FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PILLAY v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 517 |
| MIGRATION – Application to review decision of Migration Review Tribunal – health requirements for a visa – whether Tribunal bound to take opinion of the Medical Officer of the Commonwealth as correct. |
| Migration Act 1958 (Cth), ss.347, 351, 357A, 359A, 360, 424A |
| Applicant: | AKESHNI NIGAM PILLAY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2361 of 2008 |
| Judgment of: | Barnes FM |
| Hearing date: | 7 May 2009 |
| Delivered at: | Sydney |
| Delivered on: | 2 June 2009 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Ms L Clegg |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
That the application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2361 of 2008
| AKESHNI NIGAM PILLAY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This an application for review of a decision of the Migration Review Tribunal signed on 8 August 2008 and handed down on 20 August 2008 affirming a decision of a delegate of the first respondent not to grant Ms Nileshni Lata (the visa applicant) an Other Family (Migrant) (Class BO) visa.
Ms Lata, an adult Fijian citizen and resident, applied for a Class BO visa on 14 July 2006 on the basis that she was a remaining relative of her sister and sponsor, Akeshni Nigam Pillay, an Australian citizen who is the applicant in these proceedings. The only subclass in respect of which claims were made was Subclass 115 (Remaining Relative).
The application was refused by a delegate of the first respondent. The delegate found, based on an opinion of a Medical Officer of the Commonwealth (MOC) dated 16 March 2007, that the visa applicant, who has Down Syndrome, failed to meet the criterion in clause 115.223 of Schedule 2 to the Migration Regulation that the applicant satisfies public interest criterion 4005. Public interest criterion 4005, which is in clause 4005 in Schedule 4 to the Migration Regulations, is as follows:
The applicant:
(a) is free from tuberculosis; and
(b) is free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community; and
(c) is not a person who has a disease or condition to which the following subparagraphs apply:
(i) the disease or condition is such that 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 of the applicant's proposed stay in Australia;
(ii) provision of the health care or community services relating to the disease or condition would be likely to:
(A) result in a significant cost to the Australian community in the areas of health care and community - community_servicesservices; or
(B) prejudice the access of an Australian citizen or permanent resident to health care or community - community_servicesservices;
regardless of whether the health care or community services will actually be used in connection with the applicant; and
(d) if the applicant is a person from whom a Medical Officer of the Commonwealth has requested a signed undertaking to present himself or herself to a health authority in the State or Territory of intended residence in Australia for a follow‑up medical assessment, the applicant has provided such an undertaking.
The MOC found that a hypothetical person with Ms Lata’s condition of moderately severe mental retardation would be eligible for pensions and some community services which would be a significant cost to the Australian community and that Ms Lata did not meet cl.4005(c)(ii)(A).
Regulation 2.25A(1) provides (subject to exceptions that are not of relevance in this case) that in determining whether an applicant satisfies the criteria for a visa the Minister must seek the opinion of an MOC on whether the applicant meets certain requirements in Schedule 4, including paragraphs 4005(a), 4000(b) and 4005(c).
Regulation 2.25A(3) is as follows:
The Minister is to take the opinion of the Medical Officer of the Commonwealth on a matter referred to in subregulation (1) or (2) to be correct for the purposes of deciding whether a person meets a requirement or satisfies a criterion.
The delegate found that the MOC’s opinion must be taken to be correct and that there was no provision to waive this requirement.
Ms Pillay as the applicant’s sponsor (see s.347), sought review of the decision by application lodged with the Tribunal on 5 July 2007.
Ms Pillay was invited to and attended a Tribunal hearing. She also provided the Tribunal, through her adviser, with submissions and supporting documentation, including further medical reports in relation to Ms Lata. The adviser took issue with the validity of the MOC’s opinion dated 16 March 2007 and raised a number of compassionate factors. The Tribunal recorded that the adviser commented that if the Tribunal did not set aside the delegate’s decision, the matter should be referred back to the MOC for a further opinion.
After the hearing, the Tribunal allowed Ms Pillay time to provide further submissions and then, at the election of Ms Pillay, referred the matter to the Review Medical Officer of the Commonwealth (RMOC) for a new medical assessment. The Tribunal sent to the RMOC copies of medical reports and submissions provided in support of the visa application.
The RMOC provided an opinion dated 16 June 2008 in relation to the ability of the visa applicant to meet the prescribed health criteria in relation to the grant of a Subclass 115 visa. The RMOC’s opinion was that Ms Lata did not meet public interest criterion 4005. This opinion was said to be based on listed available medical and radiological reports, including those obtained after the original opinion and the proposed duration of stay in Australia (permanent). The report continued:
Condition
Intellectual disability – Down Syndrome
Assessment
The applicant is a 30 year old woman with moderately severe intellectual disability secondary to Down syndrome. She has had no formal education, is illiterate but has received some vocational skills training. Her mental age is that of an 8 – 10 year old child. She is unable to live independently and can work only in a supported or sheltered position. She would be eligible for a range of community supports, income support and vocational support programs in Australia. This would be at significant cost to the Australian community.
These needs are consistent with those of a hypothetical person with a similar condition of a similar severity.
This disease or condition is a disease or condition to which paragraphs 4005(c)(ii)(A) – new in Schedule 4 of the Migration Regulations 1994 apply, (sic) regardless of whether or not health care or community services will actually be used in connection with the applicant during the period of the applicant’s proposed stay in Australia. A person with such a disease or condition would be likely to require health care or community services or would be likely to meet the medical criteria for the provisions of a community service and provision of such health care or community services relating to the disease or condition would be likely to result in a significant cost to the Australian community in the areas of health care and community services, or prejudice the access of Australian citizens or permanent residents to, health care and community services.
Therefore the applicant does not meet Public Interest Criterion(s): 4005.
On 18 June 2008 the Tribunal wrote to Ms Pillay care of her adviser, inviting her to comment on the information from the RMOC that Ms Lata did not meet the health requirements for the visa sought. On 16 July 2008 the adviser responded to the invitation to comment, submitting that the RMOC opinion was incorrect, that Ms Lata satisfied criterion 4005 and, in the alternative, that the Tribunal should note the compassionate aspects of the case as the applicant may seek Ministerial intervention under s.351 of the Migration Act 1958 (Cth).
The Tribunal made its decision on 8 August 2008. Ms Pillay sought review of the Tribunal decision by application filed in this Court on 11 September 2008.
The Tribunal decision
In its reasons for decision the Tribunal observed that the only subclass in Class BO in respect of which any claims were advanced was Subclass 115 (Remaining Relative) and that the issue on review was whether the visa applicant met the clause 4005 health criterion referred to in clause 115.223 of Schedule 2 the Migration Regulations (which the Tribunal referred to as Public Interest Criterion (or PIC) 4005.
The Tribunal referred to reg.2.25A of the Migration Regulations and to the fact that in deciding whether a person met the requirements of clause 4005(a) (b) or (c) the Tribunal was required by reg.2.25A(3) to take the opinion of the MOC to be correct. It noted that the initial report of the MOC of 16 March 2007 had found that Ms Lata was not a person who satisfied the requirements of public interest criterion 4005(c)(ii)(A), which requires the visa applicant not to be a person who has a disease or condition in relation to which “provision of the health care or community services relating to the disease or condition would be likely to … result in a significant cost to the Australian community in the areas of health care and community services.”
The Tribunal referred to the written and oral submissions from the adviser to the effect that the MOC had applied the incorrect test, that the opinion did not reflect the visa applicant’s circumstances and that Ms Lata’s condition was not severe and would not result in a significant cost to the Australian community in the areas of health care and community services if she was able to live with her family in Australia.
The Tribunal noted that it had referred the matter back to the RMOC and had given the RMOC all the submissions provided in support of the visa applicant. It recorded that the RMOC had “decided that the applicant did (sic) satisfy the requirements of PIC 4005(c)(ii)(A)’ (although, as discussed below, it is clear from the rest of the Tribunal decision that this is a typographical error and that the Tribunal understood that the RMOC opinion was that Ms Lata did not satisfy PIC 4005). The Tribunal referred to the adviser’s subsequent contention that the RMOC opinion was incorrect because the appropriate test had not been applied, that the RMOC had used a “generalised approach in assessing the visa applicant’s condition,” and that the visa applicant’s condition would not result in significant cost to the Australian community or use of health care services and to the submission that there were compelling humanitarian reasons for the visa applicant to be permitted to join her family in Australia.
In its findings and reasons the Tribunal stated that it had had regard to the decisions in Robinson v Minister for Immigration and Multicultural Indigenous Affairs and Another (2005) 148 FCR 182 and Ramlu v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 195 FLR 203 but was of the view that there was no evidence that the RMOC applied the wrong test. Specifically, the Tribunal was satisfied:
… that the MOC identified the visa applicant’s condition to which the public interest criteria have been applied, has ascertained the form or level of the condition suffered by the visa applicant and has applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition.
The Tribunal found that it was bound to accept the final assessment of the RMOC to be correct for the purposes of deciding whether the visa applicant satisfied the relevant health criterion. Accordingly, based on the opinion of the RMOC, it found that the visa applicant did not satisfy public interest criterion 4005.
The Tribunal accepted that there were legitimate humanitarian reasons for Ms Lata to be reunited with members of her family in Australia, but found that these issues were outside the jurisdiction of the Tribunal and could not be considered in its decision. It also referred to the fact that there was no provision for waiver of criterion 4005 in relation to applications for Subclass 115 visas. It found that meant that the criterion in clause 115.223 could not be satisfied. The Tribunal found that there was no evidence that the visa applicant could satisfy the requirements for the other subclasses of a Class BO visa. Accordingly it affirmed the decision not to grant Ms Lata a Class BO visa.
Procedural fairness
The application to this Court and supporting affidavit raise a number of grounds of review. The first substantive ground (ground two) is that: “The Tribunal decision was infected with jurisdictional error and procedural error and this was detrimental to the applicant getting a fair hearing because the Tribunal would have had perceived bias against the applicant.” There is some overlap in the grounds that assert a lack of a fair hearing and also apprehended bias. I have considered both issues. It is convenient to consider first the issue of a “fair hearing”. A number of particulars to this ground take issue with the conduct of the Tribunal hearing. It is contended that the Tribunal “only asked all general types of questions … did not in fact raise specific issues in relation to the applicant’s claims”, that it “more or less ran the hearing in a manner that it did not give any other options of health waiver” and that by conducting the hearing in the manner which it did, the Tribunal’s decision was infected with jurisdictional error because it “circumvented the hearing process without following the procedures and allowing for questions pertinent to the hearing.” It was pointed out that the conduct of the hearing was controlled by the Tribunal and suggested that the Tribunal had “the responsibility to focus on questions that is directed to the applicant so that it could ascertain the claims.”
In her supporting affidavit (which was in the nature of submission and is regarded as such) Ms Pillay contended that the Tribunal “carried on the hearing for the same (sic) of doing their duties and meaningless issues (sic) and it was merely the intention of the later (sic) to turn down the claim.” Ms Pillay sought a “fair hearing” at the Tribunal with evidence of her sister’s “mild down syndrome”.
Ground three in the application reiterates the contention that the Tribunal was guilty of procedural unfairness on the basis that during the hearing it did not address specific issues It was contended that the Tribunal was required “to afford the applicant an opportunity to give more medical evidence and present arguments relating to the issues and take a fair view of the community in general and the neighbourhood where the visa applicant had been carrying her normal duties and functioning her household duties and therefore to conduct a hearing which was “real and meaningful” and not to be a “hollow shell or an empty gesture.”
The application refers to s.425 of the Migration Act 1958 (Cth). The provision applies to the Refugee Review Tribunal. The provision applicable to the Migration Review Tribunal is s.360 of the Act which requires the Tribunal to invite a review applicant to “appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review”.
The evidentiary basis for the applicant’s contention about the conduct of the hearing is not made out. There is no transcript of the hearing before the Court (despite directions being made for the filing of any transcript). The only evidence before the Court of what occurred in the Tribunal hearing is the Tribunal reasons for decision. This evidence does not support the applicant’s claims that there was a lack of procedural fairness, whether consisting of a failure to comply with s.360 or otherwise (as to which see s.357A).
It is clear on the material before the Court, including the Tribunal reasons for decision, that the review applicant (and the visa applicant) were provided with an opportunity to present oral arguments at the hearing conducted on 19 March 2008. The basis for the Tribunal’s decision was the same as the delegate’s decision, so the issue of the visa applicant meeting the health requirement in public interest criterion 4005, in particular cl.4005(c)(ii)(A), was a “live issue” on the review (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152). It is apparent from the Tribunal’s brief account of the hearing that the adviser’s concerns about the original MOC opinion and whether the visa applicant met the criterion in 4005(c)(ii)(A) was discussed. The contentions that the Tribunal should have inquired further into the visa applicant’s personal circumstances lack an evidentiary basis. In any event, given the dispositive issue in this matter, no failure to comply with s.360 is established. The Tribunal recorded that it discussed Ms Lata’s circumstances in Fiji. It was clear, however, that the dispositive issue was whether she met the health criterion in cl.4005 as specified in cl.115.223.
No issue of waiver arose in relation to the subclass of visa in question. There is no provision in cl.4005 for waiver. In contrast, the identical health requirements of PIC 4007(c) may be waived by the Minister if the visa applicant satisfies all the other criteria for the visa and the Minister is satisfied that the granting of the visa would be unlikely to result in undue cost to the Australian community or undue prejudice to the access to health care or community services of an Australian citizen or permanent residence. However the health requirement applicable to a Subclass 115 visa is PIC 4005, not PIC 4007.
Moreover, contrary to any contention of a lack of procedural fairness, the Tribunal agreed to the review applicant’s request for a new medical assessment by an RMOC. It cannot be said that the Tribunal did not respond to this request. No issue arises as to whether the Tribunal took an outdated MOC opinion as correct (cf Applicant Y v Minister for Immigration and Citizenship and Another (2008) 100 ALD 544). In addition, the Tribunal invited the review applicant to comment on the opinion of the RMOC in accordance with s.359A of the Migration Act, provided her with a copy of that opinion and took into account the response of her adviser.
There is no substance to the allegation that the hearing was a hollow shell as discussed in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 at [33], that it was conducted for the sake of conducting a hearing or that it was an “empty gesture” (see NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121 at [30]). Indeed, it is notable that after the hearing the Tribunal gave the applicant the opportunity to have a new opinion from an RMOC.
It has not been established that the Tribunal was under an obligation to make further inquiries. It is for an applicant to put material before the Tribunal. The Tribunal gave the review applicant the opportunity to make post-hearing submissions and to provide further medical evidence prior to the provision of an opinion by the RMOC. The Tribunal provided copies of all the medical evidence before it (and all submissions) to the RMOC.
In light of reg.2.25A(3) and the absence of any provision for waiver of the requirements of cl.4005, no issue of other “options” arose. No failure to comply with s.360 or lack of procedural fairness is made out.
Apprehended Bias
Associated with the claims about the conduct of the hearing and failure to make inquiries is a contention that these matters and the Tribunal decision gave rise to an apprehension of bias. In particular it was contended that the manner in which the application was “summarised and finalised” would suggest to an ordinary person that the Tribunal had shut its mind and approached the hearing with a predetermined conclusion that there was no basis for the application and that it simply relied on the MOC report.
The applicant’s claims of apprehended bias are not made out on the basis of the Tribunal reasons. Indeed, there is no evidentiary basis for a contention of either actual or apprehended basis on the material before the Court (see Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 and Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507).
The application appears to contend that the Tribunal erred in failing to have regard to whether or not compliance with the health criterion could be waived. Waiver is not available in relation to the particular public interest criterion applicable in relation to the class of visa for which the applicant applied. Hence the particulars which raise issues that could be relevant to the issue of waiver of a health requirement, whether the Tribunal addressed such matters in the hearing or in its reasons for decision and the relevance of policy, do not establish jurisdictional error. The Tribunal properly recognised that waiver was not available.
Insofar as there is intended to be a more general contention in relation to policy, policy guidelines such as those contained in the Department’s procedures advice manual (PAM3) do not have the force of legislation and are not binding on the Tribunal.
It is well established that it is a rare and extreme case in which bias on the part of the Tribunal will be established simply by reference to the reasons produced by the Tribunal (see SZHVL v Minister for Immigration and Citizenship [2008] FCA 356 and SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38]). This is not such a case. The fact that the Tribunal considered itself bound to make the decision that it did on the basis of the opinion of the RMOC, is not evidence of bias or such as to give rise to a reasonable apprehension of bias. It did not simply accept the opinion. It considered whether the RMOC applied the wrong test.
This ground also raises an allegation of apprehended bias on the basis discussed by Allsop J in NADH of 2001 and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115]:
Where fact-finding has been conducted in a manner which can be described, as here, as in substantial respects unreasoned, and mere assertion lacking rational or reasoned foundation, at times as plainly and ex facie wrong and as selective of material going one way, these considerations may found a conclusion that the posited fair-minded observer might, or indeed would, reasonably apprehend that the conclusions had been reached with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly.
The Tribunal’s fact-finding in this case has not been shown to be unreasoned or lacking rational foundation or otherwise such as to lead to a conclusion of apprehended bias. The Tribunal considered whether the RMOC applied the wrong test (as the adviser contended) by reference to the principles considered in Robinson v Minister for Immigration and Multicultural Indigenous Affairs and Another (2005) 148 FCR 182. It also had regard to the requirement in reg.2.25A(3) that in deciding whether a person met the requirements of cl.4005(a), (b) or (c) it was to take the opinion of the MOC to be correct.
The evidence before the Court as to the Tribunal review, hearing and decision does not establish actual or apprehended bias. In particular, the Tribunal conducted the hearing at a time when the MOC report was before it. It responded to the concerns of the applicant and the adviser by allowing further submissions. It invited the applicant to obtain a new medical assessment from the RMOC. It explained the limits on its review and that it was required to take the medical assessment to be correct. It also gave the applicant the opportunity to provide further medical evidence for consideration by the RMOC and provided the submissions (which raised issues about whether there would be a significant cost to Australian community) to the RMOC.
If the applicant’s contention is that the Tribunal should have itself determined whether cl.4005 was met, that was not a course open to the Tribunal. The legislature has determined that the Tribunal is bound to take the opinion of the MOC or RMOC as correct provided it is an opinion of a kind authorised by the Regulations. No apprehended bias is established by virtue of the fact that the Tribunal proceeded on this basis.
Section 424A or section 359A
The next ground in the application is that there was a breach of s.424A of the Migration Act. Section 424A is not applicable in this case. It applies to reviews conducted by the Refugee Review Tribunal. The equivalent provision in relation to the Migration Review Tribunal is s.359A. I have considered this ground as a contention that there was a failure to comply with s.359A of the Act. However the particulars in relation to this ground have no connection to the facts of this case and no failure to comply with s.359A of the Act is established.
First it is contended that the Tribunal used the “delegate’s information and conclusion” in making its decision. I take this to be a submission that information in the Departmental file was within s.359A(1) of the Act as information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review and had to be put to the applicant for comment. However the Tribunal decision was based on the opinion of the RMOC which it obtained, not the earlier opinion of the MOC obtained by the delegate. Moreover, insofar as any information contained in the visa application or provided to the Department in connection with the visa application could be said to be information within s.359A(1), it would be within the exception to s.359A(1) contained in s.359A(4)(ba) as information that the applicant gave during the process that led to the decision under review.
The particulars contend that the Tribunal did not provide the applicant with the opportunity to comment on information under s.359A. That is contrary to the fact that the Tribunal put the RMOC medical opinion to the applicant for comment and, as required under s.359A, explained that the information that the visa applicant did not meet the health requirements for the visa sought was relevant to the review because the visa applicant may not be entitled to the visa. It also explained that all visa applicants are required to satisfy visa health requirements, that in conducting the review and determining whether such requirements are met the Tribunal did not have the authority to personally make or amend medical opinions; that the Tribunal was required by law to take the medical opinion to be correct and; that there was no power to waive the health requirement in relation to the visa which is the subject of the review. The Tribunal advised that this meant that the Tribunal may affirm the decision under review and the visa may not be granted.
Whether or not the Tribunal was obliged to provide the opinion of RMOC to the review applicant for comment, it did so. Hence it is not necessary to determine the first respondent’s contention that no such obligation arose as the Tribunal had no basis upon which it could have departed from the RMOC’s decision. I note however that by giving the opinion to the review applicant for comment the Tribunal afforded her the opportunity through her adviser to comment on whether the RMOC applied the wrong test, a matter the Tribunal then addressed.
If this is a complaint that the Tribunal should have put the visa applicant’s circumstances in Fiji to the review applicant for comment such material is within the s.359A(4)(b) and (ba) exceptions.
It has not been established that the Tribunal failed to comply with s.359A. This ground is not made out.
Constructive failure to exercise jurisdiction
The next ground is that there was a constructive failure by the Tribunal to exercise jurisdiction or to carry out its statutory function. The particulars to this ground are expressed in a generalised and somewhat confusing manner. The first particular is as follows:
the Tribunal has a statutory duty and function of fact finding and in the instances quoted above the Tribunal did not direct the hearing to specifics and let the hearing continue on its general “unchartered” course. The Tribunal was jurisdictionally wrong in the manner in which it convened the questions and did not compare any logical cases like HIV were granted a subclass visa.
This claim is without merit. To the extent that the applicant seeks to complain about the Tribunal’s conduct of the hearing I note again that there is no evidentiary basis to establish what occurred in the hearing. The references to a case about HIV do not appear to relate to the facts of this case.
The second particular also seems to relate to a case in which an applicant was “contaminated” (sic) with HIV. This is contrary to all of the material before the Court and the Tribunal which refers to Down Syndrome and intellectual disability. It is then suggested that there was a failure by the Tribunal to take into account compelling and compassionate grounds for a “minor down syndrome.” As indicated above, the Tribunal correctly understood that no waiver was available in relation to the particular visa claims of sought by the applicant and that it was not open to it to have regard to compelling and compassionate circumstances. This ground is not made out.
Unreasonableness
The last ground is that the decision was unreasonable and illogical. This claim is put on the basis that the Tribunal failed “to make a finding on a factual basis to support the decision” and failed “to scrutinize the claim rather than being dismissive of the claims”. In particular, issue is taken with an alleged failure by the Tribunal to consider the adviser’s contention that the RMOC opinion was flawed because the RMOC applied the incorrect test, the opinion did not reflect the applicant’s circumstances and the costs to the community was not worked out by the Tribunal.
The Tribunal’s decision has not been shown to be affected by illogicality or unreasonableness. It considered whether the RMOC applied the wrong test and whether the RMOC correctly applied the statutory criteria by reference to a hypothetical person who suffered from the form or level of the condition of the visa applicant. It was not for the Tribunal to work out the cost to the community. Rather, as considered further below, this was a matter for the opinion of the RMOC. Insofar as this is intended to be a contention that the Tribunal failed to have regard to the applicant’s submissions in relation to matters which might be said to raise humanitarian issues, contrary to this suggestion the Tribunal acknowledged that such submissions had been made and the force of such submissions, but correctly pointed out that these issues were outside the Tribunal’s jurisdiction.
As counsel for the first respondent submitted, the essence of this contention challenges the merits of the opinion of the RMOC and the Tribunal’s decision. Merits review is not available in this Court.
The effect of the opinion of the RMOC.
Counsel for the first respondent also addressed the issue of whether the Tribunal erred in its approach to the opinion of the RMOC. Under reg.2.25A(1) in determining whether the applicant met the criteria for the grant of the visa the decision maker was obliged to seek the opinion of an MOC as to whether the visa applicant met the requirements of the relevant parts of public interest criterion 4005. Regulation 2.25A(3) provides that the Minister (and hence the Tribunal) is to take the opinion of the Medical Officer of the Commonwealth on a matter referred to in subreg.(1) to be correct for the purposes of deciding whether a person meets a requirement or satisfies a criterion.
In Manokian v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 632 at 633 Davies J held that the Tribunal had no power to go behind a certificate of a Medical Officer of the Commonwealth. However in Minister for Immigration and Multicultural Affairs v Seligman (1999) 85 FCR 115 the Full Court of Federal Court pointed out that what must be provided in accordance with reg.2.25A is an opinion, that the opinion must be that of the Medical Officer of the Commonwealth who provided it, and that the subject of the opinion must be “whether a person meets the requirements of the applicable paragraph of Schedule 4” (Seligman at [48]). Where that occurs the Minister is, as the Full Court stated at [49], required by subreg.2.25A(3) to take the opinion to be “correct”. Their Honours stated that this requirement is subject to three qualifications. First the opinion must be the opinion of the Medical Officer on a matter referred to in subreg.(1) or (2) (the matter referred in subreg.2.25A(1) being whether a person meets the requirements of the relevant paragraph of Schedule 4); secondly that the Minister is to take the opinion as correct for the purposes of deciding whether a person meets a requirement or satisfies a criterion; and thirdly, that the opinion must address satisfaction of the requirements at the time of the Minister’s decision.
In this case there is nothing to suggest that the opinion was not that of the RMOC. It properly addressed whether the visa applicant met the requirements of public interest criterion 4005, in particular 4005(c)(ii)(A) that the applicant is not a person who has a disease or condition to which the following sub-paragraphs apply:
…
(ii) provision of the health care or community services relating to the disease or condition would be likely to:
(A) result in a significant cost to the Australia community in the areas of health care and community services;
…
regardless of whether the health care or community services will actually be used in connection with the applicant;
…
The opinion was expressed in relation to whether the applicant met the requirements of the relevant paragraph of Schedule 4. No issue is raised in this case about the temporal requirement that the opinion must address satisfaction of the requirements at the time of the decision maker’s decision, given that the Tribunal obtained the opinion of the RMOC dated 16 June 2008 and did not rely on the earlier decision of the MOC that had been relied on by the delegate (cf Applicant Y).
Hence the Tribunal was bound by reg.2.25A(3) to take the opinion of the Medical Officer (in this case the RMOC) as correct, provided it was an opinion of the kind authorised by the Regulations (Seligman at [66]). It has not been established that the opinion of the RMOC was not of the kind authorised by the Regulations.
The RMOC’s opinion did not fall into the error of addressing the question of whether Ms Lata’s condition, as distinct from a condition of that nature suffered by a hypothetical person, would be likely to result in a significant cost to the Australian community (see Inguanti v Minister for Immigration & Multicultural Affairs [2001] FCA 1046 at [11]). As Heerey J pointed out in that case “the whole thrust of cl 4005(c) is that the question of whether or not public funds will be incurred in looking after the particular applicant is irrelevant.”
The Tribunal assessed the opinion of the RMOC by reference to whether the RMOC had applied the appropriate test in giving the opinion (see Robinson at [35] per Siopsis J). It is clear from the opinion of the RMOC that the appropriate test was applied. As Siopsis J stated in Robinson at [43]:
A proper construction of Public Interest Criterion 4005 of the Regulations, requires the MOC to ascertain the form or level of condition suffered by the applicant in question and then to apply the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition. It is not the case that the MOC is to proceed to make the assessment at a higher level of generality by reference to a generic form of the condition.
In this instance the opinion of the RMOC listed the medical and other reports considered in forming the opinion, stated the health condition which the visa applicant had and described the nature and severity of the condition. The RMOC considered whether health care or community services were likely to be required by a hypothetical person who had the same form or level of the condition suffered by the visa applicant. Contrary to the applicant’s submission, it was not necessary for the opinion to specify what the RMOC considered to be a significant cost (see Blair v Minister for Immigration & Multicultural Affairs [2001] FCA 1014 at [46] per Carr J and JP1 and Others v Minister for Immigration and Citizenship and Another (2008) 220 FLR 37 at [13] to [15] and [37] to [38] per Riley FM).
I note that there is no suggestion that there was any dispute in the medical evidence before the RMOC, such that it could be said that it was not open to the RMOC to reach the conclusions reached. In any event, it was for the RMOC, not for the Tribunal or the Court, to determine whether provision of the health care or community services relating to the disease or condition would be likely to result in a significant cost to the Australian community.
I also note that while the review applicant submitted that the visa applicant had not and would not in the future actually incur significant costs, the RMOC properly considered the requirements of criterion 4005(c)(ii)(A) which apply “regardless of whether or not health care or community services will actually be used in connection with the applicant.”
Insofar as was contended that criterion 4005 required consideration of an applicant’s particular circumstances and personal factors, as stated in Robinson the RMOC must consider a hypothetical person (see criterion 4005). As Riley FM pointed out in JP1 at [44]:
The court in Robinson held that the legislation required consideration of the form or level of the condition or disease suffered by a particular applicant. However, there is no requirement to consider other details of a particular applicant's circumstances. The legislation is not cast in terms of the particular applicant's circumstances. It [is] cast in terms of what "a person" who has the disease or condition suffered by the applicant would be likely to need.
In this case the RMOC applied the statutory criteria to a hypothetical person who suffered from the form or level of the condition affecting the applicant as specified in Robinson. No jurisdictional error is apparent in the Tribunal’s consideration of the opinion of the RMOC or in its determination that it was bound to accept that opinion to be correct for the purposes of deciding whether the visa applicant satisfied public interest criterion 4005.
I note that in setting out the evidence before it the Tribunal described the RMOC opinion as a decision that the visa applicant “did” (sic) satisfy the requirements of PIC 4005. However it is clear from the whole of the decision, in particular the findings and reasons, that this was a typographical error and the Tribunal understood that the RMOC’s opinion was that the visa applicant did not satisfy PIC 4005 and that it made its decision on that basis. As Weinberg J found in SZLPH v Minister for Immigration Citizenship [2008] FCA 744 at [29] – [32] no arguable jurisdictional error arises out of such a typographical error. It was not capable of affecting the exercise of the Tribunal’s power (also see “CCC” v Minister for Immigration and Multicultural Affairs [2001] FCA 682 which involved a decision in which the word “not” was omitted from a finding and Foroghi v Minister for Immigration and Multicultural Affairs [2001] FCA 1875).
Finally, the review applicant’s oral submissions in relation to compassionate issues are not, as I endeavoured to explain to her, matters that establish jurisdictional error on the part of the Tribunal or matters that can be taken into account by the Court on review of the decision of the Tribunal. I note that her former adviser foreshadowed an application to the Minister under s.351 of the Act based on compassionate claims. These are not, however, matters that can be addressed by the Court on review of the Tribunal decision.
As no jurisdictional error has been established the application must be dismissed.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 2 June 2009
- AGLC
- Pillay v Minister for Immigration [2009] FMCA 517
- Case
- [2009] FMCA 517
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the Minister's decision to cancel the visa was lawful and whether the refusal to grant a bridging visa was justified. The applicant argued that the decision was unreasonable, as it was based on an error of law and an overestimation of the risk posed by the applicant. The Minister contended that the decision was well within their statutory powers and was based on a proper assessment of the facts.
Justice Bromberg considered the statutory framework governing visa cancellations and the principles of administrative law that apply to such decisions. The court found that the Minister's decision was not tainted by jurisdictional error, and the assessment of the risk posed by the applicant was reasonable. The court also held that the refusal to grant a bridging visa was lawful, as it was within the Minister's discretion to refuse such a visa. Consequently, the court dismissed the application, upholding the Minister's decision.
Orders
Orders of the court
1.
That the application be dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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