Pokharel v Minister for Immigration
[2016] FCCA 3295
•19 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| POKHAREL v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 3295 |
| Catchwords: MIGRATION – Application for a Skilled (Residence) (Class VB) visa refused – Judicial review – Jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.474, 476 Migration Regulations 1994, regs.885.22, 885.226, 885.32, 2.25A, Public Interest Criteria 4005 |
| Cases cited: Applicant Y v Minister for Immigration and Citizenship [2008] FCA 367 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR323 Robinson v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 148 FCR 182 |
| Applicant: | KRISHNA HARI POKHAREL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 153 of 2016 |
| Judgment of: | Judge Howard |
| Hearing date: | 17 October and 5 December 2016 |
| Date of Last Submission: | 5 December 2016 |
| Delivered at: | Brisbane |
| Delivered on: | 19 December 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Rebetzke |
| Solicitors for the Applicant: | Salvos Legal Humanitarian |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
A writ of certiorari issue directed to the second respondent quashing its decision dated 27 January 2016.
A writ of mandamus issue directed to the second respondent requiring it to reconsider and determine the applicant’s application for review made on 15 March 2015 according to law.
That the first respondent pay the applicant’s costs, including (but not limited to) costs of 17 October 2016 and 5 December 2016.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 153 of 2016
| KRISHNA HARI POKHAREL |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
On 16 July 2012 the applicant lodged an application for a visa – namely a Skilled (Residence) (Class VB) visa. At that time the applicant’s wife also applied for a visa as a member of the applicant’s family unit.
On 26 June 2013 the applicant informed the first respondent that the applicant’s wife was pregnant. On 13 March 2014 the applicant added his daughter, Avaha Pokharel to the application for the visa.
The Minster’s delegate refused the application for the visa on 27 February 2015. It was said that the applicant had not satisfied the requirements of clause 885.226 of the Migration Regulations 1994. It was said that the applicant’s daughter, Avaha Pokharel, did not meet the health requirements contained in public interest criteria (PIC) 4005.
Clause 885.226 of the Regulations relevantly provides:-
“885.22
Criteria to be satisfied at time of decision
…
885.226
Each person who is a member of the family unit of the applicant, and who is also an applicant for a sub class 885 visa, is a person who:
(d) satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4010 and 4020…”
The public interest criteria are contained in Schedule 4 of the Migration Regulations 1994. Public interest criteria 4005 states, inter alia:-
“4005
(1) The applicant:
…
(c) is free from a disease or a 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 (2); and
(ii) the provision of the health care or community services would be likely to:
(A) result in 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 of community services will actually be used in connection with the applicant.
…
(2) For subparagraph (1) (c) (i), the period is:
(a) for an application for a permanent visa – the period commencing when the application is made…”
Regulation 2.25A of the Migration Regulations is also relevant. That regulation relevantly provides:-
“2.25A Referral to Medical Officers of the Commonwealth
(1) In determining whether an applicant satisfies the criteria for the grant of a visa, the Minister must seek the opinion of a Medical Officer of the Commonwealth on whether a person (whether the applicant or another person) meets the requirement of paragraph…4005(1)(c)…
…
(3) 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 applicant lodged an application for review of the delegate’s decision to the Administrative Appeals Tribunal (“AAT”) on 15 March 2015.
In November 2015 the Tribunal wrote to the applicant inviting the applicant to attend an AAT hearing and specified that the hearing was to take place in Brisbane at 9:30am on 27 January 2016. That letter from the Tribunal is dated 13 November 2015 and is contained at page 282 of the Court Book. The Court Book is exhibit 1 in these proceedings.
On 8 December 2015 the applicant’s lawyers, Stephens & Tozer Solicitors of Brisbane wrote to the Tribunal requesting an adjournment of the AAT hearing.
At page 287 of the Court Book there is a case note numbered 15819396. It shows that on 16 December 2015 a representative of the AAT telephoned the applicant’s solicitor (representative) and informed the applicant’s solicitor that, “the request for hearing postponement was refused and as such, the hearing will proceed as scheduled.”
On 15 January 2016 the Tribunal confirmed in writing that the request for an adjournment dated 8 December 2015 had been refused.
On 15 January 2016 Stephens & Tozer, solicitor on behalf of the applicant, again requested in writing that the hearing be postponed. Those solicitors noted in their letter (court book page 290) inter alia:-
“AN UPDATE
We have been able to obtain medical reports and records from the Lady Cilento Children’s Hospital from 29 November 2014 to present. However, we are yet to receive medical records and reports from the Mater Health Service for the period of 4 January 2014 to 28 November 2014. Additionally, we are yet to obtain the Department of Immigration and Border Protection’s file and we also need to engage medical experts and obtain their reports. We have also requested access to the Administrative Appeal Tribunal’s file on this matter.
As previously communicated and as you can appreciate, this will require some time. Accordingly, we again, respectfully request an adjournment of the hearing scheduled for 27 January 2016. We note in this regard the Registry’s verbal advice on the 16 December, an adjournment of the Application, if not granted beforehand, can be again made on the 27 January 2016.”
By email dated 18 January 2016 – the Tribunal stated, inter alia (in an email addressed to the applicant’s lawyers):-
“I refer to your latest request for hearing postponement dated 15 January 2016.
The Tribunal has had regard to your request, however, the Member, as in previous requests, has made a decision to refuse it.
…”
At the hearing conducted by the AAT on 27 January 2016 the applicant’s representative again requested a postponement/adjournment of the hearing. The request was refused.
In a decision dated 27 January 2016 the Tribunal affirmed the delegate’s decision.
On 19 February 2016 the applicant filed an application for judicial review in the Federal Circuit Court of Australia.
In the application filed by the applicant on 19 February 2016 the applicant raised four grounds of review.
The hearing of the applicant’s application for judicial review commenced on 17 October 2016. At that time, counsel for the applicant, Mr Rebetzke, sought and obtained the leave of the Court to file amended grounds of application. The amended grounds of application included ground number 5.
The amended grounds of application read as follows:-
“1. The Second Respondent’s decision was affected by jurisdictional error in failing to act reasonably in refusing the applicant’s request for adjournment to obtain material relevant to the review.
2. The Second Respondent denied the Applicant natural justice.
3. The decision to proceed with the review was unfair and unjust, which abandoned substantial justice and the merits of the case.
4. The Second Respondent thereby contravened Part 5 of the Migration Act 1958, particularly sections 353, 375A, 360 and 363(1).
5. The decision of the Second Respondent was otherwise affected by jurisdictional error:
Particulars:
a) The Second Respondent failed to determine whether Public Interest Criterion 4005 was satisfied as at the date of the hearing.
b) The Second Respondent misconceived its task or asked itself a wrong question and failed to appreciate the true extent of its decisional freedom (as to whether it was obliged to take opinions of Medical Officers of the Commonwealth to be correct; whether it should obtain a further opinion of a Medical Officer of the Commonwealth; and whether it should accede to an adjournment request “with a view to seeking a third opinion of a Medical Officer of the Commonwealth”) by
i. Failing to identify which opinion of a Medical Officer of the Commonwealth it took to be correct;
ii. Failing to consider whether either of the opinions of the Medical Officers of the Commonwealth reflected the level or severity of the applicant’s daughter’s condition as at the date of the hearing and, accordingly, whether they were opinions of the kind authorised by the regulation which the Tribunal was entitled and obliged to take as correct.
c) Alternatively, there was no evidence and intelligible justification for a conclusion that the level or severity of the applicant’s daughter’s condition had not changed between the date of the respective opinions of the Medical Officers of the Commonwealth and the date of hearing such that the Tribunal was authorised and obliged to take the opinions as correct, and accordingly, the decision is legally unreasonable.”
Counsel on behalf of the applicant abandoned grounds 2, 3 and 4 at the hearing.
At the hearing commenced on 17 October 2016 – some oral submissions were made by counsel on behalf of the applicant. The solicitor who appeared on behalf of the first respondent requested an adjournment to allow time for some further submissions to be prepared in light of the amended grounds of application. That adjournment was granted and the second day of the hearing took place on 5 December 2016.
Ground Number 1 and Ground Number 5
The health criteria contained in PIC 4005 must be satisfied – at the time of the decision. In this regard I note clause 885.22 and clause 885.32 of Schedule 2 of the Migration Regulations 1994.
At the time of the decision (which was the same date as the hearing, 27 January 2016) the child, Avaha, was 2 years and 23 days old.
In written submissions provided by the first respondent and filed on 31 October 2016 the first respondent argues that the applicant’s reference to the date of the hearing “mischaracterised the task of the Tribunal”. It is further submitted on behalf of the first respondent that the relevant criteria was required to be satisfied, “as at the time of the decision”. This appears to be a reference (by the first respondent) to the original delegate’s decision which was made on 27 February 2015. The first respondent further submits that the, “Tribunal hearing had no bearing on that criteria” – and then refers to clause 885.225 (which appears to be a typographical error because the relevant regulation is clause 885.226).
The applicant has responded to that submission of the first respondent. The applicant points out that what is required is an examination of the task of the Tribunal and an examination of the nature of the review that the Tribunal was required to carry out. In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 341 from paragraph 10, Chief Justice French states:-
“Section 348 provides that if an application for review of an MRT-reviewable decision is properly made “the Tribunal must review the decision”. It may, for the purposes of the review, exercise all the powers and discretions that are conferred by this Act on the person who made the decision”…. The review function of the tribunals created by the Act is sometimes called “inquisitorial”. That designation is a characterisation of their function which distinguishes it from adversarial proceedings. The word “review” “has no settled pre-determined meaning; it takes its meaning from the context in which it appears”. As appears from the nature of the powers conferred on these tribunals, the review each must undertake involves a fresh consideration of the application which led to the decision under review. The review must be based on the evidence and arguments placed before the tribunal and any other relevant information which the tribunal itself obtains. Each tribunal must identify for itself the issues that arise in the application before it. It is not confined to the issues considered by the delegate…” (underlining added; references omitted).
I agree with the submission made on behalf of the applicant in relation to this issue. The Tribunal stands in the shoes of the decision maker. The Tribunal is required to conduct a fresh consideration of the original application. Accordingly, the relevant date of the decision referred to in clause 885.226 of the Regulations is the date of the Tribunal decision – which in this case was also the date of the Tribunal hearing namely, 27 January 2016.
This interpretation of the task of the Tribunal appears to be implicitly accepted by the first respondent in paragraph 17.5 of the written submissions filed 31 October 2016. In that paragraph the first respondent has submitted that, “the most recent MOC opinion was less than one year old as at the date of the Tribunal’s decision”. There does not seem to be any reason why the first respondent would make that submission if, as appears to be contended in paragraph 15 of those written submissions, the first respondent is maintaining that the relevant “decision” referred to in clause 885.226 is in fact the delegate’s decision. As is apparent, I accept the submissions made on behalf of the applicant in relation to this issue.
The Tribunal decision states in paragraphs 12 – 16 inclusive (court book paged 304):-
“12. On the evidence before the Tribunal, a MOC opinion is required. As noted above, the Tribunal must take the MOC opinion as correct, but must be first be satisfied the MOC applied the correct test in forming the opinion: Robinson v MIMIA (2005) 148 FCR 182 and Ramlu v MIMIA [2005] FMCA 1735. That is, the opinion must identify the medical condition to which the public interest criterion has been applied, and the form or level of the condition suffered by the applicant, and the MOC must have applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition.
13. Reports of MOCs dated 26 June 2014 and 18 February 2015 state the third named applicant has a mild development delay. The opinion states her condition is a disease or condition to which paragraphs 4005(1)(c)(ii)(A) of Schedule 4 of the Regulations apply.
14. The Tribunal has had regard to the Federal Court decisions and is satisfied that the MOC did not apply the wrong test in this matter.
15. Accordingly, based on the opinion of the MOC, the Tribunal finds that the third named applicant does not satisfy PIC 4005(1)(c)(ii)(A).
16. Accordingly, based on the opinion of the MOC, the first named applicant does not satisfy cl.885.225.”
The two reports of the Medical Officers of the Commonwealth (MOCs) are respectively dated 26 June 2014 and 18 February 2015. As noted in paragraph 13 of the Tribunal’s decision both of those reports conclude that the child (referred to as the third named applicant in the Tribunal’s decision) has “a mild development delay”.
In paragraph 5 of the Tribunal’s decision it is stated:-
“5. The representative requested a postponement with a view to seeking a third opinion of a Medical Officer of the Commonwealth. The Tribunal notes that 2 previous opinions have been obtained. The Tribunal further notes that the application for review was lodged on 15 March 2015, and 9 months later the applicant has yet to even request a further opinion. It is apparent from the representative’s letter dated 8 December 2015 that the representative only received instructions to act on that date. The representative indicated that he was in the process of collating the third named applicant’s medical records, and that he had nothing of substance to put before the Tribunal at this point. The Tribunal is not minded to reward the applicant’s failure to take steps between March and December 2015 with a postponement, particularly in circumstances where the applicant has previously obtained a second opinion.”
The Tribunal stated in paragraph 5 of its decision quoted above, “the Tribunal notes that 2 previous opinions have been obtained”.
What the Tribunal failed to note in its decision is the fact that the two MOCs (which appear in the court book at pages 229 and 257 respectively) were both based upon the one medical report of Doctor Janka Paprckova, paediatrician. Doctor Paprckova had provided a report dated 28 May 2014. That report prepared by Doctor Paprckova was based upon an examination/consultation which took place between Doctor Paprckova, the child Avaha Pokharel (born 4 January 2014) and the child’s parents. That consultation took place at the Mater Children’s Hospital in Brisbane on 20 April 2014. As at the date of that consultation the child was aged only 3 months and 16 days.
Both of the MOCs (26 June 2014 and 18 February 2015) confirm that the child Avaha had been diagnosed with mild developmental delay. The form of words used in the two MOCs is different. However, both MOCs confirmed that, in relation to the child, “the condition is gross motor delay associated with Trisomy 21…”. Trisomy 21 is more commonly referred to as Down’s Syndrome.
Relevantly, I note that the original medical report of Doctor Paprckova (contained at pages 221-224 of the court book) notes on the last page, inter alia:-
“Almost all children with Down’s syndrome are intellectually disabled; however the degree of intellectual impairment is highly variable.”
The fact that the two MOCs described the child’s condition as “mild developmental delay” is particularly relevant.
As noted, the two MOCs relied upon an examination of the child that took place when the child was only 3 months and 16 days old. The Tribunal hearing took place after the child’s second birthday.
In written submissions filed 30 September 2016, counsel on behalf of the applicant noted at paragraphs 19-23 inclusive:-
“19. There are two features of the MOC opinions that are relevant.
20. First, both expressed that Avaha would be “likely to require health care and/or community services during the period specified above”. However, no period is specified.
21. Second, both identified the condition as “mild developmental delay” in circumstances where both opinions were based upon a report prepared after examination of a baby at age 3 months and 16 days but the Tribunal hearing took place after the child’s second birthday.
22. While it may have been open for the Tribunal to conclude that each of the MOC opinions were validly formed with respect to a child of 3 months, 5months or 1 year of age, the Tribunal could not have been satisfied that the opinions were valid as for a 2 year old child. It can reasonably be expected that a 2 year old who exhibited delayed development of a mild degree at 3 months, 5 months and 1 year will not necessarily be developmentally delayed to the same degree after that child’s second birthday. The severity or level of the developmental delay may be different; it may be the same: whether or not it was is a question not addressed by evidence but may have been addressed by the very evidence of which the applicant sought an adjournment to obtain.
23. Where the nature of the condition is developmental delay in a child of such a tender age, the child’s age must necessarily be inextricably part of the form or level of the condition. So much is to be gleaned from the identification of the child’s age in each MOC opinion. It follows that at the date of the hearing, neither opinion remained an opinion relevant to the form or level or severity of the condition then suffered by the applicant. It follows that the Tribunal was therefore not bound to take the MOC opinions as correct. The Tribunal erred in considering that it was bound to accept them as correct.”
I accept these submissions on behalf of the applicant.
By clause 885.22 and clause 885.32 of the Regulations – the Tribunal was required to be satisfied that the MOCs addressed the correct test as at the time of the decision. Given that both MOCs were based upon the one medical report and noting further that that medical report had been prepared when the child was only 3 months and 16 days old – it cannot be said that the MOCs addressed the correct test as at the time of the decision. Both MOCs do in fact refer to some other documents – but there can be no doubt that both MOCs are based upon the one medical report of Doctor Paprckova.
In Robinson v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 148 FCR 182 it was noted by Siopis J:-
“Reasoning
41. In (Minister for) Immigration and Multicultural Affairs v Seligman (1999) 85 FCR 115 the Full Court at [66] said:
‘... The delegate is only entitled and obliged to take [the medical officer’s] opinion as correct if it is an opinion of a kind authorised by the regulations and, it may be added, validly so authorised. If it is not or if it travels beyond the limits of what is authorised, then to act upon it as though it is binding is to act upon a wrong view of the law and to err in the interpretation of the law or its application, a ground of review for which s 476 of the Act provides.’
…
The proper test
43. I turn to deal with the first issue. In my view, the applicant’s submission as to the appropriate test to be applied, is to be accepted. 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.” (underlining added).
As was noted by Siopis J in Robinson (supra at paragraph 41) – the Tribunal (in this case) is only entitled and obliged to take the MOCs as correct if those opinions were of a kind which were validly authorised by the Regulations. To again use words utilised by Siopis J in Robinson (supra at paragraph 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 third named applicant (the child in question) – as at the date of the decision. This is required by clauses 885.22 and 885.32 of the Regulations. In the particular circumstances of this case – the MOCs were not “of a kind authorised by the regulations” and, accordingly, the Tribunal fell into error by considering itself bound to act upon the opinions. Further, in acting upon the MOCs as though they were binding upon the Tribunal – meant that the Tribunal in this case was acting upon a wrong view of the law and erred in the interpretation of the law (or its application). (Once again I have utilised words used by Siopis J in Robinson).
To put it another way, I agree with the written submission provided on behalf of the applicant (filed 30 September 2016) where it was stated:-
“15. …the Tribunal erred in holding that the two MOC opinions previously obtained were sufficient to discharge the duty to obtain a valid MOC opinion.”
I also note the decision of Tamberlin J in Applicant Y v Minister for Immigration and Citizenship [2008] FCA 367. From partway through paragraph 18 His Honour states:-
“18. …The issue which arises for determination therefore is whether the Tribunal fell into jurisdictional error when it took as correct an opinion of an MOC which was given 23 months before the Tribunal made its decision, and which, as a result of this lapse in time, could not strictly be said to address whether the requirements in par 4007(1)(c) were satisfied at the time of the Tribunal’s decision.
19. In practical terms, the requirement in Seligman 85 FCR at 127 that the MOC’s opinion must address satisfaction of relevant requirements as at the time of the Minister’s decision cannot be read literally. For example, where the Tribunal is reviewing the Minister’s decision, it cannot be reasonably suggested that the Tribunal should be required to have an MOC’s opinion as at the same date as its decision. Generally, the Tribunal will reserve its decision at the end of the hearing and it should be entitled to rely on an opinion which is current and reliable at the date of the hearing, and should not be required to seek or consider a fresh opinion bearing the same date as that on which it eventually hands down its decision.
20. However, in addressing this question, the Tribunal cannot generally disregard a substantial lapse in time between the issue of an MOC’s report and the making of its decision. In some cases, for example, it may be that an MOC’s opinion expressed many years before the Tribunal’s decision, on its face, by reason of the lapse of time and other considerations, will necessitate further investigation as to that opinion’s relevance, currency and reliability. Whether further investigation is required will depend on an assessment of all the circumstances of the case, including the amount of time that has elapsed between the issue of the MOC’s report and the Tribunal’s decision, any evidence of change (and, in particular, improvements) in the applicant’s health, and the degree to which any other medical opinions demonstrate a lack of currency and reliability in the opinion of the MOC.
21. In my view, the circumstances in this case demonstrate that the Tribunal fell into jurisdictional error when it took the MOC’s opinion as correct because, applying the Full Court’s statement in Seligman 85 FCR at 127, that opinion could not be said to address whether the requirements in par 4007(1)(c) were satisfied at the time of the Tribunal’s decision. Three considerations lead me to this conclusion.
22. First, the lapse in time in this case between the date of the MOC’s opinion and the rendering of the Tribunal’s decision was almost two years. Although such a delay may not be uncommon or excessive in many visa and judicial review applications, two years can be a long period in which an individual’s health may improve or deteriorate significantly. Consideration of an outdated report could be unacceptable because the Tribunal, pursuant to its obligation under reg 2.25A(3), will act on a report which cannot be said to be a full and proper assessment of the applicant’s health or the cost of treatment at the time the Tribunal’s decision was made. In other words, the Tribunal, by consulting an out of date report, risks taking into account irrelevant considerations, namely, information and medical opinions which no longer apply to an applicant. In my view, these observations apply to the lapse in time between the issue of the MOC’s report and the making of the Tribunal’s decision in this case.” (underlining added).
I again refer to paragraph 17.5 of the first respondent’s submissions filed 30 October 2016. That is the paragraph where it was submitted that, “the most recent MOC opinion was less than one year old as at the date of the Tribunal’s decision”. In that paragraph also the first respondent refers to the decision in Applicant Y (supra). The inference to be drawn from the submission in paragraph 17.5 is that the Tribunal in the present case had before it evidence (namely a MOC opinion) which was less than one year old as the date of the Tribunal’s decision. For the reason stated above this submission is misleading. The circumstances of each case are different. Whilst it is the case that the most recent MOC opinion was in fact less than 12 months old as at the date of the Tribunal’s decision – the relevant point in this case (as noted above) is that both of the MOCs are substantially and significantly based upon the one medical report – namely the examination/consultation which was conducted by Doctor Paprckova on 20 April 2014 and referred to in Doctor Paprckova’s written report dated 28 May 2014. A proper examination of the facts in the present case, therefore, shows that the evidence upon which the Tribunal was relying on 27 January 2016 was evidence that was approximately 21 months old.
I note, of course, that the diagnosis of “mild developmental delay” is within a diagnosis of Trisomy 21. However it is worth reiterating at this stage that the report of Doctor Paprckova (especially at page 224 of the Court Book) – upon which the two MOC opinions were based states on its face that, “the degree of intellectual impairment is highly variable” – in children with Down’s Syndrome.
For the reasons stated – the decision of the Tribunal was affected by jurisdictional error.
Ground 5(a) and ground 5(b)(ii) of the amended grounds of application have been (for the reasons stated above) made out.
In particular, the Tribunal failed to determine whether Public Interest Criterion 4005 was satisfied as at the date of the decision (note ground 5(a) of the amended grounds of application filed by leave on 17 October 2016).
Further, the Tribunal misconceived its task or asked itself a wrong question and failed to appreciate the true extent of its decisional freedom (as to whether it was obliged to take opinions of Medical Officers of the Commonwealth to be correct; whether it should obtain a further opinion of a Medical Officer of the Commonwealth; and whether it should accede to an adjournment request “ with a view to seeking a third opinion of a Medical Officer of the Commonwealth”) by – failing to consider whether either of the opinions of the Medical Officer of the Commonwealth reflected the level or the severity of the applicant’s daughter’s condition as at the date of the decision (hearing) and, accordingly, whether they were opinions of the kind authorised by the Regulation which the Tribunal was entitled and obliged to take as correct.
The Tribunal also, ought to have identified which opinion of a Medical Officer of the Commonwealth it took to be correct. As pointed out earlier – the wording of the two opinions is somewhat different. However overall, the diagnosis of “mild developmental delay” was identical in the two MOC opinions. I do not necessarily think that ground 5(b)(i) has been made out. Having regard to the other conclusions I have reached – it will not make any difference.
In several respects grounds 1 and 5 of the amended grounds of application are interlinked. The Tribunal’s conclusion that it was obliged to rely upon the two MOC opinions was not correct – in circumstances where those MOC opinions were not opinions of the kind authorised by the Regulations (in this particular case because those opinions did not provide evidence of the form and/or level and/or severity of the child’s condition as at the date of the hearing). The failure by the Tribunal to appreciate that it was not entitled to regard the MOC opinions as correct was probably the main reason why the Tribunal refused to accede to the applicant’s request for an adjournment.
Paragraph 5 of the Tribunal’s decision refers to the request for a postponement of the hearing. It is useful to reiterate the first two sentences of paragraph 5 where the Tribunal stated:-
“The representative requested a postponement with a view to seeking a third opinion of a Medical Officer of the Commonwealth. The Tribunal notes that 2 previous opinions have been obtained.”
By failing to appreciate that it (the Tribunal) was not entitled to rely upon the two previous opinions (those opinions not being valid or authorised opinions as at the date of the decision/hearing) leads the Court to conclude that the refusal to grant the adjournment (referred to as a postponement) amounted to jurisdictional error because the refusal was legally unreasonable.
In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 per Hayne, Kiefel and Bell JJ it was stated:-
“76. As to the inferences that may be drawn by an appellate court, it was said in House v The King (1936) 55 CLR 499 that an appellate court may infer that in some way there has been a failure properly to exercise the discretion “if upon the facts [the result] is unreasonable or plainly unjust”. The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.
I agree with the submission made on behalf of the applicant (note paragraph 19, 20 and 21 of the applicant’s written submissions filed on 14 November 2016) that there was, in this case, indeed, no evident and intelligible justification for any conclusion that the level or severity of the child’s condition had not changed between the date of the two MOC opinions and the date of the decision such that the Tribunal was authorised, entitled or obliged to take the two opinions (or even one of them) as correct. Accordingly, the Tribunal’s decision is legally unreasonable.
Conclusion
In this case, the Tribunal’s decision is a privative clause decision under section 474(2) of the Migration Act 1958 (Cth) and is not reviewable under section 476 of the Act.
The applicant’s application for judicial review of the Tribunal’s decision can only therefore be successful if the applicant has been able to establish jurisdictional error. There are two High Court authorities which it is worthwhile to refer to at this stage. In Craig v South Australia (1995) 184 CLR 163 at page 179 the High Court discussed the concept of jurisdictional error. Brennan, Deane, Toohey, Gaudron and McHugh JJ stated at page 179, inter alia:-
“At least in the absence of a contrary intent in the statute or other instrument which established it, an administrative tribunal lacks authority either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with the law. That point was made by Lord Diplock in In re Racal Communications Ltd [1981] AC 374:
“Parliament can, of course, if it so desires, confer upon administrative tribunals or authorities power to decide questions of law as well as questions of fact or of administrative policy; but this requires clear words, for the presumption is that where a decision making power is conferred on a tribunal or authority that is not a court of law, Parliament did not intend to do so."
The position is, of course, a fortiori in this country where constitutional limitations arising from the doctrine of the separation of judicial and executive powers may preclude legislative competence to confer judicial power upon an administrative tribunal. If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question. to ignore relevant material, to rely on irrelevant material or, at least in some circumstances. to make an erroneous finding or to reach a mistaken conclusion. and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.” (emphasis and underlining added).
In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 McHugh, Gummow and Hayne JJ from paragraph 82 of the decision again discussed the term, “jurisdictional error”. Their Honours referred to the passage from Craig (supra) – as contained in the bold italics in the last preceding paragraph of these reasons for judgment. In Yusuf (supra) Their Honours continued from part way through paragraph 82:-
“Jurisdictional error” can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.” (emphasis added).
At the very least in this case – the Tribunal relied upon irrelevant material namely, the two MOC opinions, and the Tribunal’s exercise or purported exercise of power was thereby affected. For the reasons stated in these reasons for judgment – I have come to the conclusion that ground 1, ground 5(a), ground 5(b)(ii) and ground 5(c) of the amended grounds of application filed by leave on 17 October 2016 have been made out by the applicant. Jurisdictional error has been established.
I also note the submission made by the applicant to the extent that upon a proportionality analysis it would have to be said that the exercise of power (by the Tribunal) to refuse a short adjournment (or an adjournment) was disproportionate to what was at stake to the applicant (and his family) and what he might have reasonably have hoped to secure through an adjournment to enable the obtaining of further medical evidence. I note paragraph 77 of the Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 and Li (supra) at paragraph [30] per French CJ. In Singh (supra) at 77 the Full Court of the Federal Court of Australia used words which are, essentially, applicable in the present case:-
“77. If a proportionality analysis were undertaken, it could be said that the exercise of power to refuse a short adjournment in these circumstances was disproportionate to the Tribunal’s conduct of the review to that point, to what was at stake for the first respondent, and what he might reasonably have hoped to secure through a re-mark.”
Having concluded that the Tribunal did commit jurisdictional error (as outlined) I have also come to the conclusion that, as a matter of discretion, the matter should be sent back to the Tribunal for determination according to law. In reaching this conclusion I have had regard to the affidavit of Jayanti Shreshtha Pokharel (the applicant’s wife). That affidavit was filed on 14 September 2016 and is relied upon by the applicant in these judicial review proceedings. That affidavit exhibits letters from various medical professionals. Those letters were signed by the various medical professionals in February 2016 – shortly after the date of the Tribunal’s hearing and decision. In a letter dated 19 January 2016 and signed on 15 February 2016 Doctor Nigel Dore of the Lady Cilento Children’s Hospital states in relation to the child, inter alia:-
“…My expectation is that her level of trisomy 21 appears to be relatively high functioning and I would not expect her to be a burden on the Australian tax payer in the future. I would support her parents’ application to remain in Australia in the future.”
In a letter dated 10 February 2016 and signed on 17 February 2016 Doctor Andrew Cotterill of Lady Cilento Children’s Hospital states, in relation to the child inter alia:-
“…She is a healthy young lady who is thriving and being well cared for. She will not lead to significant costs to the Australian Government on the basis of her current medical condition.”
In a letter dated 19 January 2016 and signed on 22 February 2016 Doctor Margaret-Anne Harris of Lady Cilento Children’s Hospital states:-
“From a respiratory aspect, Ava is very well and I would not expect any significant long-term problems over the coming decades…I thus do not believe that Avaha will pose any increased health costs on the community in her coming decades, above and beyond that for a normal individual within Australian society.”
In a letter dated 22 February 2016 Doctor Richard Brown, General Paediatrician states:-
“Avaha does not have any particular health issues at this stage that are likely to impact significantly on her long-term health.
In view of the diagnosis of Down Syndrome, Avaha will most likely continue to have some degree of language delay and delay of cognitive development. The severity of this is difficult to predict at this stage, although her current developmental level suggest that this is unlikely to be severe…I would anticipate further improvement in her language and cognitive development with appropriate intervention over the next few years. I consider that it would be unlikely that Avaha would need to attend a Special School. I consider that it is more likely that she could attend a mainstream school with appropriate support.”
The content of the reports quoted above suggest that the Tribunal may, upon a consideration of those (and other possible reports), reach a different decision. At the very least it is evidence to convince this Court that the matter should be returned to the Tribunal for determination according to law.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Howard
Date: 19 December 2016
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