Nand, Satya v Minister for Immigration & Ethnic Affairs

[1996] FCA 1057

CATCHWORDS

IMMIGRATION - health criteria - whether Tribunal should require person to undergo assessment - relevance of earlier report that person did not satisfy criteria.

Migration Regulations 1989 - Items 6 and 9 in Schedule 1

Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189
Fletcher v Commissioner of Taxation (1988) 19 FCR 442
Kidner v Department of Social Security (1993) 18 AAR 545

No. NG 44 of 1996

SATYA NAND v MINSTER FOR IMMIGRATION AND ETHNIC AFFAIRS   

MOORE J

SYDNEY

27 NOVEMBER 1996

IN THE FEDERAL COURT OF AUSTRALIA )
  )
NEW SOUTH WALES DISTRICT REGISTRY )        No. NG 44 of 1996
  )
GENERAL DIVISION                 )

BETWEEN:  SATYA NAND

Applicant

AND:            MINISTER FOR IMMIGRATION
  AND ETHNIC AFFAIRS

Respondent

JUDGE:    Moore J

PLACE:    Sydney

DATE:     27 November 1996

ORDER OF THE COURT

THE COURT ORDERS THAT:

1. The application is dismissed.

NOTE:     Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )
  )
NEW SOUTH WALES DISTRICT REGISTRY )        No. NG 44 of 1996
  )
GENERAL DIVISION                 )

BETWEEN:  SATYA NAND

Applicant

AND:            MINISTER FOR IMMIGRATION

AND ETHNIC AFFAIRS

Respondent

JUDGE:    Moore J

PLACE:    Sydney

DATE:     27 November 1996

REASONS FOR JUDGMENT

This is an application under s 476 of the Migration Act 1958 ("the Act") for the review of a decision of the Immigration Review Tribunal ("the Tribunal") of 8 January 1996. The applicants in these proceedings are Satya Nand and his wife, Nirmala Nand. The review is sought on the basis that the Tribunal's decision involved an error of law: see s376 (1)(e) of the Act.

The application raises a narrow legal issue.  The relevant facts are not contentious and the following narrative is drawn from the reasons for decision of the Tribunal.  Satya Nand, Nirmala Nand and their three children arrived in Australia on 23 September 1989.  On 24 May 1991, Satya Nand applied for both an extended eligibility (economic) entry permit and also a skilled occupation entry permit.  As part of the process of considering these applications, Nirmala Nand was examined by a Commonwealth Medical Officer who expressed the opinion that she did not meet prescribed health criteria.  That opinion was based on an assessment that she was suffering from a kidney condition which, during the proposed period of stay in Australia, would require significant care or significant treatment (or both), would require care or treatment (or both) involving the use of community resources in short supply and would prevent her from pursuing her intended occupation in Australia.

On 28 February 1994 a delegate of the Minister for Immigration and Ethnic Affairs refused to grant an entry permit to Satya Nand.  The terms in which that decision was made are not in evidence.  On 29 March 1994 Satya Nand applied for an internal review of that decision by the Immigration Internal Review Office.  On 31 August 1994 a review officer affirmed the decision under review.  An application for further review by the Tribunal was made on 14 September 1994 which led to the decision of 8 January 1996 to which these proceedings relate.

To identify the legal issue in these proceedings it is convenient first to refer to provisions in Schedule 1 of the Migration Regulations 1989 ("the Regulations"). Items 6 and 9 in the schedule provide:

"6 E it is established:

(a)that any person who is a member of the family unit of an applicant for a visa or entry permit at the time when the person is assessed in relation to an application:

(i)satisfies public interest criteria, as applicable; and

(ii)satisfies health criteria unless the Minister is satisfied that it would be unreasonable to require the person to undergo the assessment; and

(b)if the person is a dependent child - that the Minister is satisfied that the grant of the visa or entry permit would not prejudice the rights and interests of any person who has custody or guardianship of, or access to, the child.

........

9 HThe applicant is free from:

(a)tuberculosis or any other communicable disease of a fatal or serious nature which, in the opinion of the Commonwealth Medical Officer, is a threat to public Health in Australia, and is not suspected of having contracted such a disease; and

(b)any other disease or condition which, in the opinion of the Commonwealth medical Officer, would be a danger to members of the Australian community; and

(c)any disease or condition which, during the applicant's proposed period of stay in Australia would, in the opinion of a Commonwealth medical officer:

(i)require significant care or significant treatment (or both); or

(ii)Require care or treatment (or both) involving the use of community resources in short supply; or

(iii)prevent the applicant from pursuing his or her intended occupation (if any) in Australia; or

(iv)result in the applicant becoming a significant charge on public funds" (emphasis added)

Item 9 constitutes the health criteria referred to in item 6. 

It is unnecessary to describe in detail the entire legislative scheme that rendered items 6 and 9 applicable to not only the applicant for the permit, Satya Nand, but also his wife, Nirmala Nand.  It was  common ground in these proceedings that they were.  The legislative scheme, which I have not detailed and have somewhat simplified, imposes the requirement that the health criteria be met on the members of the family of the applicant.  It can be seen, however, that in item 6, sub-paragraph (a)(ii), the requirement that an applicant, and in this case, Nirmala Nand, satisfy the health criteria is not absolute.  The criteria need not be satisfied if the Minister is satisfied that it would be unreasonable to require the person to undergo the assessment.

The point in issue in these proceedings was initially the way in which the Tribunal approached the provision in sub-paragraph (a)(ii) conferring the power on the Minister relating to medical assessment.  The proper characterisation of the power is addressed later in this judgment.

The Tribunal approached the provision in sub-paragraph (a)(ii) in the following way.  The Tribunal noted that item 6 had been considered on a number of occasions by the Tribunal.  Reference was made to a decision of the Tribunal in Re Stewart (IRT Decision 379, 11 October 1991).  In the present matter, in discussing Re Stewart, the Tribunal noted that a submission had been made in Re Stewart that neither the Act, the regulations nor policy provided any guide as to the basis upon which reasonableness might be assessed for the purposes of sub-paragraph (a)(ii). The Tribunal also noted that in Re Stewart the Procedures Advice Manual ("the Manual") of the Department of Immigration, Local Government and Ethnic Affairs, had been referred to and that the qualification in sub-paragraph (a)(ii) was said in the Manual to have application when persons were separated or two person who would otherwise be family unit members did not intend to migrate to Australia.  The reference to separated persons was a reference to a married couple who were separated and one of them was the applicant.

In the present matter, the Tribunal went on to refer to and quote from a decision of the Tribunal in Re Glover (IRT Decision 366, 9 October 1991), which had said that the purpose of health testing was to screen out persons with serious communicable diseases or conditions which would be a threat to the Australian Public or a drain on Australian resources.   In the quoted passage from Re Glover, the Tribunal noted the current policy was that all family members had to satisfy health requirements.  An explanation was then given as to why that was so.  In the present matter, the Tribunal went on to quote a passage from the decision in Re Stewart. In that passage the Tribunal had indicated that policy could not be applied inflexibly so as to override a discretion given to a decision maker, but that the qualification in paragraph (a)(ii) did not confer a general power to waive the health criteria.  That, it was noted in the passage from Re Stewart, was to be found in regulation 144 which itself had qualified application.

Having referred to both Re Glover and Re Stewart, the Tribunal went on to discuss the submission made on behalf of Satya Nand.  It had been submitted that if Nirmala Nand was required to undergo the medical assessment, she would inevitably fail it.  If so, her family would have to return to Fiji.  The Tribunal stated that it was required to "consider afresh" any and all discretions that arise in considering the application.  A passage in the Tribunal's decision suggests that it had been submitted that Nirmala Nand's condition would prove fatal if she returned to Fiji.  It had also been submitted that Satya Nand, who was a Hindu priest, would be a loss to the Australian Hindu community.  Another submission concerned Australia's national interest though precisely how that was raised in not clear.

The Tribunal went on to reject the approach upon which these submissions had been based.  It rightly, in my opinion, rejected the suggestion that paragraph (a)(ii) provided a mechanism for waiving the health requirement where a person applies for entry but is unable to meet the health criteria.

The Tribunal then said:

In line with previous Tribunal decisions, especially Re Glover and Re Stewart as noted above, the Tribunal is of the view that criterion E is not to be interpreted as a waiver of the health requirement where a person applies to migrate to Australia but
is unable to meet the health criteria.  Rather, in the view of the Tribunal, criterion E should be interpreted as a provision which can be applied when it is clear that family unit members who are unable to meet the health requirement, do not intend to migrate to Australia.  Given the Tribunal's view of the nature of the waiver in criterion E it is not necessary for the Tribunal to consider the arguments made by the adviser to the Applicant regarding the reasonableness or otherwise of the exercise of the discretion.

Accordingly criterion E of item 6, Schedule 1 cannot be applied to the Applicant's benefit in this case as Mrs Nand does intend to migrate to Australia.

Mrs Nand's medical condition has been assessed by the Commonwealth Medical Officer who found Mrs Nand fails to meet the health requirement for permanent residence. The Tribunal reaffirms that decision and accordingly finds that as Mrs Nirmala Nand, a member of the Applicant's family unit, fails to meet the prescribed health criteria specified at item 9 of Schedule 1, the applicant fails to meet health criteria E for the grant of a skilled occupation entry permit. Therefore the Applicant fails to satisfy prescribed criteria for the grant of a skilled occupation permanent entry permit."

In describing the operation of para (a)(ii) in the way it did, the Tribunal, in my opinion, failed to give effect to the plain words of the schedule to the Regulations.

Even viewing the language used by the Tribunal generously, it was identifying the circumstances in which the Minister could decide that it was unreasonable to require a person to undergo medical assessment.  Having identified those circumstances and, by necessary implication, having concluded Nirmala Nand did not fall within them, the Tribunal appears to have concluded that any discretion not to require Nirmala Nand to undergo assessment could not be exercised in her favour.  In so concluding, the Tribunal appears to have adopted part of what is found in the Manual as describing, exhaustively, the appropriate manner of exercising the discretion conferred by paragraph (a)(ii).  This involves too narrow a reading of the provision.  Paragraph (a)(ii) is, in my opinion, directed to the process of assessment.  That is, it concerns what might be required of a person to undergo assessment involving, ordinarily, attending the rooms of a medical practitioner to permit the assessment to be made.  The question the Minister is to address is whether it is reasonable to require that to occur.  It might be unreasonable to require a person to submit to examination because of the cost and inconvenience of attending having regard to where the examinee was resident.  It might be unreasonable to require a person to do so because it was or was likely to be a futile exercise.  Such would be the case in the situation referred to by the Tribunal where a family member did not intend to migrate.  While plainly the Tribunal is able to pay regard to policy:  see Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189, its reliance on the Manual, reflected in earlier decisions of the Tribunal, resulted in the policy being elevated to a point where it displaced the words of the schedule to the regulations.

These reasons have proceeded, to this point, on the assumption that the Tribunal was entitled to consider whether it was unreasonable to required Nirmala Nand to undergo assessment and that determination had a bearing on whether the earlier report could or could not be relied upon by the Tribunal. It may be accepted that s 363(1)(d) expressly confers a power on the Tribunal to require the Secretary of the Department to arrange for a medical examination. It may also be accepted that regulation 34A of the Regulations impliedly required the health criteria to be satisfied at the time of the decision. However, when the Tribunal considered the application, it had before it material which included an adverse report relating to the health of Nirmala Nand. Section 353(2)(b) directs that the Tribunal act according to substantial justice and the merits of the case. Consistent with that direction, the Tribunal cannot, in my opinion, ignore the report. In the present case it did not. It must decide whether an entry permit should issue having regard to the report's contents, though it could, if it wished, have ordered a further report: see S 363(1)(d) and Fletcher v Commissioner of Taxation (1988) 19 FCR 442 at 453. As the Tribunal rightly pointed out, paragraph (a)(ii) does not confer a power to waive compliance with the health criteria if it is known not to be met. That power is conferred by regulation 144 which has no application to visas of the type sought by Satya Nand.

It was conceded by those representing Satya Nand in the proceedings before the Tribunal and recorded in its decision, that had Nirmala Nand been required to undergo again the assessment she would "unequivocally fail it".  Thus, a concession was made that a member of the applicant's family unit did not satisfy a prescribed criteria.  As a consequence, the application of Satya Nand would have to be refused.  In my opinion, the Tribunal erred in that it misconstrued paragraph (a)(ii) but it was not, in the circumstances, a material error having regard to the decision it was required to make and made.   No purpose would be served by remitting the matter to the Tribunal:  see Kidner v Department of Social Security (1993) 18 AAR 545 at 553.5.

I dismiss the application.  I propose to make no order as to costs.  The applicants succeeded on a substantive issue raised by the decision of the Tribunal in that they have demonstrated an error in the construction and application of paragraph (a)(ii).

I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Moore.

Associate:  ........ ........ ......
  Alexandra George

Dated:    27 November 1996

APPEARANCES

Solicitor for the Applicant: Mr D Prince of Corby Livingston               

Counsel for the Respondent:  Mr G T Johnson         

Solicitor for the Respondent:     Australian Government Solicitor      

Dates of Hearing:           3 September 1996       

Written Submissions Complete:     10 September 1996      

Date of Judgment:           27 November 1996