Raven, T.A. v Minister for Immigration, Local Government & Ethnic Affairs
[1991] FCA 716
•22 NOVEMBER 1991
Re: TIMOTHY ALAN RAVEN
And: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. Q G142 of 1990
FED No. 716
Administrative Law - Migration
(1991) 25 ALD 689 (extracts)
COURT
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Heerey J.(1)
CATCHWORDS
Administrative Law - judicial review - relevant considerations - non- existence of a fact - unreasonableness
Migration - application for resident status - health and medical requirements
Administrative Decisions (Judicial Review) Act 1977
Migration Act 1958: Ss. 5(2)(b) and (g), 5(3)(b), 6A(1)(b) and (e)
Migration Regulations 1989
HEARING
BRISBANE (Judgment delivered in MELBOURNE)
#DATE 22:11:1991
Counsel for the Applicant: Mr D. O'Gorman
Solicitors for the Applicant: Robertson O'Gorman
Counsel for the Respondent: Ms M. Wilson
Solicitors for the Respondent: Australian Government Solicitor
ORDER
The application be dimissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
The applicant Timothy Alan Raven is a citizen of the United States of America, having been born in that country on 29 September 1961.
The applicant arrived in Australia on 9 August 1986 holding a single entry tourist visitor visa and was granted a temporary entry permit valid until 9 February 1987. On 6 February 1987 he lodged an application for resident status under s.6A(1)(e) of the old Migration Act 1958. The circumstance said to constitute "strong compassionate or humanitarian grounds" was that he had formed a homosexual partnership with an Australian citizen. On 13 June 1989 the applicant and the man in question were interviewed in the Brisbane office of the Immigration Department. The interviewing officer came to the conclusion that the relationship was a genuine one. A report was submitted to the then Minister for Immigration, Local Government and Ethic Affairs who approved the recommendation that the applicant be granted "a temporary entry permit with permission to work, subject to satisfactory medical and character checks, until such time as the applicant and (his partner) have cohabited for a total of four years (August 1990), after which time the case will be further assessed in respect of the relationship and a decision on the grant of resident status made if that assessment is satisfactory".
Subsequent interviews with the applicant in the following year revealed that his relationship with his partner had been "on the rocks" since shortly after the couple moved from Sydney to Brisbane in January 1988 and they had ceased co-habitation about six months prior to the interview in June of 1989. In September 1989 medical tests showed that the applicant was HIV positive. On 11 November 1989 the applicant married a lady who is an Australian citizen. She was aware prior to the marriage of the applicant's medical condition.
On 30 May 1990 a Commonwealth Medical Officer ("CMO"), Dr George William de Meyrick, provided a written report. This was on a printed form No. 884 which I was told is appropriate for use under the Migration Regulations which came into effect at the end of 1989 although it was common ground before me that the applicant's application is to be dealt with under the old Migration Act 1958. The relevant part of the form is as follows:
OPINION (applicable box/es to be ticked and spaces completed) In my opinion the above mentioned person:
x does not meet the prescribed health criteria for the duration of stay and/or activity indicated above for the following reason/s as set out in the Migration Regulations at Schedule 1, Items 9 and 10, ie: x 9(c) has a disease or condition, which, during the proposed period of stay in Australia, would
x (iv) result in their becoming a significant charge on public funds;
for the specific reason/s that (must be completed in all cases where health requirement not met)
Prognosis is not good in this condition. Future care and medication will most probably be considerably expensive. (The last two sentences are in handwriting)
A decision was made on 20 September 1990 to refuse the application for resident status. The decision was made under s.6A(1)(b) and (e) of the old Migration Act 1958. The decision-maker determined that the applicant did not meet the prescribed health criteria. Although the applicant was married to an Australian citizen, the decision-maker was not prepared to waive normal medical requirements. The decision-maker also commented that the applicant had deceived the Department about his former homosexual relationship to try to gain permanent residence. The decision-maker went on to say that the adverse aspects of the case far outweighed any of the compassionate grounds which had been put forward by the applicant and his wife.
The applicant lodged an application for reconsideration by the Immigration Review Panel. This was supported by his wife, by a Senior Pastor of the Christian Family Centre and by Dr Richard John Kemp who has for 10 years been Director of the Infectious Diseases Unit at the Royal Brisbane Hospital. His work involves treating the majority of AIDS patients in Brisbane and currently he has responsibility for more than 200 persons. In a letter dated 12 October 1990 submitted by the applicant to the Panel Dr Kemp stated:
TO WHOM IT MAY CONCERN:
I examined Mr Tim Raven in December last year and have seen him again recently.
He is HIV positive, but when seen in December and again this month, appeared to be in excellent health with no evidence of progression of his disease and no signs of poor prognostic factors, such as lymphadenopathy, oral candidiasis, or oral hairy leukoplakia.
His CD4+ count of 450 was also at a very satisfactory level.
The application for reconsideration included the following statement by the applicant:
SECONDLY - As to the positive reporting of the HIV (Human Immunodeficiency Virus). After talking with DR RICHARD KEMP who is the Director of Infectious Diseases Dept. of the Royal Brisbane Hospital, I am informed that of all people testing positive for this virus in the United States only fifty percent of all carriers within the first ten years of testing so far, move on into a condition of AIDS where medication and medical care is required. i.e. fifty percent of the population who carry the virus do not require any medical care within ten years in which this condition in their lives has been monitored. I am including a letter from Dr Kemp which was prepared after my Pastor inquired about my condition.
I therefore submit to you on the panel that - (1) At this point in time I am no drain at all on public funds. (2) There is at least a 50% chance that I may not need any medical care and what is the need to deport me and break my marriage when at this point of time there is no burden on government monies. I submit to you that if this concern about public monies cannot be overcome then if in the future my medical condition becomes a burden then my residency position could be reviewed.
On 30 October 1990 the Immigration Review Panel decided to recommend refusal and on 1 November 1990 Mr Dario Castello, a delegate of the Minister, accepted the recommendation to uphold the Department's primary decision not to approve the application for resident status.
It is Mr Castello's decision which is the subject of this application for review under the Administrative Decisions (Judicial Review) Act 1977 ("the AD(JR) Act"). A number of grounds were raised in the initial application but on the hearing before me Mr O'Gorman on behalf of the applicant relied only on grounds that the making of the decision was an improper exercise of the power because of a failure to take a relevant consideration into account and an exercise of power that was so unreasonable that no reasonable person could have exercised it and also that there was no evidence or other material to justify the making of the decision.
In his statement dated 29 November 1990 under s.13 of the AD(JR) Act the decision-maker summarised the major claims of the applicant as follows:
19. ........ ..
. his wife does not intend to leave Australia, if he should be required to leave; . he wishes to continue a normal married way of life with Mrs Raven in Australia which he now regards as home;
. he has only a 50% chance of developing AIDS and becoming a charge on public funds; . the health objection, which is not a legal requirement, should be waived.
The decision-maker stated that in relation to the third point he had taken into account the CMO's opinion together with Dr Kemp's letter of 12 October 1990 and the applicant's statement "in his reconsideration application that there is at least a 50% chance that he will not need medical care within the first 10 years he remains HIV positive". The s.13 statement continued:
22. On balance, I am of the opinion that the claims advanced by the applicant and Doctor Kemp's medical report do not demonstrate that the applicant meets the required medical standards for resident status and that he would not, at some time, become a significant charge on public funds which would be attributable to his HIV positive condition. In forming that view, I give substantial credence to the decision of the Commonwealth Medical Officer, which addresses a longer term prognosis of Mr Raven's condition.
23. In relation to the last point, I accept that the requirement for the applicant to satisfy normal medical criteria was not prescribed in law. However, in arriving at my decision, I took into consideration the claims of the applicant and the policy requirements of the Interdepartmental Instructions Manual, Grant of Residential Status Handbook (No 2. Pt. 2 paragraph 1.1(iv)(b). Where applicants meet the requirements of Section 6A(1)(b), as applies in this application, and then fail health and character criteria or general public interest criteria (or cannot justify waiving them) the application will after a consideration of all the particular claims of the applicant be generally rejected. In this particular case, in reaching my decision to deny the application, the particular circumstances of the applicant were carefully considered. However, I could see no compelling reason to depart from the relevant Departmental policy which applied at that particular point in time. Although discretion existed for me to waive the medical objection, I was not obligated to exercise that discretion. Upon a full consideration of the facts, I decided not to exercise discretion in favour of the applicant on the basis that, on balance the claims for waiving the health requirements were not such as to negate the decision by the Commonwealth Medical Officer.
24. I have given considerable weight to the claims of the applicant, Mrs Raven and their supporters, that the couple should be permitted to reside together in Australia. The applicant has resided in Australia for four years. I accept that since moving to Brisbane, the applicant has developed and formed new relationships which have given his life new values. I accept that his marriage to Mrs Raven has been assessed as genuine and lasting. I have taken into consideration that Mrs Raven says she is unable to leave Australia and separation from the applicant would be devastating for her. I have accepted that there have been substantial beneficial changes to the applicant's life and circumstances during the last two years of his stay in Brisbane.
25. Against the weight that I have given to these aspects, I have balanced the finding by the Commonwealth Medical Officer of the Department of Community Services and Health that the applicant does not satisfy the medical requirements for resident status and that the applicant will become a significant charge on public funds. In summary, I have decided that the advice of the Commonwealth Medical Officer is of major importance in that it provides a longer term view of the applicant's prognosis should he remain in Australia and outweighs the claims of Dr Kemp. Dr Kemp's comments refer only to the present medical condition of the applicant and do not refer to the applicant's future medical condition.
At the time he made the decision, Mr Castello also referred to Policy Control Instruction 598 dated 23 June 1989 which directed an amendment, effective immediately, to the Health Standards handbook by adding confirmed serological HIV antibody test as a cause for recommending rejection. Prior to this the relevant standard had been confined to AIDS or an AIDS related condition.
Mr O'Gorman argued that the decision-maker erred in making a decision on the basis that the applicant would contract AIDS and thus become a charge on public funds. He said there was no evidence of this and that even if the CMO's report of 30 May 1990 in the printed part amounted to a statement that the applicant would become a charge on public funds, that opinion was recanted in the handwritten addition. Put another way, Counsel said there was a relevant fact not taken into account, namely that the applicant may never contract AIDS. He said that there was an express finding that the applicant would contract AIDS and this was plainly incorrect; cf Western Television Ltd v Australian Broadcasting Tribunal (1986) 12 FCR 414 at p 449. The applicant's case on unreasonableness, in the Wednesbury sense, rested on the same basis. It was argued that the fact that there was no evidence before the decision maker that the applicant would develop AIDS and therefore become a charge on the public purse meant that the decision was manifestly unreasonable. However, Mr O'Gorman conceded that if the decision-maker merely thought that the applicant may develop AIDS, then the decision could not be said to be unreasonable in the relevant sense. It was accepted that a person who has AIDS does in fact become a significant charge on public funds.
In my opinion, this case turns on a proper analysis of the decision made and the matters relied on by the decision-maker.
The case presented by Miss Wilson, who appeared for the respondent, was that the decision-maker did not form a factual conclusion that the applicant would develop AIDS.
In his application for reconsideration, in the paragraph commencing "Secondly", the applicant correctly restated the essence of what Dr Kemp had said in his letter of 12 October 1990. However, in the next paragraph, he moved from there to a position which was not supported by anything Dr Kemp had said. It was not the case that there was "at least a 50% chance that (the applicant) would not need any medical care" for AIDS. Dr Kemp's letter did not say that.
An affidavit sworn by Dr Kemp was filed on behalf of the applicant and he was cross-examined at the hearing before me. In his affidavit Dr Kemp deposed that research had been conducted in San Francisco concerning a group of patients who had had the virus for a period of 10 years. Of these, 48% at the 10 year mark had developed full blown AIDS, 25% were perfectly well and a further 25% were partially sick with occasional fever and flu. In his affidavit, Dr Kemp gave the following prognosis for the applicant:
10. At present, factors which predict the progression of the disease in individual patients are not well characterised and although in some cases a CD4+ count may suggest a progression of the disease, in others the change in count may be short lived and not indicative of progression at all.
11. If the clinical signs of the disease remain negative as they do at present in Mr Raven, then I can remain fairly positive that the full blown AIDS syndrome will not develop, particularly when a measure of virus activity, the P24 antigen in the blood is, in this particular case, unreactive in the estimation performed in November.
12. In summary, Mr Raven is H.I.V. positive but he demonstrates as yet, none of the clinical signs and symptoms associated with the progression of the disease to a point where treatment for AIDS is required and hence there is no suggestion that in the immediate future he would, because of this, generate major costs on the health care system in this State or country.
In cross-examination Dr Kemp said that of the 25% in the research program who appeared to be perfectly well it could not be said that they would not thereafter start to exhibit some of the symptoms of the disease. The longer a group of patients were followed, the more of them qualified for the diagnosis of AIDS. He said he inserted the phrase "in the immediate future" in para 12 of his affidavit because "for any person that's all one can say".
Care needs to be taken as to the use of evidence of this kind on an AD(JR) Act application. When the ground relied on is failure to take a relevant consideration into account (s.5(2)(b)) or non-existence of a fact (s.5(3)(b)) it may be permissible to adduce evidence of other matters which the decision-maker should have taken into account but did not, or evidence which proves the non-existence of the fact in question. In the latter event, the applicant has to actually negative the fact relied on by the decision-maker: Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 13 FCR 511 at pp 520-1 per Wilcox J. Where the ground is unreasonableness (s.5(2)(g)) it would seem the Court is confined to the material which was before the decision-maker. In the present case the affidavit of Dr Kemp and his evidence before me did not provide any material beneficial to the applicant's case additional to that which was in the letter of 12 November 1990. In particular, in his affidavit and evidence Dr Kemp did not purport to say the applicant would not contract AIDS or that he had a 50% chance, or any other percentage chance, of not contracting AIDS. Indeed his affidavit and evidence made it clear that he was not speaking of anything beyond the immediate future.
I think that although para 25 of the s.13 statement might have been better expressed, the true nature of the reasoning adopted by the decision-maker appears from para 22 where he is saying in substance that he is not convinced that the applicant will not become a charge on public funds.
Coming to para 25, the first sentence in itself may be not a totally accurate summary of the CMO's view, but the decision-maker has already set out in para 21 a full and accurate restatement of that view. In the next two sentences he contrasts the views of the CMO and Dr Kemp and notes, correctly, that the former provides a longer term view of the applicant's prognosis should he remain in Australia. The very word "prognosis" picks up what the CMO had said, viz that the prognosis was not good and that future care and medication would most probably be considerably expensive. This is the language of forecast and estimation, not certainty.
Thus I conclude that the decision-maker did not make his decision on the basis of any conclusion that the applicant would, as a matter of certainty, contract full blown AIDS at some time in the future. Even if he did rely on such a conclusion, the evidence does not establish that this is not the case.
Turning to the issue of reasonableness, once it be accepted that the decision-maker was not proceeding on the basis that the applicant would contract AIDS, it follows from the concession to which I have already referred that the decision was not unreasonable. I should add that I have no doubt this concession was correct.
In my opinion therefore the applicant has not made out a case of relevant legal error in the making of the decision.
I think I should also say that even if I were satisfied that a ground for review was made out, I would in the exercise of the discretion conferred by the AD(JR) Act not send the matter back for reconsideration. In Akers v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 363 at p 376 Lee J. said:
Whilst the process of judicial review of administrative decisions is concerned only with errors of law and is not concerned in any way with a review of the merits of an application, it is necessary to have some regard to the worth of the application when determining whether the discretion to grant relief should be exercised.
Sad though the personal circumstances are, one must accept the facts that the applicant undoubtedly has the HIV virus and although it is equally clear he has not contracted full blown AIDS, his prospects for not doing so cannot be guaranteed beyond the immediate future. That being so, in the light of the Departmental policy referred to it cannot be reasonably supposed that the same decision would not be made if the matter were to be referred for reconsideration. If the applicant were to make out a case, which I do not think he has, it would be one dependent on a formalistic analysis of the s.13 statement. I do not think the interests of the applicant would be served by raising false hopes of a further consideration which might turn out favourably for him.
The application will be dismissed. Because of the compassionate factors involved, I shall make no order as to costs.
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