Salma v Minister for Immigration - [2019] FCCA 3646

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FCCA 3646
Decision Date: 26 November 2019

CaseChat Overview and Summary

Salma and another applicant sought judicial review in the Federal Court of Australia of a decision by the Administrative Appeals Tribunal (AAT). The AAT had affirmed a delegate of the Minister for Immigration's refusal to grant Temporary Graduate visas to the applicants. The refusal was based on the applicants failing to satisfy specific criteria within the Migration Regulations 1994 (Cth), namely clause 485.216(1) and (3) for the first applicant, and Public Interest Criterion 4005(1)(c)(ii)(A) of Schedule 4 for the second applicant. The latter criterion concerned being free from a disease or condition that would likely result in significant cost to the Australian community in health and community services.

The applicants' grounds for judicial review alleged that the AAT had committed jurisdictional error. Specifically, they contended that the AAT failed to afford them reasonable time to refute the findings of a Medical Officer of the Commonwealth and that the AAT improperly accepted medical evidence that lacked sufficient evidentiary support.

Dowdy J considered the applicants' arguments in light of the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth). The Court noted that regulation 2.25A(3) of the Migration Regulations mandates that the AAT is bound to accept the reports of a Medical Officer of the Commonwealth. Consequently, the applicants' contention that the AAT erred in accepting this evidence was without merit. Furthermore, the Court found that the grounds raised by the applicants essentially sought a review of the merits of the AAT's decision, which is beyond the scope of judicial review. As no jurisdictional error was established, the application for judicial review was dismissed.

Orders