Salma v Minister for Immigration
[2019] FCCA 3646
•26 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SALMA & ORS v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3646 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Temporary Graduate visa application – application for judicial review of decision of Administrative Appeals Tribunal to affirm a decision of a Delegate of the Minister for Immigration to refuse to grant Temporary Graduate visas to the applicants because they did not satisfy cl.485.216(1) and (3) of the Migration Regulations 1994 (Cth) – second applicant did not satisfy Public Interest Criterion 4005(1)(c)(ii)(A) of Schedule 4 to the Migration Regulations 1994 (Cth) that he be “free from a disease or condition in relation to which the provision of health care or community services would be likely to result in a significant cost to the Australian community in the areas of health care and community services” – applicants’ grounds contended that Administrative Appeals Tribunal failed to grant reasonable time to refute Medical Officer of the Commonwealth’s findings and that Administrative Appeals Tribunal made jurisdictional error to accept medical evidence which was not sufficiently supported by evidence – Administrative Appeals Tribunal bound to accept Medical Officer of the Commonwealth’s reports pursuant to reg.2.25A(3) of the Migration Regulations 1994 (Cth) – grounds otherwise seek impermissible merits review in this Court – no jurisdictional error established by the applicants – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.65, 359A, 505 Migration Regulations 1994 (Cth) |
| Cases cited: Han v Minister for Home Affairs (2018) 336 FLR 143 Han v Minister for Home Affairs [2019] FCA 331 Minister for Immigration and Multicultural Affairs v Seligman (1999) 85 FCR 115 |
| First Applicant: | UMME SALMA |
| Second Applicant: | SM MAKEEM ARHAM |
| Third Applicant: | SM SAFEEN ARHAM |
| Fourth Applicant: | SM DIDAR HOSSAIN |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1492 of 2019 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 26 November 2019 |
| Delivered at: | Sydney |
| Delivered on: | 26 November 2019 |
REPRESENTATION
| The First Applicant appeared in person and on behalf of the Second, Third and Fourth Applicants. |
| Counsel for the First Respondent: | Ms K. Hooper of Counsel |
| Solicitors for the First Respondent: | DLA Piper |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 18 June 2019 is dismissed.
The First and Fourth Applicants pay the First Respondent’s costs of the proceeding in the sum of $6,100.
Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth) the Applicant have up to and including 30 January 2020 to file any Notice of Appeal from orders 1 and 2 above in the Federal Court of Australia.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1492 of 2019
| UMME SALMA |
First Applicant
SM MAKEEM ARHAM
Second Applicant
SM SAFEEN ARHAM
Third Applicant
SM DIDAR HOSSAIN
Fourth Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
EX TEMPORE
(Revised from Transcript)
Introduction
The Applicants in this proceeding are as follows:
a)the First Applicant is a female citizen of Bangladesh aged 36 years, having been born on 31 October 1983;
b)the Second Applicant is the son of the First and Fourth Applicants and a male citizen of Bangladesh aged six years, having been born on 11 January 2013;
c)the Third Applicant is the son of the First and Fourth Applicants and a male citizen of Bangladesh aged one year, having been born on 28 January 2018; and
d)the Fourth Applicant is the husband of the First Applicant and a male citizen of Bangladesh aged 37 years, having been born on 19 October 1982.
(and collectively the Applicants).
By Application filed in this Court on 18 June 2019 they seek to quash and impliedly have re-determined in accordance with law the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 21 May 2019 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister), dated 15 October 2018 refusing to grant to them Temporary Graduate (Graduate Work Stream) (Class VC) (Subclass 485) visas (Temporary Graduate visa(s)).
Background
The Applicants applied online for the Temporary Graduate visas on 17 March 2018. The First Applicant was the primary Applicant and she had to satisfy cl.485.216(1) and (3) of the Migration Regulations 1994 (Cth) (Regulations) such that she and the other Applicants, as members of her family unit, satisfied Public Interest Criterion 4005 (PIC 4005) of Sch.4 to the Regulations which relevantly required that they all be “free from a disease or condition in relation to which the provision of health care or community services would be likely to result in a significant cost to the Australian community in the areas of health care and community services”: see PIC 4005(1)(c)(ii)(A).
Section 65(1)(a)(i) – (ii) of the Migration Act 1958 (Cth) (the Act) provides that the Minister cannot grant a visa unless satisfied (amongst other criteria) that the health criteria for the relevant visa, as prescribed by the Act or the Regulations, have been satisfied.
Regulation 2.25A(1) of the Regulations requires that the Minister, in determining whether an applicant for a visa satisfies the criteria for the grant of a visa, seek the opinion of a Medical Officer of the Commonwealth (MOC) on whether the applicant or another person meets the requirements of PIC 4005. This regulation was made under s.505 of the Act which permits the Regulations to provide that the Minister, when required to decide whether an applicant for a visa of the relevant class satisfied the criterion, is to get a specified person to give an opinion on a specified matter, and is to take that opinion to be correct for the purposes of deciding whether the applicant satisfies the criterion.
Unfortunately, as frankly disclosed in the Temporary Graduate visa application form, the Second Applicant suffers from Down syndrome. The Applicants were requested and did attend medical examinations in connection with their Temporary Graduate visa application and a MOC gave an opinion dated 7 June 2018 (MOC opinion) with respect to the Second Applicant, which in short opined that he did not satisfy PIC 4005(1)(c)(ii)(A) and stated as follows:
The applicant is a 5 year old person with:
- Moderate developmental delay.
Form and severity of the applicant's condition: the applicant has global developmental delay assessed in the moderate range, associated with trisomy 21. He is anticipated to require supported education once he commences school, and requires assistance with activities of daily living beyond that expected of his age. Provision of services to a hypothetical person in Australia with the same condition as the applicant and at the same severity: a hypothetical person in Australia with the same condition as the applicant, at the same severity, would be likely to require on-going disability support services and educational support. This condition is likely to be Permanent.
These services would be likely to include:
Special education services
State disability services
Provision of these health care and/or community services would be likely to result in a significant cost to the Australian community in the areas of health care and/or community services.
In preparing this opinion, I have had regard to the information available to date concerning the applicant, including, but not limited to the visa medical assessment dated 12th April 2018, preschool developmental summary dated 6th July 2017, and report from paediatrician Dr Kelly dated 22nd May 2018.
By email dated 22 June 2018 the Department of the Minister (Department) sent a copy of the MOC opinion to the Applicants and invited them to comment on it. In response, the First Applicant forwarded to the Department further medical reports relating to the Second Applicant and, in particular, a report from Canterbury Hospital dated 22 May 2018, which described his condition as follows:
Background
Makeem was born by normal delivery at Canterbury Hospital at 37+3 weeks gestation. Apgar scores were 9 and 9 and his birth weight was 2.555kg.
Trisomy 21 was identified only after delivery and Makeem was transferred to Westmead Children’s Hospital where he was diagnosed with a complex congenital heart defect (AVSD plus PDA and bicuspid aortic valve). The defect was surgically repaired on 26/3/13. Makeem is still being followed up by the cardiologists and may need further cardiac surgery.
Makeem had a developmental assessment performed Bankstown Community Health Centre on 27/11/15 when he was 2 years 10 months old. It identified him to have moderate global developmental delay.
Decision of Delegate
In her Decision Record the Delegate set out cl.485.216 and PIC 4005 of the Regulations and in the result, based on the MOC opinion, found that cl.485.216(1) and (3) had not been met by the Applicants and she refused to grant to them Temporary Graduate visas.
Decision of Tribunal
The Applicants applied to the Tribunal for merits review of the decision of the Delegate through their solicitor and registered migration agent, Mr Dobbie, on 2 November 2018 and gave a copy of the Decision Record of the Delegate to the Tribunal at the same time.
By letter dated 6 February 2019 the Tribunal advised the Applicants that a further opinion could be obtained from a MOC. The Applicants took up that opportunity and under cover of an email dated 18 February 2019 Mr Dobbie on their behalf sought that a further opinion be obtained and also sent a report to the Tribunal dated 18 December 2018 from a paediatric visiting medical officer at Canterbury Hospital, Dr Harsha Gowda, which stated as follows:
Makeem ARHAM has trisomy 21 (DOWNS SYNDROME) which is a genetic condition. He is 5 years 11 months. At birth, Makeem had a congenital cardiac condition called atrioventricular septal defect and repaired on 26th March 2013. He is on 5mg lisinopril as medication and has been followed up by Paediatric cardiologist Dr Garry Sholler who has indicated that Makeem might need surgery at the age of 10 years.
…
From a developmental perspective, Makeem has been assessed to have moderate global developmental and cognitive delay. His receptive speech seems to be reasonable and can follow commands and directions. Makeem has demonstrated expressive and fine moto delay. He receives NDIS approved speech and occupational therapy services. In addition, he will need to be placed in a special school to meet his needs when he starts his school next year.
As per parental report his estimated financial needs for the next 1.5 year is as follows
…
The overall estimate is 25000 dollars for the next 18 months
The above estimate is calculated for a boy with Makeem’s condition who has special needs based on his present medical issues.
Dr Gowda thus estimated that the Second Applicant would have a final need for medical type services of $25,000 over the following 18 months.
By an opinion of a Review Medical Officer of the Commonwealth (RMOC) dated 21 February 2019 (RMOC opinion) it was again concluded that the Second Applicant did not satisfy PIC 4005(1)(c)(ii)(A).
By letter dated 6 March 2019 the Tribunal invited the Applicants to a hearing on 18 April 2019, which was accepted by a Response to Hearing Invitation dated 11 March 2019 indicating that Mr Dobbie would attend the Tribunal hearing. Through some apparent oversight or misadventure, the RMOC opinion was not provided to Mr Dobbie until 17 April 2019, when the Tribunal sent a copy of the RMOC opinion by email to Mr Dobbie under s.359A, inviting comment within a time period up to 1 May 2019.
Mr Dobbie sent a request by email dated 17 April 2019 that it be brought to the RMOC’s attention that there had been no reference to “the government policy on significant cost for a temporary residence visa”. It was then confirmed to the Tribunal on 17 April 2019 by the costs assessment team that the RMOC author had had regard to significant costs being for 18 months in the sum of $109,500. The evidence at [10] of the affidavit of the First Applicant dated 17 June 2019, which has been read in this proceeding, indicated that the cost breakdown had been supplied to the Applicants by the Tribunal on 18 April 2019.
The Tribunal hearing took place as scheduled on 18 April 2019 with all of the Applicants and Mr Dobbie being present to give evidence and present arguments.
In its Decision Record the Tribunal referred to both the MOC opinion and the RMOC opinion and found, based on them, that PIC 4005(1)(c)(ii)(A) had not been satisfied.
At [20] – [23] of its Decision Record the Tribunal stated as follows:
[20] Following the hearing, the Tribunal wrote to the applicant on 18 April 2019 under section 359A confirming that the RMOC had regard to the issue of significant cost and provided a breakdown of costs pertaining to the RMOC’s assessment of significant cost. The applicant was invited to provide a response and/or comments to the information by 2 May 2019.
[21] As of the date of this decision no response has been received by the Tribunal.
[22] At the hearing of 18 April 2019, the applicant was invited to comment on the Tribunal’s preliminary view on the information before it, that the RMOC’s opinion is valid. The applicant did not provide a response or comment.
[23] As noted by the representative, the Tribunal is required to take the opinion of the MOC to be correct for the purposes of deciding whether a person meets a requirement or satisfies the criterion. The representative brought to the Tribunal’s attention Han v Minister for Home Affairs & Anor [2018] FCCA 2207 in which the Court considered whether the MOC’s opinion was in accordance with the law.
Further, at [32] – [36] of its Decision Record the Tribunal stated as follows:
[32] The Tribunal has before it, two opinions from Medical Officers of the Commonwealth in relation to Master SM Makeem Arham. Both opinions come to the same conclusion being the applicant does not satisfy PIC 4005(1)(c)(ii)(A).
[33] The RMOC in their report of 21 February 2019 identified the form or level of the condition suffered by Master SM Makeem Arham as moderate developmental delay associated with trisomy 21 and applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition.
[34] The RMOC states that the applicant has been assessed for the period of one year and six months.
[35] After considering all of the above, the Tribunal is satisfied that it has obtained an opinion from a Medical Officer of the Commonwealth, the most recent being 21 February 2019. The Tribunal finds it is satisfied for the above reasons that the opinion is a valid opinion and must be taken by the Tribunal to be correct.
[36] Accordingly, based on the opinion of the RMOC, the applicant does not satisfy public interest criterion 4005(1)(c).
Accordingly, the decision of the Delegate to refuse to grant the Temporary Graduate visas to the Applicants was affirmed by the Tribunal.
Grounds of Attack on Tribunal Decision in this Court
The Applicants relied upon the following Grounds:
The grounds on which the review of the decision of the Second respondent is sought is outlined as follows;
i.The tribunal made a jurisdictional error in failing to give reasonable time to adduce supporting evidence, and did not accord to procedural fairness.
Particulars
I. The tribunal's decision to affirm the original decision of the First Respondent was on the basis of a failure to satisfy the criteria specified under clause 485.216(3) of the Migration Regulations 1994. In particular, the primary issue for determination was whether the applicant and the others included in the application for the Temporary Graduate visa (Graduate Work) satisfy the Public Interest criterion (PIC 4005) or in other words the Health Criteria.
II. The applicant's son Master SM Makeem, who was included in the application for visa is a person with moderate developmental delay associated with trisomy 21. Two opinions from Medical Officers of the Commonwealth (MOC) were granted to the tribunal. Both these determinations stated that the applicant's son does not meet the health requirement as the applicant's health condition is likely to result in significant cost to the Australian Community.
As a result, the applicant states the following;
Tribunal’s failure to grant reasonable time to obtain details to refute the MOCs findings.
Even though the Tribunal stated that it had invited the Applicant to comment on the Tribunal's view on the Medical report by 2 May 2019, it was precisely not sufficient time to obtain evidence to refute the medical evidence. Thus, it was not reasonable for the tribunal to expect the applicant to comment on the hearing date.
Therefore, the tribunal failed to give sufficient time to enable the applicant to obtain information to refute the findings of the medical officer. Hence, the tribunal did not accord to procedural fairness.
Tribunal made a jurisdictional error to accept medical evidence which is not sufficiently supported by evidence
The medical reports do not have substantial evidence to prove that my son does not in fact satisfy the health criterion. The evidence the Medical officer had referred to were only a few which included the same initial report granted by the first medical officer dated 12 April 2018. I contend that these reports are not sufficient to base such argument.
III. However, even though the Tribunal states that the MOC is not obliged to state what the significant cost would be, the applicant believes that the Tribunal has failed to act reasonably as this decision may cause detriment to all the applicants. I as the applicant seek this honourable court to determine whether it is justifiable to base all our visa applications based on a mere judgement of a medical report with no factual evidence.
IV. Moreover, the test of distinguishing between a hypothetical person to that of my son seems unfair as it should be noted that not every child is the same.
V. In light of all the above facts the applicants believe that the decision given by the Tribunal lacks reasonableness and fairness to the applicants.
Consideration
Ground 1 – Failure to give reasonable time to adduce evidence
In my view, the Tribunal did not fail to afford the Applicants procedural fairness. They were invited to the Tribunal hearing on 6 March 2019, being over a month before the hearing was scheduled for 18 April 2019.
In the intervening period they were given, albeit belatedly, the RMOC opinion on which Mr Dobbie then made enquiries, which were answered. The Applicants and Mr Dobbie, who is an accredited immigration specialist and respected lawyer who regularly appears as counsel in this Court, attended the Tribunal hearing and there is no evidence that any complaint was raised with the Tribunal that the hearing was being held prematurely, or that any adjournment was sought.
As at 18 April 2019 the Applicants still had until 1 May 2019 to make comments and submissions on the RMOC opinion (see [13] above), but did not do so, and the Tribunal’s decision was not then delivered until well after 1 May 2019, namely on 21 May 2019.
Further, there has been no suggestion of what else could have been differently or more advantageously done or put to the Tribunal by the Applicants if the Tribunal hearing had taken place at a later date. The simple fact of the matter is that, by force of reg.2.25A(3) of the Regulations, the Tribunal was bound to accept the MOC opinion and the RMOC opinion as “correct for the purposes of deciding whether a person meets a requirement or satisfies a criterion”: see Minister for Immigration and Multicultural Affairs v Seligman (1999) 85 FCR 115 at 127 [48] – [49], 129 [60] and 130 [69] per French (as he then was), North and Merkel JJ.
In my view, the Tribunal did not act legally unreasonably, capriciously or irrationally in the circumstances and this Ground is not made out.
Ground 2 – Tribunal made a jurisdictional error to accept medical evidence which is not sufficiently supported by evidence and legal reasonableness
This Ground really constitutes an appeal for merits review, which is not available in this Court. It has been repeatedly held that PIC 4005 is valid and not uncertain or arbitrary and the reference in it to “significant costs” does not lack objectivity in a legal sense: see the authorities referred to in Han v Minister for Home Affairs (2018) 336 FLR 143 and by Bromwich J on appeal in the Federal Court of Australia in Han v Minister for Home Affairs [2019] FCA 331.
Further, insofar as this Ground appears to suggest that there was “no factual evidence” for the evaluation of the health of the Second Applicant, such assertion fails at a factual level. The Applicants themselves had lodged medical evidence in support of their Temporary Graduate visa application, including the report from Dr Gowda, who had given an estimate of health costs for the Second Applicant for a period of 18 months.
Otherwise, this Ground simply appears to argue with Australian law and is not made out.
Conclusion
Nothing in the Grounds establishes that the Tribunal decision was affected by jurisdictional error and the Application filed in this Court is to be dismissed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 12 December 2019
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