is reasonable to assume considerable costs are likely to be incurred. The Tribunal again notes that some of the medical conditions under consideration have had shown some improvement however and it has considered the medical reports which indicate this fact. However, this condition is viewed by the MOC as a lifelong condition.
26.It has also considered the written evidence provided in support of the primary applicant’s assertions regarding he and his wife’s ability to support the secondary applicant. The provision of medical and health insurance cover, the evidence to show financial capacity to support the secondary applicant because of the primary applicant’s income and his wife’s capacity to be present and act as their daughter’s carer, as she does not work. It is noted that there are financial resources in reserve as demonstrated by bank accounts and property ownership and sales in India.
27.The primary applicant spoke to these issues during the hearing. The Tribunal accepts his belief that he and his family will continue to care for the secondary applicant. However, it is clear from the MOC opinion that a considerable burden will likely fall on the Australian community in the form of substantial service provision over the long term. It is noted once again by the Tribunal that this condition is not transient. It is not possible to predetermine the future financial or physical capacity of the parent’s and their ongoing ability to provide appropriate care.
28.As previously stated, the Tribunal is satisfied the MOC has identified the medical condition to which the public interest criterion has been applied. The MOC has identified the form or level of the condition suffered by the applicant. The MOC has applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition. The tribunal accepts the MOC has assessed against the appropriate time-period.
The Tribunal therefore found that the second applicant did not satisfy PIC 4007(1)(c).
The Tribunal then considered whether the requirements of PIC 4007(1)(c) should be waived, noting that the requirement may be waived if, amongst other things, the decision-maker is satisfied that the granting of the visa would be unlikely to result in either undue cost to the Australian community or undue prejudice to the access to healthcare or community services of an Australian citizen or permanent resident. The Tribunal recognised that the evaluative judgement of whether the cost to the Australian community or prejudice to others is undue may import considerations of compassionate or other circumstances and that there is a discretionary element of the ministerial waiver to which compassionate circumstances or compelling circumstances may be relevant.
The Tribunal was satisfied that the granting of the visa would be unlikely to result in undue prejudice to the access to healthcare or community services of an Australian citizen or permanent resident.
In considering whether the granting of the visa would be unlikely to result in undue cost to the Australian community, the Tribunal:
(a)considered written and oral evidence provided by the applicants in relation to the first and fourth applicant’s ability to support the second applicant, medical and health insurance cover, financial capacity to support the second applicant and the fourth applicant’s role as carer;
(b)accepted the first applicant’s belief that he and his family will continue to support the second applicant, but also considered it clear from the MOC opinion that a considerable burden will likely fall on the Australian community in the form of substantial service provision over the long term, including services not privately paid for by the applicants;
(c)accepted that there was service provision, physical and emotional support provided to the family to enable them to support and care for the second applicant and accepted that removing the family from their community would be a loss for the family and the community, resulting in some compassionate circumstances relating to the family members and the community in which they live, in favour of the applicants remaining in Australia;
(d)acknowledged that the first applicant’s performance in his employment was highly regarded by his employer and their client base, agreed with the employer that losing the first applicant from their employ would likely have a negative impact on the clients and business and agreed that the loss of a skilled person in the first applicant’s field of endeavour was undesirable; and
(e)put the information in the MOC report to the applicants and invited them to comment in accordance with s 359AA of the Migration Act.
The Tribunal then said at [44]-[46] of its reasons:
44.The Tribunal having considered all the evidence before, finds it is unable to conclude in favour of the delegates decision being remitted. Whilst it finds there are some compassionate circumstances, they are no greater than any other persons faced with being unable to stay in the country of their choice. It accepts that the supportive community members with whom they interface will feel a loss as will the applicants. It is also accepted there may be some interruption to children’s education and a realignment of [the second applicant’s] care and treatment.
45.The Tribunal is aware that the primary applicant’s employer will be negatively impacted but no more than any business losing a valued employee through other causes of attrition. Bearing in mind, few enterprises lose less than 10% of employees per annum and many have to replace a far greater % number each year. Normal management and business continuity planning which is the responsibility of any organisation’s senior management should be able to compensate in the medium term. In the view of the Tribunal the considerable costs which will be borne by the Australian community are sufficiently substantial as to outweigh the reasons to remit the delegates decision.
46.For these reasons, the Tribunal is not satisfied that the granting of the visa would be unlikely to result in undue cost within the terms of PIC4007(2)(b)(i). Therefore PIC 4007(1)(c) cannot be waived.
In circumstances where the Tribunal was not satisfied that the requirements of PIC 4007 were met, the Tribunal found that the requirements of cl 186.224 were not met and affirmed the delegate’s decision.
JUDICIAL REVIEW APPLICATION
The application for judicial review was filed on 29 December 2023. The application was made within 35 days of the date the Tribunal decision, as required by s 477(1) of the Migration Act.
The applicants rely on an amended application filed on 10 October 2024 which raises the following two grounds:
1.The Tribunal misunderstood or misapplied the test in PIC 4007(2) by asking whether ‘the costs incurred by the Australian community … are less than the compassionate considerations and the impact upon the Australian community’ (at [39], see also [45]), when the test required the Tribunal to consider the likelihood of ‘undue’ costs or prejudice occurring, not whether the costs would be ‘less than’ other considerations.
2.The Tribunal failed to apply the test, or constructively failed to exercise its jurisdiction, by refusing to assess the Applicants’ future financial capacity, when the test in PIC 4007(2), by asking whether the grant of a visa would be ‘unlikely’ to result in undue cost or prejudice, contemplated or required the Tribunal to so assess.
The evidence before the Court comprises:
(a)a court book filed on behalf of the Minister on 5 April 2024 (exhibit 1); and
(b)a tender bundle filed on behalf of the applicant on 10 October 2024 (exhibit 2).
THE REQUIREMENT TO MEET PIC 4007
Given the importance of PIC 4007 to this application, it is convenient to set out the requirements of that criterion upfront. Each of the applicants in the present matter was required by cl 186.224 in Sch 2 to the Regulations to satisfy PIC 4007.
PIC 4007 relevantly provides:
(1) The applicant:
…
(c)subject to subclause (2)—is free from a disease or condition in relation to which:
(i) a person who has it would be likely to:
(A) require health care or community services; or
(B)meet the medical criteria for the provision of a community service;
during the period described in subclause (1A); and
(ii)the provision of the health care or community services would be likely to:
(A)result in a significant cost to the Australian community in the areas of health care and community services; or
(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; …
(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 the 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.
GROUND 1: WHETHER THE TRIBUNAL MISUNDERSTOOD OR MISAPPLIED THE TEST IN PIC 4007(2)
The applicants’ submissions
The applicants submitted that the Tribunal’s approach to PIC 4007(2) was to:
(a)work out the costs which will be borne by the Australian community;
(b)work out the reasons to remit or the compassionate considerations; and
(c)determine whether the former outweighs the latter.
The applicants submitted that this approach is not what the text of PIC 4007(2) requires. The applicants submitted that PIC 4007(2) asks whether ‘undue cost’ or ‘undue prejudice’ is likely to result from the grant of the visa, which requires the Tribunal to first identify what the cost or prejudice would likely be and then, having identified that cost or prejudiced, to ask whether granting of the visa is likely to result in the cost or prejudice being undue.
The applicants acknowledged that consideration of whether cost or prejudice is undue may involve some form of weighing of competing considerations or an evaluative judgement. These acknowledgements were based on Applicant Y v Minister for Immigration and Citizenship (2008) 100 ALD 544; [2008] FCA 367 (Applicant Y) at [31] and Bui v Minister for Immigration and Multicultural Affairs (1999) 85 FCR 134 (Bui) at [47].
However, the applicants submitted that it would be wrong to construe the weighing exercise as involving a threshold that the reasons to remit must outweigh the cost or prejudice, because the very premise of considering the health waiver provision is that there will be some form of cost or prejudice. The applicants submitted that there is nothing in the text of the health waiver provision which requires that the cost or prejudice be entirely nullified or outweighed by reasons favouring the grant of the visa.
The applicants submitted that their construction reflects the meaning of the word ‘undue’ which is defined in the Australian Concise Oxford Dictionary as ‘unwarranted or inappropriate because excessive or disproportionate’. The applicants again observed that the characterisation of cost or prejudice as undue begins with the very premise that there may be some form of cost or prejudice that is significant, because the health waiver provision is only considered after it has already been found that the cost will be significant under PIC 4007(1)(c)(ii)(A).
The applicants also referred to the Department’s policy, which suggests that a decision to waive the health criteria may still result in some of the identified costs not being mitigated. The applicants referred to the following extract of the Department’s policy:
Capacity to Mitigate Significant Costs
… section 65 delegates should consider what economic or other demonstrable benefit to Australia or the community, that would mitigate some or all of the identified costs, would result from a decision to waive.
Counsel for the applicants emphasised the precise words used by the Tribunal:
(a)at [39] of its reasons, where the Tribunal recorded that it explained to the applicants at the hearing:
I have some discretionary power in this issue. However, the Tribunal will not be able to remit the decision of the Minister’s delegate if it determines that there are considerable costs to the Australian community and if it is unable to determine that the costs incurred by the Australian community, and support of the secondary applicant are less than the compassionate considerations and the impact upon the Australian community; and
(b)at [45] of its reasons, where the Tribunal recorded its view that ‘the considerable costs which will be borne by the Australian community are sufficiently substantial as to outweigh the reasons to remit the delegates decision’.
Counsel for the applicants acknowledged that the Tribunal referred to the statutory language at [46] of its reasons and recorded that it was not satisfied that the granting of the visa would be unlikely to result in undue cost within the terms of PIC 4007(2)(b)(i). However, Counsel for the applicants submitted that this language was not sufficient to take away from the actual deliberative content of its reasoning at [39] and [45], which, in the applicants’ submission, demonstrated that the Tribunal had misapplied the statutory test.
Counsel for the applicants submitted that the specific words used by the Tribunal in this matter, such as ‘sufficiently substantial to outweigh’, mean that the Court cannot simply rely on Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 (Wu Shan Liang) to ‘wave it away’. Counsel for the applicants also submitted that it was significant that the Tribunal also clearly told the applicants at the hearing, as recorded at [39] of its reasons, that it was going to consider whether the costs incurred by the Australian community in support of the second applicant would be less than the compassionate considerations and the impact upon the Australian community.
The Minister’s submissions
The Minister submitted that the applicants’ argument is premised on the proposition that the Tribunal required that the costs be entirely nullified by the reasons favouring the grant of the visa, but that proposition is not made out on a common sense and fair reading of the Tribunal’s decision. Rather, the Minister submitted that the Tribunal’s decision demonstrates that it:
(a)identified that PIC 4007(2) provided that the requirement in PIC 4007(1)(c) may be waived if the decision-maker is satisfied that granting the visa would be unlikely to result in undue cost to the Australian community;
(b)acknowledged the evaluative judgment required to determine whether the cost would be undue and that compassionate or compelling circumstances may be relevant to the exercise of its discretion;
(c)assessed matters relevant to its consideration of PIC 4007(2), including evidence concerning the ability of the first and fourth applicants, and the broader community, to support the second applicant and evidence concerning the impact on the first applicant’s employer and by reason of the loss of a skilled person;
(d)found that there were some compassionate circumstances but that they were no greater than any other persons faced with being unable to stay in the country of their choice;
(e)found that the first applicant’s employer would be negatively impacted but no more than any other business losing a value employee; and
(f)concluded that it was not satisfied the granting of the visa would be unlikely to result in undue cost within the terms of PIC 4007(2)(b)(i).
The Minister submitted that the applicants’ focus on particular statements made by the Tribunal must be read having regard to the reasons as a whole. The Minister submitted that a commonsense approach to the reasons supports that the Tribunal was assessing whether the costs were less than or outweighed by other considerations to such an extent that the granting of the visa would be likely to result in undue cost. The Minister submitted this was evident from the Tribunal’s numerous references to the statutory language of undue cost, its reliance on Bui and its evaluative weighing up of various considerations. The Minister submitted that reading the Tribunal’s use of the language ‘less than’ or ‘outweighed’ as importing a state of satisfaction over and above whether granting the visa would be unlikely to result in undue cost would require an eye finally attuned to error, which is not permissible.
The Minister submitted that the Tribunal did not engage in an exercise of quantifying, by dollar figure, the benefit to the community and require that it matched the estimated dollar figure to be borne by the Australian community. Rather, it identified compassionate and other circumstances and having regard to the evidence before it in the considerable costs that would be borne by the Australian community, was not satisfied that the grant of the visa would be unlikely to result in undue cost within the terms of PIC 4007(2)(b)(i).
Counsel for the Minister submitted that the Tribunal referred in its reasons in at least four places to the language of undue costs, as used in PIC 4007(2) and that the Tribunal applied Bui and expressly acknowledged that it was engaging in an evaluative exercise. Counsel for the Minister further submitted that there was nothing in the Tribunal’s decision that refers to it requiring some complete nullification of the costs that are to be incurred.
Counsel for the Minister submitted that the words used by the Tribunal at [45] that are relied on by the applicants in advancing this ground were linked back to the statutory test at [46] of the Tribunal’s reasons where the Tribunal expressed that it was not satisfied that the granting of the visa would be unlikely to result in undue costs within the terms of PIC 4007(2)(b)(i). The language of ‘sufficiently substantial’ related to a standard and the standard used by the Tribunal was the statutory test of undue cost. Counsel for the Minister submitted that to read that language of ‘outweigh’ and ‘less than’ as importing something beyond the statutory test was not warranted and would result in reading the decision with an eye finely attuned to error.
Resolution
The Full Court of the Federal Court offered the following explanation of the proper approach to the waiver provision in PIC 4007(2) in Bui at [46]-[47]:
46.… There are obviously broad judgments to be made in determining what amounts to “undue cost” and “undue prejudice”. Reading together the criteria in Item 4007(1)(c)(i) and the criterion for waiver in Item 4007(2)(b)(i) it is apparent that the occasion for the exercise of the waiver will only arise where it is already established that the cost to Australia, if the visa is granted, is likely to be “significant”. The Minister will therefore need to be satisfied that a likely “significant” cost will nevertheless not be “undue”. In the former determination he or she is evidently to be bound by the opinion of a Medical Officer of the Commonwealth.
47. The evaluative judgment whether the cost to the Australian community or prejudice to others, if the visa is granted, is “undue” may import consideration of compassionate or other circumstances. It may be to Australia's benefit in moral or other terms to admit a person even though it could be anticipated that such a person will make some significant call upon health and community services. There may be circumstances of a “compelling” character, not included in the “compassionate” category that mandate such an outcome. But over and above the consideration of the likelihood that cost or prejudice will be “undue” there is the discretionary element of the ministerial waiver. And within that discretion compassionate circumstances or the more widely expressed “compelling circumstances” may properly have a part to play.
The Federal Court also considered what is meant by ‘undue’ in Applicant Y and said at [31]:
The word “undue” demonstrates that the minister must engage in a weighing of considerations. When doing so, it may be necessary or appropriate to look at the evidence as to the amount of costs that are likely to be incurred in an applicant’s treatment, having regard to his or her medical condition at the date of the minister’s decision, and to the prognosis of the disease.
It is clear from these authorities that it was open to the Tribunal to have regard to a wide range of considerations, including the existence of any compassionate and compelling circumstances, in determining whether it was satisfied that the granting of the visa would be unlikely to result in undue cost to the Australian community. It is also clear from Applicant Y that the Tribunal was required to engage in a weighing of considerations. The term ‘undue cost’ does not, however, import a standard that requires a decision-maker to believe that any reasons they identify in favour of waiving the health criteria completely outweigh the anticipated cost to the Australian community. Nothing in the case law cited by the parties or the Department’s policy relied on by the applicants suggests that a decision-maker must be satisfied that the granting of the visa would be unlikely to result in cost to the Australian community that is not outweighed by other considerations. Nor does the dictionary definition of ‘undue’ relied on by the applicants, namely, ‘unwarranted or inappropriate because excessive or disproportionate’, which was not disputed by the Minister, require it to be likely that the anticipated costs be completely outweighed by other considerations.
I then turn to consider the approach of the Tribunal in the present matter. As both parties have acknowledged, the resolution of this ground in the present matter turns on the proper interpretation of the Tribunal’s reasons.
The Tribunal in its reasons correctly identified the statutory test at [30], recording that the requirement in PIC 4007(1)(c) may be waived if, among other things, ‘the decision-maker is satisfied that the granting of the visa would be unlikely to result in … ‘undue cost’ to the Australian community’. The Tribunal also correctly recognised that the evaluative judgement of whether the cost to the Australian community is undue may import considerations of compassionate or other circumstances and it acknowledged factors identified in Department policy that may be relevant.
I accept the Minister’s submission that the Tribunal, at various places in its reasons, referred to language that reflects the correct statutory test. However, as submitted by the applicants, the Tribunal also, in two places in its reasons, used language that suggested that the cost to the Australian community to support the second applicant would need to be ‘less than’ the compassionate considerations and impact on the Australian community or ‘outweighed’ by other considerations.
The Minister’s caution against reading the Tribunal decision with an eye keenly attuned to the perception of error, particularly in circumstances where the Tribunal correctly identified the statutory test and used language reflective of that test, is appropriate and not to be dismissed as over-reliance by the Minister on Wu Shan Liang or otherwise trivialised. However, the Tribunal’s correct identification of the relevant statutory test and considerations that may be relevant to its application of that test, in conjunction with the use of language in some parts of its reasons that accurately reflect the words used in the statute, does not mean that the Tribunal decision will be free from error if the Tribunal has misunderstood or misapplied an element of the statutory test.
The Tribunal’s reasons at [27] and [45] reflect an understanding of the term ‘undue’ that suggests the Tribunal considered it needed to be satisfied that granting the visa to the second applicant would be unlikely to result in cost to the Australian community, which was not less than or outweighed by other considerations identified by the Tribunal in favour of granting the visa to the applicants.
This imported a higher standard than what the statutory test required. There may be some cases in which there exist compassionate or compelling circumstances or other reasons that may favour waiving the health criteria that are unlikely to outweigh the anticipated cost to the Australian community, without being so excessive or disproportionate to be considered undue. Whether that is so in any given case is a question for the Tribunal, but one that must be answered based on a correct understanding of the term ‘undue’ in the context of the statutory test.
For the avoidance of doubt, I accept the Minister’s submission that the Tribunal did not engage in any exercise of quantifying, by dollar figure, the benefit to the community and require that it matched the estimated dollar figure to be borne by the Australian community. The applicants’ ground, however, is not premised on the Tribunal having engaged in any exercise of quantifying the benefit to the community in a dollar figure. Rather, that notion appears to have been raised in an example offered by the applicants in their written submissions which has perhaps cause some misapprehension of the case being advanced by the applicants.
I have also carefully considered whether the Tribunal might simply have used unfortunate language at [39] and [45] its reasons, without misapprehending or misapplying the relevant test. At [39], the Tribunal simply recorded what it said to the applicants at the hearing. If its reasons had otherwise demonstrated a proper understanding of the word ‘undue’, it is possible that the language at [39] might have been explained away as inexact language used orally at a hearing (that may in turn have given rise to other issues in relation to the application of s 359AA of the Migration Act, but it is unnecessary to address that). Likewise, if the only impugned language was that used at [45], the phrase ‘sufficiently substantial as to outweigh the reasons to remit the delegates decision’ could potentially be seen simply as part of the weighing exercise referred to in Applicant Y. However, when the two paragraphs are read together and in the context of the Tribunal’s reasons as a whole, I am persuaded that the Tribunal applied a higher standard than that required by the legislation.
The applicants have established that the Tribunal misunderstood or misapplied the test in PIC 4007(2) and have therefore established jurisdictional error by ground 1.
GROUND 2: WHETHER THE TRIBUNAL FAILED TO APPLY THE RELEVANT TEST, OR CONSTRUCTIVELY FAILED TO EXERCISE ITS JURISDICTION, BY REFUSING TO ASSESS THE APPLICANTS’ FUTURE FINANCIAL CAPACITY
The applicants’ submissions
The applicants submitted that another part of the health waiver provision required the Tribunal to consider the likelihood of the undue cost or prejudice occurring. This was said to be apparent from the chapeau to PIC 4007(2)(b), which contains the words ‘unlikely to result in’.
The applicants submitted that the Tribunal needed to first identify what the undue cost or prejudice was and, as a necessary aspect of this step in a case where cost mitigation is raised, consider the evidence going to that very point of mitigation. This may mean consideration of evidence of the earning potential of the family, since that goes directly to the mitigation of costs.
In the present case, the applicants had submitted to the delegate that they would be able to pay for, at least in part, the care that the second applicant required.
The applicants submitted that the Tribunal then necessarily had to consider the evidence about the first applicant’s and the fourth applicant’s earning potential, of which there was plenty. The Tribunal instead abdicated this part of its task, recording at [27] that:
It is not possible to predetermine the future financial or physical capacity of the parent’s and their ongoing ability to provide appropriate care.
The applicants submitted that ‘pre-determining’ overstated what was required. The assessment called for by the waiver provision involved an examination of likelihood and not certainty. Therefore, submitted the applicants, it is beside the point that the Tribunal thought it could not predetermine with certainty the parents’ future earning capacity. The applicants submitted that there was cogent evidence from the family from which the Tribunal could assess the likelihood as the waiver provision required. It was wrong for the Tribunal to dismiss the evidence on the basis that it could not rise to the level of predetermining the future.
In response to the Minister’s written submissions, Counsel for the applicants expressly disavowed at the hearing any suggestion that the ground was based on a failure to consider evidence. Counsel for the applicants acknowledged that the Tribunal referred to evidence in relation to financial capacity but submitted that the point raised by the ground was that the Tribunal had misunderstood the test.
Counsel for the applicants submitted, in response to a submission advance by the Minister, that it does not assist the Minister that the impugned language at [27] of the Tribunal’s reasons appears under a heading under which the Tribunal considered whether the second applicant met PIC 4007(1)(c), because, in considering that provision the Tribunal was considering the likely cost in relation to a hypothetical person who has the same condition as the second applicant, and the impugned language at [27] is irrelevant to that consideration. Instead, it relevant to the consideration of the waiver for the purposes of PIC 4007(2). Counsel for the applicants also referred to [35] of the Tribunal’s reasons, under a heading relating to consideration of the waiver, where the Tribunal made an observation that ‘it is not possible to determine what will occur in the medium to long-term’ and again submitted that it is not the test is not about determining what will occur, but rather about likelihood.
Counsel for the applicants also submitted that the Tribunal’s expression of doubt about the parents’ ongoing ability to provide care, relied upon by the Minister, was only because the Tribunal refused to apply the evidence towards the predictive exercise required. Counsel for the applicants submitted that the doubt only existed because the Tribunal misunderstood the nature of its task.
The Minister’s submissions
The Minister treated the applicants’ assertion that the Tribunal abdicated consideration of evidence of the future earning potential of the first and fourth applicants as amounting to an argument that the Tribunal failed to consider relevant material before it. The Minister submitted that the Tribunal’s statement that it was not possible to predetermine the future financial or physical capacity of the first and fourth applicants and their ability to provide appropriate care had to be considered in the context of the surrounding paragraphs in which the Tribunal addressed whether PIC 4007(1)(c) is satisfied and whether it should be waived.
The Minister submitted that the realistic reading of the surrounding paragraphs, together with the Tribunal’s reference to having ‘read and carefully considered all the evidence’ demonstrates that the Tribunal did consider the evidence of the future earning potential of the first and fourth applicants. Having regard to that evidence and the likelihood of substantial service provision over the long-term, the Tribunal was not satisfied that the support to be provided by the first and fourth applicants would have the effect that the granting of the visa was unlikely to result in undue cost to the Australian community.
The Minister submitted that the applicants’ submission that the Tribunal statement’s at [27] that it was unable to predetermine the future financial physical ability or capacity of the parents amounted to the Tribunal imposing a standard of certainty, as opposed to likelihood, did not reflect a commonsense and fair reading of the Tribunal’s reasons. First, the Tribunal’s statement at [27] of its reasons fell within the Tribunal’s consideration of whether the provision of health care or community services would be likely to result in a significant cost to the Australian community pursuant to PIC 4007(1)(c), and not the waiver provision in PIC 4007(2). Second, the Minister submitted that insofar as the Tribunal’s statement at [27] had any bearing on the Tribunal’s consideration of PIC 4007(2), read in context, the Tribunal was simply expressing doubt over the parents’ ongoing ability to provide appropriate care in the context of a lifelong condition. The Minister submitted that such consideration falls well within the very broad ambit of considerations which the Tribunal was considered to take into account when deciding whether the granting of the visa would be unlikely to result in undue cost.
Counsel for the Minister emphasised that the relevant test required the Tribunal to be satisfied that the granting of the visa would be unlikely to result in undue cost to the Australian community, that is, it is framed in the negative of needing to be satisfied that something would be unlikely to result. Counsel for the Minister submitted that it was open for the Tribunal to take into account that there is doubt over the ability of the considerable cost to be met in circumstances where there is a lifelong condition. The Minister submitted that the Tribunal looked at the costs that might be met privately by the applicants, went through the evaluative judgement and reached the conclusion that the waiver provision did not have a part play or that it was not satisfied in this particular case.
Resolution
In advancing this ground, the applicants relied on Dang v Administrative Appeals Tribunal (2019) 273 FCR 87; [2019] FCAFC 220 (Dang). In that case, the Full Court of the Federal Court explained the different approach required by PIC 4007(1)(c) and PIC 4007(2) and said at [37]-[38] (emphasis added):
37.The power conferred by cl 4007(2) is a power to waive the requirements of cl 4007(1)(c). It is dependent upon the Minister’s satisfaction that the granting of the visa would be unlikely to result in undue cost to the Australian community or undue prejudice to access to services by Australian citizens and permanent residents. Expressed in those terms, it requires consideration of the particular circumstances of the applicant, not the circumstances of an hypothetical person or a general assessment of what would usually be the case for a person with the relevant type of condition. Therefore, the test is different to that to be applied under cl 4007(1)(c). It will encompass whether the applicant is likely to be provided with certain of the services privately, such as through private schooling or therapies paid for without any cost to the community. It presupposes that the requirement the subject of the opinion of the Medical Officer is not met and then directs the Minister to undertake a different form of inquiry.
38.In the above circumstances, the Minister is not required to take the opinion of the Medical Officer to be correct for the purpose of considering whether to exercise the power to waive. To the extent that there is to be a consideration of cost or use of services then it must be undertaken by reference to the particular circumstances of the applicant. The Minister (or the Tribunal on review) must undertake that assessment by reference to all of the available material. It may be expected that given the nature of the inquiry to be undertaken, the opinion of the Medical Officer, though relevant, will be given weight that reflects its character. In any event, for reasons already given, the opinion of the Medical Officer concerning the requirements of cl 4007(1)(c) would not extend to any calculation of the likely cost to be incurred in providing services required by the applicant.
It can readily be accepted that, for the purposes of PIC 4007(2), the Tribunal was required to consider the particular circumstances of the applicants and not a hypothetical person with the same condition of the same severity as the second applicant.
I also accept the applicants’ submission that the terms of PIC 4007(2) require the Tribunal to consider the likelihood of whether there would be, in the future, undue cost to the Australian community and does not require the Tribunal to be able to make any exact determination of what will occur in the future.
However, when the Tribunal’s reasons are read fairly and as a whole, I do not consider that the Tribunal has erred in the manner alleged by the applicants in ground 2. When read in its proper context, the Tribunal’s statement at [27] of its reasons that it is not possible to predetermine the future financial and physical capacity of the parents and their ongoing ability to provide appropriate care, does not appear to reflect any understanding on the part of the Tribunal that the waiver can only apply if the Tribunal can predetermine the future financial and physical capacity of the first and fourth applicants to provide appropriate ongoing care to the second applicant. Rather, when read in context, it appears to reflect an assessment that the cost to the community is likely be a ‘considerable burden’ notwithstanding the applicants’ belief that they will continue to care for the second applicant, financially and physically, albeit that the precise extent of the financial and physical support cannot be determined.
The Tribunal’s reasons at [27] also need to be read in the context of its findings in considering whether the requirements of PIC 4007(1)(c) should be waived. In particular, the Tribunal addressed at [33]-[34] much of the same evidence that it considered at [26]-[27]. At [33]-[34] the Tribunal said:
33.As already stated, the Tribunal has also considered the written evidence provided in support of the primary applicant’s ability in conjunction with his wife’s ability to support the secondary applicant, the provision of medical and health insurance cover, the evidence to show financial capacity to support the secondary applicant because of the primary applicant’s income and his wife’s capacity to be present and act as a carer as she does not work. It is noted that there are financial resources in reserve as demonstrated by bank accounts and property ownership and sales. It also notes that the primary applicant currently pays for a small amount of privately funded therapy to improve the secondary applicant’s development.
34.As previously stated, the primary applicant spoke to these issues during the hearing. The Tribunal accepts his belief that he and his family will continue to care for the secondary applicant. However, it is clear from the MOC opinion that a considerable burden will likely fall on the Australian community in the form of substantial service provision over the long term. These services are not privately paid for by the applicants. The Tribunal has carefully considered the medical opinions presented which demonstrate the secondary applicant is unable to undertake daily tasks without significant assistance whilst acknowledging some improvements over time.
The Tribunal in these paragraphs did what was required by Dang. It considered evidence specific to the applicants as to the support that the second applicant is likely to require in the future and the evidence into how that support may be provided. The Tribunal again concluded that, notwithstanding the first applicant’s belief that he and his family will continue to care for the second applicant, a considerable burden will likely fall on the Australian community in the form of substantial service provision over the long-term. The Tribunal observed that those services are not paid for by the applicants. These are all matters that the Tribunal was entitled to consider. I do not accept the applicants’ submission that the Tribunal dismissed the evidence on the basis that it could not rise to a level of predetermining the future.
Given that the applicants expressly disavowed advancing by this ground any assertion that the Tribunal failed to have regard to relevant evidence, it is not necessary to address that issue.
Ground 2 is not established.
CONCLUSION
Given that I have found that jurisdictional error was established by ground 1, it follows that the applicants succeed in this judicial review application. I issue a writ of certiorari to quash the Tribunal decision. In the light of the amendments to the Migration Act and the provisions of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), it is appropriate that a writ of mandamus issue directed to the Administrative Review Tribunal requiring it to reconsider this matter according to law.
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 17 January 2025
SCHEDULE OF PARTIES
PEG 6 of 2024 Applicants
Fourth Applicant:
BARVEEN BAHU SAFIULLA
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